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Foster v. State9/9/2004
, and being declared a habitual violator. And, the state filed a recidivist notice based on Foster's prior convictions for robbery, burglary, aggravated assault, and a drug violation. Notwithstanding potentially conflicting evidence from other eyewitnesses, the evidence in the record would have been sufficient for a rational trier of fact to find Foster guilty beyond a reasonable doubt of reckless driving. [FN8]
In addition, the evidence in the record, including Foster's own testimony, shows that trial counsel did not advise Foster to plead guilty. That decision was made by Foster after consultation with his attorney regarding the strengths and weaknesses of his case. Foster's trial counsel testified at the hearing on the motion to withdraw Foster's plea that he represented Foster for two years on this case, and from the beginning expected to go to trial because there was no plea offer from the state. Foster made a last minute decision to enter a blind plea after the jury was impaneled because he knew that, based on his status as a recidivist, he could be facing a long maximum sentence if a jury found him guilty.
Foster further claims trial counsel was ineffective for advising him to remain silent at the guilty plea hearing although the trial judge based his sentence in part on the fact that Foster failed to explain his actions at the crime scene. Foster testified at the hearing on the motion to withdraw his plea that he swerved into the emergency lane and struck the officer because he had dropped his cell phone while on a call and was bending down to pick it up. Trial counsel advised Foster not to offer this explanation because he thought the explanation could have implicated Foster and might have made the case worse. According to trial counsel, this action would have just been one more circumstance, but not the deciding factor, in determining whether Foster's actions constituted reckless driving. Trial counsel's advice was not professionally unreasonable and does not provide a basis for an ineffective assistance of counsel claim. [FN9]
Moreover, regardless of the allegations raised in his motion to withdraw his plea, the transcript of Foster's plea hearing clearly shows that the plea was entered voluntarily and that Foster fully understood what he was doing at the time he pled guilty. [FN10] Prior to his plea, Foster's trial counsel and the state explained the effects of different maximum sentences and parole issues affecting the charge, explained the withdrawal of the recidivist notice, explained that Foster was "putting yourself on the mercy of the court with the window being 3 years to 15 years," and explained the rights he was waiving by pleading guilty. In addition, the state specifically asked Foster if he was satisfied with the services rendered by his trial counsel, and Foster responded affirmatively. Foster also testified that he was not threatened or forced to enter his plea, and that no one promised him a specific sentence. He acknowledged that he was entering the plea freely and voluntarily. Foster also stipulated to the factual basis for the plea. Based on the appellate record, the trial court did not err in denying Foster's motion to withdraw his guilty plea. [FN11]
*3 Judgment affirmed.
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