Summary
holding that defendant was adequately advised of the right to confront accusers when trial court asked whether defendant understood that he had “a right to face any witnesses against you and to be here whenever any witness testifies against you and to have your attorney ask any questions”
Summary of this case from Dillard v. StateOpinion
28326.
SUBMITTED OCTOBER 10, 1973.
DECIDED OCTOBER 25, 1973.
Armed robbery. Fulton Superior Court. Before Judge Williams.
Y. C. Thomas, pro se. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Morris H. Rosenberg, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, David L. G. King, Jr., Assistant Attorneys General, for appellee.
The trial court did not abuse its discretion in refusing to allow the appellant to withdraw his "guilty" plea after sentence had been pronounced.
SUBMITTED OCTOBER 10, 1973 — DECIDED OCTOBER 25, 1973.
Y. C. Thomas, appellant in this case was indicted by a Fulton County Grand Jury for armed robbery, aggravated assault, and the possession and concealment of a pistol. On October 2, 1972, appellant pled guilty to all charges brought against him and the trial judge pronounced sentence on the same day. On May 7, 1973, more than seven months after sentence was entered appellant filed a pro se motion captioned "Motion To Vacate Guilty Plea." On May 24, 1973, the trial judge considered said pleading along with the original transcript at the hearing on entry of the guilty pleas and found that said pleas were freely, understandingly, and voluntarily made without undue influence or promise of leniency, and that when they were entered the defendant had a full understanding of his constitutional rights, and that they were entered with the assistance of and in the presence of his counsel. In the light of these findings the trial judge denied appellant's motion. A motion for rehearing was filed in the Fulton Superior Court claiming that the denial of the motion was contrary to the law and evidence. The trial judge denied appellant's second motion, and appellant appeals from these rulings.
1. We affirm. Appellant claims in his enumeration of error that (1) the trial court abused its discretion in overruling appellant's motion to withdraw his plea and (2) the appellant's plea of guilty was not constitutionally valid in that it did not conform with the requirements laid down in Boykin v. Alabama, 395 U.S. 238 ( 89 S.C. 1709, 23 L.Ed.2d 274). We cannot agree with either of these contentions. The enumerations of error are grounded on appellant's contention that he was not informed of his right to face his accusers and that he was not afforded his right of allocution. The first of these contentions is soundly refuted in the record of the hearing of which appellant complains. The following colloquy took place at said hearing: "Q. Do each of you understand that you have a right to face any witness against you and to be here whenever any witness testifies against you and to have your attorney ask any questions? Y. C. Thomas: Yes." Appellant claims that the trial judge denied him his right to allocution in that he did not ask the defendant directly if he had anything to say, thereby denying appellant his right to withdraw his pleas of guilty. However, it appears in the record that the trial judge inquired of appellant's attorney if he had anything to say, said inquiry being made in the presence of appellant.
Code § 27-1404 provides that an accused has the right to withdraw a plea of guilty at any time prior to the pronouncement of sentence by the trial judge. The appellant at no time prior to the pronouncement of sentence requested the withdrawal of his guilty plea although the record indicates there was ample opportunity to do so.
After the pronouncement of sentence a ruling on a motion to withdraw a guilty plea is within the sound discretion of the trial court, said discretion not to be disturbed on the appellate level unless manifestly abused. Smith v. State, 231 Ga. 23; Marshall v. State, 128 Ga. App. 413 ( 197 S.E.2d 161); McCrary v. State, 215 Ga. 887 (2) ( 114 S.E.2d 133); Farmer v. State, 128 Ga. App. 416 ( 196 S.E.2d 893); Ware v. State, 128 Ga. App. 407 ( 196 S.E.2d 896). It appears from the record that appellant here was informed of every right available to him under the Constitution, and that every effort was made to insure that appellant fully understood these rights. There was no abuse of discretion in denying appellant's motion to withdraw his guilty plea or his motion for a rehearing. The evidence amply supports a finding that appellant entered his plea of guilty knowingly, understandingly, and voluntarily.
Judgment affirmed. All the Justices concur.