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David v. State5/15/2003
Joseph Kelly David appeals from the trial court's order denying his motion to withdraw his guilty plea to the offense of first degree homicide by vehicle and denying his motion in arrest of judgment attacking the validity of the indictment. For the following reasons, we affirm.
1. David pleaded guilty to the offense of homicide by vehicle in the first degree as set forth in OCGA § 40-6-393 (a) based on an indictment alleging that he drove a vehicle under the influence of alcohol in violation of OCGA § 40-6-391, thereby causing the death of a passenger in the vehicle when he lost control and the vehicle overturned. He claims the trial court should have granted his motion to withdraw the guilty plea, filed after sentence was pronounced, because he did not knowingly and voluntarily enter the plea due to ineffective assistance from the attorney who represented him on the guilty plea.
The two-prong test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) to address claims that trial counsel was ineffective also applies to claims that a guilty plea attorney was ineffective. Hill v. Lockhart, 474 U. S. 52 (106 SC 366, 88 LE2d 203) (1985). Accordingly, David was required to show that his counsel's performance was deficient and that, but for the deficiency, there was a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U. S. at 59; Williams v. Duffy, 270 Ga. 580, 581 (513 SE2d 212) (1999). In addressing claims that counsel's performance was deficient, a court must determine whether counsel's advice was reasonable under the circumstances, and must apply the strong presumption that counsel's conduct fell within the wide range of reasonable professional conduct and that all of counsel's significant decisions were made in the exercise of reasonable professional judgment. Williams, 270 Ga. at 581; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). The trial court's determination that a defendant was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous. Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).
David pleaded guilty under an agreement with the prosecutor that he would not be sentenced to more than seven years to serve and, after a pre-sentence investigation, the trial court imposed a sentence of six years to serve. At the hearing on the motion to withdraw, David claimed his defense counsel failed to explain the plea agreement, promised him that he would not receive a sentence in excess of five years to serve, misled him into believing he could receive only probation, and misrepresented his eligibility for parole. David claimed that, if he had been told he could receive more than five years to serve, he would have insisted on going to trial. David also claimed he told defense counsel from the start that he did not want to plead guilty and wanted to go to trial on the charges. Defense counsel testified that, although he expressed hope that David would receive a sentence not exceeding five years to serve, he explained to David that he could receive a sentence of up to seven years to serve under the plea agreement, that he made no promises to David with respect to the sentence he would receive, and that he informed David of the applicable parole guidelines. He also testified that David consistently said he wanted to accept responsibility for the death of his passenger and plead guilty. The trial court, which acted as the finder of fact, accepted defense counsel's testimony and concluded that defense counsel made no guarantees regarding sentencing, and that David was aware he could receive a sentence of up to seven years to serve. Boyd v. State, 275
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