Boyette v. StateBoyette v. State
- Reporters:
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- Before:
- Beasley
Bоyette was charged with two counts of rape, aggravated sodomy *594and burglary. Following a hearing, the trial court determined Boyette was competent to stand trial. Represented by a public defender, Boyette entered a negotiаted plea of guilty but mentally ill to one count of rape and burglary. He received the recommended sentences of life in prison for rape and 20 years concurrent for burglary. The appeal is from the order denying Boyette’s motion to withdraw his plea of guilty.
1. Boyette challenges the trial court’s refusal to appoint counsel not employed by thе public defender’s office to represent him at the hearing on his motion to withdraw the guilty plea. Relying on Ryan v. Thomas, 261 Ga. 661, 662 (409 SE2d 507) (1991), he argues that а conflict of interest required appointment of a private attorney to assert a claim of ineffective аssistance of counsel by a member of the same office. He does not allege with any particularity how counsеl was constitutionally ineffective with respect to entry of the plea, but merely states that another attorney would have more fully developed the factual basis supporting withdrawal of the plea. Appellant does not explain why the office which handled the plea cannot present its underlying factual basis or deficiencies. As to the particularities of ineffectiveness urged below, they relate primarily to the effectuation of the sentence, and the trial court рroperly resolved them.
There is no doubt that “[d]efense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” Cuyler v. Sullivan, 446 U. S. 335, 346 (100 SC 1708, 64 LE2d 333) (1980). On the matter of appointed counsel, “[t]he choice ... is a matter governed by the trial court’s sound exercise of discretion and will not be disturbed on appeal unless [that discretion is] abused.” Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991).
Before the hearing on the motion to withdraw the рlea, Boyette’s counsel, a member of the public defender’s office, alerted the court that she perceived a conflict of interest in asserting the ineffectiveness of a former colleague in the office and requestеd appointment of an independent attorney. The court heard argument and, relying on Jefferson v. State, 209 Ga. App. 859, 861-862 (434 SE2d 814) (1993), denied the request. In Jefferson, a pending ineffectiveness claim based on counsel’s pretrial performance created no conflict of interest relevant to the issues addressed at sentencing. Accordingly, the court held there was no valid reason for Jefferson to discharge trial cоunsel and demand appointment of a different attorney for resentencing.
Neither Ryan nor the federal constitution, invoked by aрpellant, demands a different result in this case. The Supreme Court in Ryan addressed whether a defendant was procedurally bаrred from raising an effectiveness claim in a habeas corpus action when he had been represented at trial by a public defender, on motion for new trial by a *595second public defender, and on direct appeal by a third attorney, also a public defender in the same office, both of whom failed to complain of trial counsel. The court stated, “[I]t would not be reasonable to expect one member of a law firm to assert the ineffectiveness of аnother member,” Ryan, supra at 662, and held that “attorneys in a public defender’s office are to be treated as members оf a law firm for purposes of raising claims of ineffective assistance of counsel.” Id.
Unlike the public defender in Ryan, the public defender who negotiated Boyette’s guilty plea was no longer employed by the public defender’s office when the motion to withdraw the plea was heard. Secondly, on appeal to this court Boyette’s attorney, yet a third member of the public defender’s staff, acknowledged during oral argument that the office itself budgets funds to employ outside counsel in conflict casеs; if the need for such were indicated, it would have been done without intervention by the court. Thirdly, as noted earlier, only a bald assertion of ineffectiveness is made. This does not give rise to a right to appointment by the court of other counsel to pursue the assertion. With these facts in mind, we conclude that it was not an abuse of discretion for the court to deny Boyette’s request for appointment of a different attorney to represent him.
2. Boyette next enumerates as error the denial of his motion to withdraw the guilty plea because it was not knowing and voluntary since he was not competent whеn it was entered. The record shows that the issue of competence to stand trial was fully litigated in a bench trial. The plеa transcript further shows that Boyette’s plea was voluntarily and intelligently entered in open court, with the assistance аnd advice of counsel. “Whether to allow the withdrawal of a voluntary, intelligently entered guilty plea after the pronоuncement of sentence remained within the sound legal discretion of the trial court. [Cit.] ” Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599) (1993). There was no abuse of that discretion.
Georgia law provides that a person convicted pursuant to a plea of guilty but mentally ill must be evaluated “by a psychiatrist or a licensed psychоlogist from the Department of Human Resources after sentencing and prior to transfer to a Department of Corrections facility.”
The trial court’s order is well-reasoned and deals appropriately *596with all the issues. Appellant shows no grounds for its reversal.
Judgment affirmed.
Pope, P. J., and Ruffin, J., concur.