Carlos E. Valldeparas appeals from the trial court’s dismissal of his pro se “Motion to Modify Sentence” as untimely. Valldeparas argues on appeal that the Superior Court of Gwinnett County erred, and his appointed counsel was ineffective, in failing to construe his motion as one for habeas corpus and thus in failing to address the motion on its merits.
While represented by retained counsel, Valldeparas pled guilty to four counts of child molestation on August 25, 2011, and the trial court sentenced him to forty years, to serve twenty. On September 20, 2011, and October 26, 2011, Valldeparas filed pro se “Motion[s] to Modify Sentence.” The first requested a reduction in the sentence to “a more reasonable judgment in order that he may continue his contribution to society and his family.” The second motion raised issues of equal protection and fairness, citing other sentences imposed for similar crimes, and once again asked the court, based upon his “work history with law enforcement, his limited criminal history and his age” to modify its sentence “to a more reasonable and fitting judgment in order that he may continue his contribution to society.” Both motions were denied by written order without a hearing.
On November 23, 2011, Valldeparas filed a third pro se “Motion to Modify Sentence” (the “Third Motion”). In this motion, Valldeparas asserted that his guilty plea was not “intelligently made or fully understood nor wholly voluntary, but undertaken while under duress, stress, and prolonged anxiety.” He further asserted that his plea counsel was ineffective “by withholding information, misrepresenting facts, and adding an unnecessary, unethical urgency to the decision making process.” Valldeparas also acknowledged that any attempt to withdraw his guilty plea was barred by the “restriction on motions and expired court terms,” in addition to “the loss of entitled legal counsel during this critical stage of the criminal proceedings.” His motion once again sought modification of his sentence.
Despite Valldeparas’s acknowledgment in the Third Motion that he could not seek to withdraw his guilty plea, the trial court denominated the motion as a motion to withdraw a guilty plea in its orders setting the matter for a hearing. The trial court also appointed an attorney to represent Valldeparas in connection with the Third Motion.
At the motion hearing in February 2012, Valldeparas’s attorney never addressed the Third Motion or the issues raised therein. Instead, he addressed the September 20,2011 motion, conceding that even if the trial court were to have construed that motion as one to
1. We agree with Valldeparas that the trial court erred in interpreting the Third Motion as a motion to withdraw his guilty plea and in dismissing it as untimely. Valldeparas clearly expressed his understanding in his motion, and at the hearing, that the time had passed to file a motion to withdraw his plea and that he was not asserting such a motion.
Moreover, we agree with Valldeparas that the trial court should have looked past the form of the Third Motion to its substance to determine whether it could have been considered as a valid petition for habeas corpus. Valldeparas asserted in the Third Motion that his guilty plea was not fully understood, knowing or voluntary, but rather was entered under duress, stress and anxiety. The motion also asserted that he received ineffective assistance of counsel in the form of withheld facts, misrepresentations and undue time pressure at the time of entering his plea. The proper remedy for making a claim of ineffective assistance of counsel in connection with a guilty plea is “to move to withdraw the plea or, if the term of court in which the plea was entered has expired, to petition for a writ of habeas corpus.” (Citation omitted.) Beaver v. State,
Accordingly, we reverse the trial court’s order dismissing the Third Motion as untimely and remand the case for a consideration of the motion on its merits. Upon remand, the trial court must determine whether the Third Motion could be considered to be a valid habeas petition, given the requirements for initiating such a proceeding.
2. And although we note that Valldeparas’s motion counsel inexplicably failed to even mention the Third Motion at the motion hearing, we do not reach Valldeparas’s claim of ineffective assistance of counsel in this appeal given our holding above. In any event, the
Judgment reversed and case remanded with direction.
Notes
See Matthews v. State,
Apetition for coram nobis “is the ancestor of an extraordinary motion for new trial based on newly discovered evidence,” and the prerequisites for both “appear to be identical.” (Citations omitted.) Waye,
The Third Motion in this case cannot be treated as an extraordinary motion for new trial because “[o]ne who has entered a plea of guilty cannot move for a new trial, as there was no trial.” (Citation and punctuation omitted.) Davis v. State,
For example, a petition for habeas corpus must be filed in the superior court of the county in which the petitioner is being detained, OCGA § 9-14-43, and Valldeparas listed his address on the Third Motion as the Gwinnett County Detention Center. Thus, the trial court must determine whether Valldeparas was indeed detained in Gwinnett County when he filed the motion.