HUMPHREY v. THE STATE
S16A0197
Supreme Court of Georgia
JUNE 6, 2016
299 Ga. 197 | 787 SE2d 169
HUNSTEIN, Justice.
constructive possession required “both the power and the intention... to exercise dominion and control either directly or through another person.”
In any event, whether the firearm was “within arm‘s reach” was not disputed at trial, with the State even acknowledging in its closing argument that unlawful possession required the firearm to be “within... reach.” Indeed, there could be no reasonable dispute that whoever used a gun to shoot Camp actually had a firearm within arm‘s reach at the time of the shooting. The only issue at trial was whether one of the defendants was the shooter and the others were parties to his crime. As a result, Anderson has not shown that the trial court‘s failure to remind the jury about the “within arm‘s reach” element of unlawful possession of a firearm had any effect on the outcome of his trial. See Howard v. State, 288 Ga. 741, 743 (2) (707 SE2d 80) (2011) (no plain error where trial court failed to instruct on elements of aggravated assault where undisputed evidence was that perpetrators intentionally fired weapons and defense was mistaken identity).
Judgment affirmed. All the Justices concur.
DECIDED JUNE 6, 2016.
David J. Walker, for appellant.
Gregory W. Edwards, District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
S16A0197. HUMPHREY v. THE STATE.
(787 SE2d 169)
Appellant Jamel Humphrey appeals the trial court‘s denial of his motion to withdraw guilty plea. For the reasons set forth below, we conclude that the trial court lacked jurisdiction to entertain Humphrey‘s motion, and thus, rather than denying the motion, the trial court should have dismissed it. We therefore vacate the judgment below and remand for the trial court to dismiss the motion.
In July 1998, Humphrey pled guilty to murder and was sentenced to life in prison. Pursuant to his plea agreement with the State, the trial court‘s sentencing order provided that Humphrey would be eligible for parole, but only after serving 25 years of his sentence. A decade and a half later, Humphrey moved to vacate his sentence, and the trial court denied the motion. On appeal, this Court reversed and remanded, holding that the sentencing court had lacked the authority to impose limitations on parole eligibility that conflicted with those prescribed by statute, and thus concluding that “[t]hat provision of the sentence — but only that provision — must be vacated.” Humphrey v. State, 297 Ga. 349, 351 (773 SE2d 760) (2015) (”Humphrey I“).
Subsequent to the entry of our opinion but prior to our issuance of the remittitur, Humphrey filed a motion to withdraw his guilty plea. After the remittitur issued, the trial court entered an order vacating “only that portion of Humphrey‘s sentence that purports to limit Humphrey‘s eligibility for parole.” The trial court thereafter summarily denied Humphrey‘s motion to withdraw. Humphrey now appeals, contending that, after this Court directed that his sentence be partially vacated, he had the right to withdraw his plea in its entirety at any time before the trial court resentenced him. We disagree.
1.
Humphrey contends that the effect of Humphrey I was to invalidate his sentence, thereby restoring his status to that of a defendant who has pled guilty but not yet been sentenced and, in turn, restoring his
plea is later adjudged to be void, “it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced.” Kaiser v. State, 285 Ga. App. 63, 66 (646 SE2d 84) (2007). See also Pierce v. State, 294 Ga. 842 (1) (755 SE2d 732) (2014) (approving, in dicta, trial court‘s determination that defendant was entitled to withdraw pleas on certain counts as a matter of right after sentences on those counts were vacated). Assuming, without deciding, that this premise is sound,2 we find that it is inapplicable here in any event, because Humphrey I invalidated only a discrete provision of Humphrey‘s sentence, expressly leaving all other provisions of his sentence intact and his plea thereon ineligible for withdrawal at this late stage. Humphrey I, 297 Ga. at 351 (“only that provision [limiting Humphrey‘s parole eligibility] must be vacated“). See also Murray v. State, 314 Ga. App. 240 (723 SE2d 531) (2012) (vacating of sentences on some but not all counts did not render defendant‘s plea on remaining counts subject to withdrawal as a matter of right); Hallford v. State, 289 Ga. App. 350 (1) (657 SE2d 10) (2008) (invalidation of an illegal condition of defendant‘s probation did not render defendant‘s plea subject to withdrawal as a matter of right); Diaz v. State, 279 Ga. App. 134 (630 SE2d 618) (2006) (invalidation of void sentence on aggravated child molestation count had no effect on separate sentence on rape count, and thus defendant not entitled to withdraw plea on rape count). Accordingly, Humphrey had no right to withdraw his plea; his out-of-term motion to withdraw was thus untimely; and the trial court therefore lacked jurisdiction to entertain the motion.
2. Humphrey also asserts in his appeal that his plea counsel rendered ineffective assistance, that his plea was not knowing and voluntary, and that the trial court erred in its resentencing order. Neither of the latter two claims were raised below, and both claims have thus been waived for appeal. See Barnes v. State, 291 Ga. 831, 833, n.2 (732 SE2d 752) (2012). As to Humphrey‘s ineffectiveness claims, to the extent they were not also waived, they cannot be decided by reference to the record, and therefore Humphrey‘s only avenue for recourse is an action for habeas corpus. See Pierce, 294 Ga. at 844.
Judgment vacated and case remanded with direction. All the Justices concur.
DECIDED JUNE 6, 2016.
Jamel Humphrey, pro se.
Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.