Spencer v. State
2011 Ga. App. LEXIS 418
Ga. Ct. App.2011Background
- In 1999 Spencer entered negotiated guilty pleas to multiple felonies and received 40 years to serve.
- In March 2010 Spencer moved to withdraw his plea and seeking an out-of-time appeal.
- The trial court denied the out-of-time appeal motion for lack of direct appeal entitlement and dismissed the withdrawal motion for being untimely within the term.
- Spencer argues the trial court should have held an evidentiary hearing and that trial counsel’s ineffective assistance frustrated his appeal rights.
- The State recommended and the court considered whether Spencer’s sentence could be void, affecting withdrawal rights.
- Spencer’s kidnapping sentences were 20 years each, concurrent with armed robbery terms; the sentence range for kidnapping when victim was 14 or older was 20 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was an evidentiary hearing required on the out-of-time appeal motion? | Spencer | Spencer | No evidentiary hearing required; no right to direct appeal based on record |
| Does Spencer have a right to withdraw his guilty plea post-sentence due to ineffective assistance claim? | Spencer | State | Not unless the sentence is void; no void sentence shown |
| Was Spencer’s sentence void, permitting withdrawal of the plea as of right? | Spencer | State | Sentence within statutory range; not void; withdrawal denied |
Key Cases Cited
- Upperman v. State, 288 Ga. 447 (2011) (discusses direct appeal entitlement and evidentiary hearing not required when no right to appeal exists)
- Morrow v. State, 266 Ga. 3 (1995) (out-of-time appeal remedies framework)
- Kaiser v. State, 285 Ga.App. 63 (2007) (absolute right to withdraw plea before sentence; but limits when not within term)
- McKiernan v. State, 286 Ga. 756 (2010) (trial court loses jurisdiction if motion to withdraw not timely filed)
- Chester v. State, 284 Ga. 162 (2008) (earlier view on void sentences; partly overruled later)
- Williams v. State, 287 Ga. 192 (2010) (merger issues do not render a sentence void)
- Richardson v. State, 306 Ga. App. 269 (2010) (post-Garza habeas avenue for certain merits challenges)