309 Ga. 203
Ga.2020Background
- Wilkey was indicted for possession of methamphetamine with intent to distribute; during the third day of his April 2015 trial he pled guilty.
- Thirteen days after pleading guilty and before sentencing, plea counsel learned of an outstanding arrest warrant/indictment against a co‑defendant that could be exculpatory for Wilkey and told the court this new information "would have an effect" on advice to the client.
- At the sentencing hearing counsel told the court Wilkey had "thirty days" to withdraw his plea; Wilkey did not know he had an absolute right to withdraw his plea prior to sentencing and did not ask to withdraw at that time. The court imposed a split 30‑year sentence.
- Wilkey later filed a motion to withdraw his plea; it was dismissed as untimely because the trial term had ended. He filed a habeas petition alleging (inter alia) ineffective assistance for counsel’s failure to advise of the statutory right to withdraw the plea prior to sentencing and for giving incorrect post‑sentence advice.
- The habeas court credited Wilkey, found plea counsel’s performance deficient and prejudicial, and granted relief. The Georgia Supreme Court affirmed, holding counsel should have advised Wilkey of his absolute pre‑sentencing statutory right to withdraw and that the Sixth Amendment right to effective assistance was violated.
Issues
| Issue | Wilkey's Argument | Warden's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to inform Wilkey of his statutory right to withdraw a guilty plea prior to sentencing constituted ineffective assistance under Strickland | Counsel failed to tell Wilkey of his absolute right to withdraw pre‑sentence and had newly discovered information that would have changed advice; counsel therefore performed deficiently | No constitutional right to withdraw plea; petitioner bears burden to produce complete record; failure to advise statutory right cannot alone support habeas relief | Yes. Counsel’s omission was constitutionally deficient; counsel should have advised client of absolute statutory right when new information arose, and habeas relief affirmed |
| Whether Wilkey established prejudice (reasonable probability he would have withdrawn the plea and gone to trial) | Wilkey testified he would have moved to withdraw immediately upon learning he could and would have insisted on trial | The trial was essentially over; Wilkey made plea decision earlier and cannot show he would have continued to trial; habeas court used wrong prejudice standard | Yes. Habeas court credited Wilkey’s testimony and found a reasonable probability he would have withdrawn pre‑sentence; prejudice established |
| Whether petitioner’s failure to supply full trial transcripts (plea colloquy) or a waiver finding bars relief | No waiver of the statutory right appears in the record; habeas record (sentencing transcript and habeas testimony) was sufficient | Petitioner had the burden to complete the record and failed to introduce plea colloquy transcript, so relief speculative | No. The habeas court’s factual findings were not clearly erroneous; no showing that Wilkey knowingly waived the pre‑sentence withdrawal right |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing ineffective‑assistance standard)
- Graham v. State, 300 Ga. 620 (defendant may withdraw a guilty plea for any reason prior to sentencing)
- Dos Santos v. State, 307 Ga. 151 (right to effective assistance includes advice about post‑conviction remedies and motions to withdraw plea)
- Blackwell v. State, 299 Ga. 122 (waiver of statutory rights to withdraw plea must be knowing, voluntary, and intelligent)
- Phelps v. State, 293 Ga. 873 (presumption that counsel’s performance falls within wide range of reasonable professional conduct)
- Oubre v. Woldemichael, 301 Ga. 299 (prejudice standard in guilty plea context — reasonable probability petitioner would not have pleaded guilty)
- Griffin v. Terry, 291 Ga. 326 (appellate deference to habeas court factual findings on counsel effectiveness)
- Brooks v. State, 301 Ga. 748 (motion to withdraw guilty plea must be filed within same term of court as sentence)
- Humphrey v. Walker, 294 Ga. 855 (deference to habeas court credibility determinations)
- State v. Garland, 298 Ga. 482 (ineffective assistance denies a right of constitutional dimension)