McGee v. State
296 Ga. 353
| Ga. | 2014Background
- McGee pled guilty on January 31, 2001 to malice murder, aggravated battery upon a peace officer, and possession of a firearm by a convicted felon for the January 20, 1999 shooting death of police officer Robbie Bishop.
- The trial court sentenced McGee to life without parole for malice murder and 20 years for aggravated battery, the latter to run concurrent with the malice murder sentence.
- On February 10, 2014, McGee filed a motion to withdraw his guilty plea; the trial court denied it without a hearing on February 11, 2014.
- McGee then filed a motion for an out-of-time appeal on May 1, 2014; the trial court denied it without a hearing on May 6, 2014.
- In Case No. S14A1648, McGee appeals pro se from the denial of his motion to withdraw his guilty plea; in Case No. S14A1649, he appeals pro se from the denial of his out-of-time appeal.
- The Court affirms in Case No. S14A1648 and vacates and remands Case No. S14A1649 for consideration of McGee’s claim of ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the withdrawal of plea was timely or jurisdictionally barred | McGee argues failure to withdraw timely should be considered. | State contends the motion was untimely and the court lacked jurisdiction to grant it. | Untimely; no hearing required; trial court affirmed. |
| Whether aggravated battery properly merged with malice murder and counsel was ineffective | McGee asserts merger required and counsel was ineffective for not pursuing it on direct appeal. | State argues merger and direct-appeal vehicle issues not properly resolved here; seeks further proceedings. | Remand to address ineffective assistance of counsel; merger issue potential error. |
Key Cases Cited
- Henry v. State, 269 Ga. 851 (Ga. 1998) (trial court lacks authority to allow withdrawal after term ends)
- Brown v. State, 280 Ga. 658 (Ga. 2006) (untimely post-plea motions denied without hearing)
- Nazario v. State, 293 Ga. 480 (Ga. 2013) (motion to vacate conviction not appropriate vehicle for direct-appeal issues)
- Harper v. State, 286 Ga. 216 (Ga. 2009) (motion to vacate conviction is not a substitute for direct appeal)
- Nesbitt v. State, 295 Ga. App. 394 (Ga. App. 2008) (ineffective assistance standard in context of post-conviction review)
- Givens v. State, 294 Ga. 264 (Ga. 2013) (merger of lesser offenses with malice murder addressed on merits)