Tanzor Cherry and Lydrail Jones were charged with aggravated assault upon Jason Shuman and other offenses. Jones pled guilty to all charges, while Cherry pled guilty only to the aggravated assault сharge. After pronouncement of sentence but before the term of court had ended, both defendants moved to withdraw their pleas. In Case Nos. A99A1110 and A99A1195, they have filed their respective appeals from the trial court’s denial of their motions.
Jones’s original defense lawyer was Richardson, but after entry of his guilty plea Jones was represented by another attorney. Chеrry was and is represented by attorney Hubbard. Assistant district attorney Chapman prosecuted the case. Assistant district attorney Camesale participated in plea discussions.
Statemеnts by Chapman at the pretrial hearing showed the following. The incidents giving rise to these criminal charges occurred at a high school. Animosity existed between Cherry and Shuman as a result of their mutuаl interest in the same girl. Cherry, Jones, and another individual were in a car when they approached Shuman and others walking on a sidewalk in front of the school. After words were exchanged between the two groups, Jones was struck in the face by an unidentified companion of Shuman’s. After Cherry handed Jones a gun, Jones exited the vehicle and ultimately shot Shuman three times. The first shot hit his foot; the second hit his abdomen; and the third penetrated his heart, causing a near-fatal injury that necessitated extensive, continuing surgeries. Shuman was unarmed.
Guilty pleas had been negotiated undеr which the prosecuting attorney would recommend that Jones and Cherry receive sentences that would require them to serve ten and five years, respectively. At a pretrial heаring, defense counsel argued that the recommended sentences were too harsh based on facts which they thought the evidence would show. After noting that a student previously had been killеd at the school and that part of the purpose of sentencing is its deterrent effect on others, the judge commented that, if anything, he thought the sentence recommendations were too lenient but would reluctantly go along with them. After a brief recess following the pretrial hearing, defendants elected to proceed to trial. A jury was selected and impaneled later that day.
Although the following parts of the trial proceedings were not reported, statements made and testimony given by the attorneys at the hearing on defendants’ motion to withdraw the pleas show that the following occurred. At the beginning of trial the following morning, the parties appeared in court with their attorneys and parents. Outside the presence of the jury, the judge conducted a bench conference with Hubbard, Richardson, Chapman, and possibly Carnesale. The judge conveyed to the attorneys that he had previously presided over a сase with facts very similar to the one at bar. In the earlier case, the judge came to believe that the defendants’ failure to enter pleas of guilty
Fоr a number of reasons, Uniform Superior Court Rule 33.12 provides that after sentence is imposed a guilty plea may be withdrawn only to correct a manifest injustice. State v. Evans,
1. In this appeal, Jones claims that his guilty plea was not intelligently entered, in that Richardson erroneously advised him that he could not prevail on his self-defense claim because the evidence would indisputably show that Shuman was not in possession of a weapon. Jones thus contends that his plea was the product of ineffectivе assistance of counsel.
To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [Jones] must show counsel’s performance fеll below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s errors, he would not have pleaded guilty. A court’s finding that cоunsel has rendered effective assistance will be affirmed unless it is clearly erroneous. [Cit.]
Martin v. State,
Jones maintains that under OCGA § 16-3-21 he could have established that he was in reasonable fear of great bodily injury even though Shuman did nоt have a weapon. He asserts he could have accomplished this primarily through witnesses. According to Jones, this testimony would have shown that the first shot was fired to prevent Shuman from physically assaulting him, and the second shot, which inflicted the near-fatal injury, was to protect himself because Shuman then lunged toward him. Richardson was of the opinion that the jury would nonetheless reject Jones’s claim of self-defense, because the supposed warning shots had struck Shuman in the foot and abdomen and Shuman’s act of lunging at Jones would be viewed as attempted self-defense. On the basis of the record before us, we cannot say that this was not a reasonable assessment. Consequently, the court did not abuse its discretion in refusing to allow Jones to withdraw his guilty plea.
2. But Cherry’s challenge to his guilty plea stands on a different footing. Although
Skomer v. State,
Although the judge in this case did not participate in plea negotiations or expressly state that Cherry’s sentence would be harsher if he did not plead guilty, the judge did make comments at the pretrial hearing to the effect that the recommended sentence was too lenient. There was nothing improper in these comments in the context in which they were made. But after the trial had begun, the judge called a halt to the proceedings by suggesting that a decision by the defendants to proceed to trial would be unwise. This resulted in the renewal оf plea discussions followed by Cherry’s entry of his guilty plea. Under the circumstances, we must conclude that, as in Skomer, there was a substantial likelihood that Cherry was unduly influenced to plead guilty by the totality оf the judge’s comments. Under the record before us, the State has not carried its burden of showing that Cherry’s guilty plea was voluntarily entered. Therefore, Cherry should have been allowed to withdraw his plea.
Judgment affirmed in Case No. A99A1195.