Opinion
36848.
DECIDED SEPTEMBER 13, 1957.
Motion to withdraw plea of guilty (arson). Before Judge Cobb. Clarke Superior Court. June 8, 1957.
Guy B. Scott, Jr., for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
Being induced by others by hope or fear is what renders an alleged plea of guilty or confession of no probative value. If it is ignited by a desire to plead guilty with the hope of a lighter punishment, or to escape injury, it is of no probative value. Conversely, if the plea or confession stems from a desire of the defendant, or from the seed of his own planting and not from anything said or done by a third person, such plea of guilty or confession would be of probative value and thus not be illegal.
DECIDED SEPTEMBER 13, 1957.
Dupree Fortson was indicted in the Superior Court of Clarke County. One indictment charged him with arson and the other indictment charged him with forgery. The defendant entered pleas of guilty to both indictments before Judge Carlisle Cobb, Judge of the Superior Court of Clarke County. At the time the plea of guilty on the arson indictment was entered, sentence was not pronounced. The judge requested J. T. Middlebrooks, State Probation Officer, to make a presentence report. After such report was submitted, on April 29, 1957, sentence was pronounced. On May 11, 1957, the defendant filed a motion to withdraw his plea of guilty in the arson case only, although the pleas of guilty on the arson indictment and on the forgery indictment were entered at the same time and under the same circumstances and conditions. The petition to withdraw the plea of guilty shows substantially: That the defendant at the time the petition was drawn was in the common jail of Clarke County after having been sentenced in the 2 cases. Paragraph 4 of the petition shows that on April 13, 1957, the defendant was brought from the jail to the office of Judge Cobb and was handed some papers to sign by the solicitor-general. Paragraph 5 alleges that the defendant can neither read nor write but can only sign his name. Paragraph 6 reads as follows: "Dupree Fortson shows that at the time he signed the purported pleas of guilty in the office of Judge Carlisle Cobb on April 13, 1957, he thought that he was signing a plea only to the offense of forgery and not to the offense of arson." Subsequent paragraphs read: "7. Dupree Fortson shows that the indictments were not read to him or explained to him. 8. Dupree Fortson shows that he was not represented by counsel either directly or indirectly, the same being in violation of Code § 2-105 of the Georgia Code Annotated, and he further shows that he was denied the privilege and benefit of counsel as he was incarcerated in the Clarke County jail and could not see a lawyer or did he have the necessary funds at that time to employ a lawyer. 9. Dupree Fortson shows that he did not request that counsel be appointed for him to represent him on the arson charge as he did not know he had been indicted on that charge and he did not know that he was signing a plea of guilty to an indictment charging him with the offense of arson. Therefore, he shows that he had no responsibility to request counsel at that time. 10. Dupree Fortson shows that after signing the pleas he was taken back to the common jail in Clarke County, Georgia, and did not know what was happening and that on April 29, 1957, he was brought into the court room of Clarke County, Georgia and asked if he had anything to say. He stated to Judge Carlisle Cobb that he was the principal in the case where the check was forged and that his codefendant had been talked into the offense of forgery by Dupree Fortson, and that he was entirely guilty of the offense of forgery. At that time Judge Carlisle Cobb passed sentence in the forgery case and then passed a sentence of a minimum of 10 and a maximum of 15 years in the arson case. 11. Dupree Fortson after having been informed that a purported plea of guilty had been signed by him and he had been sentenced thereon now desires to withdraw said plea of guilty in case No. 5870 in the Superior Court of Clarke County, Georgia, the same being the case of the State of Georgia versus Dupree Fortson charged with the offense of arson. 12. Dupree Fortson shows that he has moved promptly to withdraw the plea of guilty to the offense of arson after having been informed of his legal position by his attorney, Guy B. Scott, Jr., who was employed by him on May 8, 1957."
The defendant prayed as follows: "1. That Dupree Fortson be allowed to withdraw the plea of guilty to the offense of arson and that said sentence in the case No. 5870 of the Clarke Superior Court be vacated. 2. That the Solicitor-General of the Western Circuit, D. Marshall Pollock, be served with a copy of this petition and requested to show why on a certain day said sentence should not be vacated and Dupree Fortson allowed to withdraw said plea of guilty."
The solicitor-general responded by alleging that the indictments were fully explained to the defendant but were not read to him at that time and place. The solicitor-general further responded in paragraph 12 as follows: "To answer more fully: The Grand Jury of Clarke County returned two indictments against Dupree Fortson at the April term, 1957, and previous to this time, the said Dupree Fortson had been incarcerated in the jail of Clarke County for approximately 14 days on warrants charging him with said offenses. That after the return of the indictments, he indicated to H. T. Huff, Sheriff of Clarke County that he desired to enter a plea on both of the indictments before the week set for the trial of said cases. He was carried to the office of Honorable Carlisle Cobb, Judge of Clarke Superior Court on April 13, 1957, for the purpose of entering his pleas as he requested.
"When his case was called, the solicitor-general informed the court of the nature of the charges against him and the court stated that since such charges were of such a serious nature, he desired counsel to talk with the defendant and inform him of the nature of the charges and the penalties and of his legal rights. An attorney was called, who carried the said Fortson into an inner office and when he returned, the said Dupree Fortson signed his plea. He understood exactly what he was doing and was not induced in any manner to plead guilty or made any promises in regard thereto and his right to counsel was not denied him by the court nor the solicitor-general nor anyone else. The court, before sentencing him, stated that he desired a presentence report from the probation officer, and the said probation officer, J. T. Middlebrooks, carried the defendant into his office and discussed both cases thoroughly with him and the said Dupree Fortson understood the nature of the charges against him and the effect of his entering a plea because such matters were fully discussed with the probation officer.
"He was then carried back to jail and remained there until the 29th day of April, 1957 when he was sentenced in open court by Judge Cobb. At the time he was sentenced, he rose in open court and stated the circumstances under which he had committed the crime of arson, then stating that he and a man named Dove had decided to burn the building in question for the purpose of collecting insurance on the building and that he had received a part of the money for burning said building.
"At such time and place he understood exactly what he was doing and he was not induced in any way to admit his part in either the forgery or the arson case. That the court before sentencing him referred to his extremely long record of law violations and stated that such record must be one of the bases for his sentence.
"This answer is made to be used as a part of the record of the hearing in this matter."
The record discloses by testimony of Mr. Chappelle Matthews, attorney at law, Mr. W. T. Ray, prosecutor in the arson case who was present at the time, Mr. George Farmer, member of the County Police of Clarke County, Mr. King Crawford, Deputy Clerk of Clarke County, Miss Hugolend Harbermann, secretary for State Probation Officer, Mr. J. T. Middlebrooks, State Probation Officer, and D. M. Pollock, solicitor-general, that Dupree Fortson was arrested sometime in March and placed in jail on warrants charging him with the offense of forgery and arson and the grand jury of Clarke County indicted him at the April term for these offenses; that he told the officers in conversation with them while he was in jail that he wished to enter his plea before the judge in these two cases and was brought to the office of the court for that purpose on April 13th; that it was stated to the court in the presence of the defendant that there were two indictments against him and that they were for forgery and arson, and the court then stated that they were serious offenses and that it would be necessary that he be represented by counsel in order that he might know the nature of the charges against him and the effect of the charges; that the indictments were then delivered to some person assumed to be one of the attorneys, but whose identity does not show in the record, and that the defendant went with him into the back room and that after that, the defendant signed his name on the indictments. The evidence shows that there were a large number of attorneys and witnesses and people interested in the proceedings in the office at that time. The record shows that the defendant substantiates the interest of the court in his being represented by counsel when he quotes the court as asking him if he had a lawyer, and the testimony of Chappelle Matthews shows the effort on the part of the court to arrange for his representation by an attorney. At no time did the defendant request an attorney, nor was he denied the services of an attorney.
The evidence shows that no sentence was then passed on the defendant under the indictment for arson, but the court requested a presentence report and the defendant went immediately from the judge's office next door to the office of the State Probation Officer, Mr. J. T. Middlebrooks.
The testimony of Mr. Middlebrooks and testimony of the defendant showed that the defendant told the probation officer all about the arson case and did not deny anything and even admitted getting part of the money for setting the fire and that at no time was anything said about a lawyer.
After the defendant had completed making his statement to the probation officer, he was carried back to jail, and he told Mr. George Farmer, county policeman (in whose custody he was at the time), that he had come down and entered a plea on 2 charges, one for writing a check and one for arson, and that he did not know how much time he was going to get, but he felt like he was due some time, and that he was going to lead a good clean life after that. Mr. Farmer further testified that the defendant had told him before he was sentenced that he wanted to enter a plea on both cases and that at no time had he ever said anything about wanting an attorney or had been denied an attorney.
The record further shows that at no time was he denied the right of counsel or that he asked that a lawyer be appointed for him, or that he was induced to sign his plea of guilty; that the plea was signed voluntarily by the defendant; that he remained in jail, after the entering of the plea on April 13, until April 29, 1957, when he came down in open court and was sentenced; that he remained in open court approximately one half an hour while sentence was being pronounced on other defendants and when his case was called, he stood up and stated exactly how the crime was committed and the part that he played in it; that there was no indication in his demeanor, the way he talked and acted, that he did not know what he was doing or did not know the nature of the things that he said or the effect of what he was doing.
Included in the report of the probation officer is the record of criminal offenses as follows:
"Date Offense Name of Court Place Disposition
1936 Larceny of City Court Danielsville, Ga. 12 months public cotton seed works camp. 1934 Tried for Madison Superior Danielsville, Ga. Acquitted murder Court 1939 Making Federal Court Athens, Georgia Served 6 months whisky in jail. 1940 Larceny City Court Danielsville, Ga. 9 months public works camp. 1943 Drunk Recorder's Court Charlotte, N.C. $8 fine. 1944 Driving U. L. Recorder's Court Charlotte, N.C. $50 fine. 1946 Tried for Superior Court Charlotte, N.C. Acquitted. molesting 12 year old girl 1947 Defendant killed Arthur Litty; but was acquitted as it was considered self-defense. 1949 Arrested for Case never did Charlotte, N.C. Case was nol. stabbing wife come to trial pros'd. 1950 Driving U. I. Superior Court Winston-Salem, Served 6 months N.C. in jail 1952 Stealing Superior Court Greenwood, S.C. Served 8 months automobile in penitentiary 1955 Making Madison County Danielsville, Ga. $350 fine, 12 whisky Superior Court months probation." It is to the judgment of the court denying the motion to withdraw the plea of guilty under the arson indictment that the case is here for review.The contentions of the defendant are that the court committed reversible error in that the defendant was deprived of the benefit of the provisions of the Constitution of Georgia codified as Code (Ann.) § 2-105, which reads, "Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the testimony of his own witnesses; shall be confronted with the witnesses testifying against him; and shall have a public and speedy trial by an impartial jury." It seems that counsel for the defendant overlooked or ignored the fact that the provisions of this Code section may be waived by a defendant. Counsel for the defendant calls our attention to and quotes from Griffin v. State, 12 Ga. App. 615 ( 77 S.E. 1080). That case was written by Judge Pottle. The substance of that learned decision is to the effect that if someone connected with the court should mislead a defendant as to what a defendant may expect if a plea of guilty is entered, and such defendant so enters a plea of guilty, under such circumstances the defendant should, in the legal discretion of the court, be permitted to withdraw his plea of guilty after sentence is passed. Before sentence is passed a defendant may withdraw a plea of guilty as a matter of right. Out attention is called also to Welch v. State, 63 Ga. App. 277, 279 ( 11 S.E.2d 42). A casual reading of that case will reveal that it throws no light on the issue now before us. Counsel for the defendant calls our attention to Davis v. State, 20 Ga. 674. The facts of that case have no similarity whatsoever to the facts of the instant case.
Here it is appropriate to state that while we have quoted from the record the report of the probation officer as to the defendant's criminal history, we realize that the arson charge to which the defendant pleaded guilty could not be governed by the defendant's criminal record. We have submitted this record only to show that the defendant has had a criminal record since 1934 and having been in court so many times (acquitted in some cases and convicted in some), the defendant was not a stranger to court procedure in criminal cases and the court could have and perhaps did take this into consideration in determining the credibility of the defendant's contentions and in refusing to allow the plea of guilty to be withdrawn after sentence was pronounced. It is stated in Griffin v. State, 12 Ga. App. 615, 621, supra, as follows: "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." The application of the above principle of law must be based on the particular facts of each case. In the instant case, under the facts and the record, the judge exercised his discretion in refusing to allow the defendant to withdraw the plea of guilty, after seeing the defendant, determining his knowledge and understanding of what he was doing at the time he entered the plea of guilty, hearing what was said at the time of the passing of the sentence and also taking into consideration the defendant's attitude and the conduct of the officials of the court. In the cases decided by both of the appellate courts of this State, certain conditions surrounding pleas of guilty have received particular consideration. One of these is whether or not the defendant believes he will receive some reward or avert some injury if such plea is entered. In the instant case there is nothing whatsoever to show that the defendant was promised anything or that he would avert injury to himself by entering the plea. There is no evidence that the defendant was misled or induced to plead guilty. This court held in King v. State, 91 Ga. App. 388, 390 ( 85 S.E.2d 637) as follows: "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 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)." When a judge, in the exercise of his discretion, refuses to allow a defendant to withdraw a plea of guilty the judge thus settles all conflicts in the evidence and is the exclusive arbiter of the facts. Such exercise of a sound legal discretion presupposes an application of settled rules of law to the facts found by the judge. In Clark v. State, 72 Ga. App. 603 (1) ( 34 S.E.2d 608) this court said: "Before sentence is pronounced, the defendant may withdraw his plea of guilty as a matter of right. After sentence is pronounced, it rests within the sound discretion of the court as to whether the defendant will be allowed to withdraw his plea of guilty and enter a plea of not guilty." In Rowland v. State, 72 Ga. App. 793, 799 ( 35 S.E.2d 372) this court said: "It is true, as contended by the State, that a plea of guilty stands upon the same footing as a conviction of guilty by a jury. . . It is well settled that a motion to withdraw a plea of guilty after sentence is pronounced is within the sound legal discretion of the court, and its judgment should never be reversed unless abused as a matter of law." See also Cummings v. Perry, 194 Ga. 424 ( 21 S.E.2d 847), and Smith v. State, 64 Ga. App. 312, supra. In Gatlin v. State, 17 Ga. App. 406 (1) ( 87 S.E. 151) this court said: "It is a constitutional right of a defendant in a criminal case to have the benefit of counsel (Civil Code, § 6361); but he can waive this right. If the record shows that the accused did not have counsel, it is not cause for a new trial, unless it further appears that the right to have counsel was denied him." On page 408 of the same opinion this appears: "A constitutional right, like any other right, may be waived; and while the constitutional right to have the benefit of counsel is a valuable and sacred one, and one that should never be denied or abridged, it is not a compulsory right." See also Clarke v. Cobb, 195 Ga. 633 ( 24 S.E.2d 782) wherein the Supreme Court quoted from Judge Broyle's opinion in Gatlin v. State, supra, and held that the defendant was not denied his constitutional rights by not having benefit of counsel. It is our opinion that the defendant in the instant case was not ignorant of his rights and was given an opportunity to secure counsel but did not do so.
The trial judge did not abuse his legal discretion in refusing to allow the defendant to withdraw his plea of guilty.
Judgment affirmed. Townsend and Carlisle, JJ., concur.