657 S.E.2d 878 | Ga. Ct. App. | 2008
Otto Geyer was indicted on charges of aggravated child molestation, aggravated sexual battery, and two counts of child molestation, for offenses involving his ex-wife’s niece. While represented by an attorney, Geyer pled guilty to two counts of child molestation. The state agreed to not prosecute the remaining charges. After holding plea and sentencing hearings, the court sentenced Geyer to twenty years on one child molestation charge, thirteen of which would be served in confinement, and twenty years of probation on the other molestation charge. Geyer filed a motion to withdraw the guilty plea. He appeals from the court’s denial of the motion.
1. Geyer contends his plea was not entered into knowingly and voluntarily. Specifically, he states that before he entered the guilty plea, he was told by counsel that counsel would meet with the judge in chambers, that Geyer was a candidate for probation and that he would receive a sentence of two to three years in prison at most. Geyer says his decision to plead guilty was linked to counsel’s assertions. This enumeration presents no basis for reversal.
A review of the record makes it clear that Geyer’s guilty plea was knowing and voluntary. At the plea hearing, Geyer admitted that he was in fact guilty, acknowledged that he had been informed of his rights, and affirmed that he had not been promised anything, threatened or coerced. Geyer affirmed that he was not suffering from any mental incapacity and was not under the influence of any drug or narcotic. Geyer’s attorney stated that he had explained Geyer’s rights to him and that Geyer seemed to understand them.
The state then recommended to the court a sentence of twenty years on one count, to serve fifteen in prison, and twenty years of probation on the other count. The court asked Geyer if he understood
Geyer executed a “Guilty Plea & Waiver of Rights” form in which he stated that he had been informed of his various rights and the possible sentences he could receive. He agreed that he was waiving his trial rights freely and voluntarily, that he was satisfied with his attorney’s assistance, that he was not promised any special treatment in exchange for his plea, and that he was not pleading guilty because of any offer or hope of reward. The trial court found that the plea was knowing and voluntary, and accepted it. Sentencing occurred weeks later after another hearing.
After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of discretion.
2. Geyer contends the trial court improperly considered undisclosed prejudicial hearsay evidence in aggravation of punishment at sentencing. Geyer points to two written statements which were attached to a pre-sentence investigation report prepared by the probation department. One of the statements was written by the victim, and the other was written by Geyer’s ex-wife. Geyer says that the statements “assassinated” his character and were not provided to him or defense counsel prior to the sentencing hearing.
If a pre-sentence report contains any matter adverse to the defendant and likely to influence the decision to suspend or probate the sentence, it should be revealed to defense counsel by the trial judge in advance of the pre-sentence hearing.
Although on appeal Geyer contends that the statements were not provided to him or defense counsel for review, the transcript of the sentencing hearing shows that trial counsel was given the opportunity to review the statements, but that he declined because he said he was already familiar with their contents. We further note that both the victim and the ex-wife who authored the statements were in court and presumably available for cross-examination. In any event, as discussed above, it does not appear that the trial court used the statements to increase the length of the sentence it would have otherwise given.
3. Geyer contends the trial court improperly considered ex parte prejudicial hearsay evidence for purposes of sentencing. According to Geyer, an attorney told the judge in the hallway that Geyer had harassed the attorney’s son while awaiting sentencing, and a probation officer also discussed the matter with the judge.
At the sentencing hearing, the trial judge mentioned that someone reported that Geyer had been stalking or “making inappropriate contact with parties” while awaiting sentencing. Geyer then explained why he had been in the area and that he had no intention of harassing or stalking anyone. The court made no further comment about the incident.
Geyer maintains that the court violated Uniform Superior Court Rule 4.1, which states that judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding.
4. Geyer contends he received ineffective assistance of counsel during his sentencing hearing because his attorney failed to object to the consideration of the hearsay evidence at issue in Divisions 2 and 3.
In order to prevail on a claim of ineffective assistance of counsel, Geyer must show that counsel’s performance was deficient and that he was prejudiced by the deficient performance.
Judgment affirmed.
Hicks v. State, 178 Ga. App. 837 (344 SE2d 758) (1986).
See Crump v. State, 154 Ga. App. 359, 360 (268 SE2d 411) (1980).
See Hicks, supra at 837-838.
Green v. State, 193 Ga. App. 464 (388 SE2d 57) (1989).
See id.
Id. at 464-465.
Id. at 465.
See Palmer v. State, 248 Ga. App. 515, 518 (4) (546 SE2d 886) (2001).
See OCGA§ 16-6-4 (b) (1); Munsford v. State, 235 Ga. 38, 45-46 (218 SE2d 792) (1975).
See Brooks v. State, 232 Ga. App. 115 (2) (501 SE2d 286) (1998).
See Donelson v. State, 220 Ga. App. 688, 689 (4) (469 SE2d 861) (1996).
See generally Youmans v. State, 270 Ga. App. 832, 834 (1) (608 SE2d 300) (2004).
See Wright v. State, 265 Ga. App. 188, 190 (3) (593 SE2d 391) (2004).
Id.
Id. at 191 (3) (b).
