Summary
In King, supra, appellant did not attempt to withdraw his guilty plea until after sentencing was pronounced; in fact, the court in King, supra at 389, reaffirms that "[b]efore sentence is pronounced a plea of guilty may be withdrawn as a matter of right."
Summary of this case from Chives v. StateOpinion
35516.
DECIDED JANUARY 21, 1955.
Burglary. Before Judge Kennedy. Richmond Superior Court. October 4, 1954.
Harris, Chance McCracken, Otis W. Harrison, for plaintiff in error.
George Hains, Solicitor-General, Charles H. Britt, Assistant Solicitor-General, contra.
Where a motion to withdraw a plea of guilty in a criminal case is made after the sentence is entered in writing and handed to the clerk, the granting or refusal thereof is in the sound discretion of the trial judge and will not be set aside unless abused. Although the rule that it is vital that the rights of defendants should be zealously protected by the court, and that pleas of guilty, like confessions, should be scanned with great care, and, if necessary, rejected where it appears that the defendant has been led to make such plea in the belief that he will receive some reward or avert some injury thereby, is recognized — this rule is not available to a defendant who enters a plea of guilty under an agreement between the prosecuting attorney and the defense attorney that certain recommendations will be made by the prosecuting attorney as to punishment, such defendant through his counsel having express notice by the trial judge prior to the entry of such plea that no commitment would be made and no person had authority to make any commitment which would be binding upon him.
DECIDED JANUARY 21, 1955.
Robert King, on April 22, 1954, entered his plea of guilty in the Superior Court of Richmond County to an indictment charging him with burglary. The defendant was sentenced to a term of five to ten years. On May 8 he moved to be allowed to withdraw his plea of guilty, and allow the sentence to be set aside, on the ground that there was a genuine misunderstanding between him and the solicitor-general, and that he was laboring under a misapprehension as to the punishment he would receive, which petition was verified. Supporting affidavits of the two attorneys representing the defendant set out that, in a conference with the solicitor-general prior to the trial, they and the defendant were told by the solicitor that he could not promise a probated sentence, but he would see that the defendant would receive a jail sentence of not more than one year. The affidavit of the solicitor-general sets out that at this conference the solicitor-general did agree to recommend to the trial judge a certain sentence; that the man had to serve time, but he thought that from one to five years would be satisfactory to the judge. Charles Britt certifies that he represented the solicitor-general at the hearing and stated at that time that there was no understanding between the solicitor-general and counsel for the defendant concerning a parole; that the solicitor-general had agreed to recommend that upon a plea of guilty the defendant should receive a light sentence of probably one to five years. The trial judge, in certifying to the bill of exceptions, further certifies that, prior to the entry of the plea of guilty, he was approached by the attorneys for the defendant on the question of the sentence in the event of a plea of guilty, and he informed them that he made no advance commitments in any case, and that no person had the authority to make any commitments or promise for him.
The court denied the motion to withdraw the plea of guilty, and the exception is to this judgment.
Before sentence is pronounced a plea of guilty may be withdrawn as a matter of right. Code § 27-1404. After a sentence is pronounced, the right to withdraw it rests within the sound legal discretion of the trial judge. Clyburn v. State, 65 Ga. App. 747 ( 16 S.E.2d 442). This discretion must be exercised, not in opposition to, but in accordance with, established rules of law. "In no case of conflicting evidence will the judge's finding of facts be controlled by the reviewing court. But if, upon the facts as he found them, the law demands that a particular judgment be rendered, a contrary decision will always be reversed. We sometimes speak of such a decision as an abuse of discretion, but it is nothing more than an erroneous decision, or a judgment rendered in violation of law." Griffin v. State, 12 Ga. App. 615 (5), 621 ( 77 S.E. 1080). In that case it was held error not to permit the withdrawal of the plea of guilty, where all of the facts showed that the defendant and his attorneys were relying upon their agreement with the solicitor-general to obtain a sentence of misdemeanor punishment under the terms of a proposed settlement, and the judge, knowing of this agreement, failed to inform the defendant or his counsel that he did not intend to be bound thereby, but on the contrary proceeded to discuss the terms of the settlement with the parties at the hearing, at the same time signing a written sentence so that, when the defendant discovered its terms, it would be too late for him to withdraw his plea of guilty.
Here, on the contrary, it appears that, while the solicitor-general agreed to recommend a certain punishment, the judge informed the defendant, through counsel, that he would not be bound by any agreement, and would determine the sentence only after hearing the facts of the case. The defendant and his counsel accordingly knew that, while they had an agreement that the solicitor-general would recommend a certain punishment, they had no agreement under which they might expect such agreement to be followed, and they were accordingly not misled or deceived by any hope of benefit extended to them by the court or any of its officers. Where there is an honest mistake, or a plea of guilty (which is merely a confession in judicio) induced by the holding out of a promise of benefit or threat of injury, or by circumstances under which the defendant is misled to his injury, the court should allow the plea to be withdrawn although sentence has been entered. Davis v. State, 20 Ga. 674; Griffin v. State, supra; Woodward v. State, 13 Ga. App. 130 ( 78 S.E. 1009); Farley v. State, 23 Ga. App. 151 ( 97 S.E. 870). But where, even though the evidence is conflicting, there is evidence from which it appears that the defendant was not misled or induced to plead guilty, the refusal of the court to allow the the plea to be withdrawn after sentence is not an abuse of discretion. Smith v. State, 27 Ga. App. 270 ( 108 S.E. 121); Sanders v. State, 59 Ga. App. 748 ( 2 S.E.2d 144); Smith v. State, 64 Ga. App. 312 ( 13 S.E.2d 96); Hilliard v. State, 87 Ga. App. 769 ( 75 S.E.2d 173). As was pointed out in Griffin v. State, supra, however, it is vital that the rights of defendants should be zealously protected by the courts, and that pleas of guilty, like confessions, should be scanned with great care and, if necessary, rejected, where it appears that the defendant has been led to make such plea in the belief that he will receive some reward, or avert some injury, thereby. However, here — although counsel for the State and the defendant had an agreement by the terms of which counsel for the State would recommend certain punishment provided the defendant entered a plea of guilty — it is not shown that counsel for the State failed to carry out the agreement and make the recommendation in accordance therewith. On the other hand, it affirmatively appears that counsel for the defendant was notified prior to the entry of the plea by the trial judge himself that no advance commitment would be made as to what the sentence would be, and that no one had authority to make any commitment or promise so as to bind the court.
The trial court did not err in denying the motion to withdraw the plea.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.