NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0253. PUGH v. THE STATE.
MCMILLIAN, Justice.
Appellant Philip Pugh entered a plea of guilty but mentally ill
to malice murder in connection with the shooting death of Vincent
Newsome. 1 On appeal, Pugh claims that the trial court erred in
denying his motion to withdraw his guilty but mentally ill plea for
three reasons. Pugh first argues that the trial court should have sua
sponte conducted a competency hearing at the time of his guilty plea
and that the failure to do so violated his procedural due process
rights. Pugh next argues that his substantive due process rights
1Newsome was killed on March 1, 2014, and on June 11, 2014, a
Gwinnett County grand jury indicted Pugh for malice murder, felony murder
based on aggravated assault, aggravated assault of Newsome, aggravated
assault of Steve Carcana (a bystander who was struck by a bullet fragment),
and two counts of possession of a firearm or knife during the commission of a
felony.
were violated by the trial court’s acceptance of the plea because
Pugh was not competent to enter the plea and did not enter the plea
voluntarily. Lastly, Pugh argues that he received constitutionally
ineffective assistance of counsel in that plea counsel failed to request
a competency hearing. As explained below, we need not resolve
Pugh’s claims regarding his competency at the time of his guilty plea
hearing, because, given Pugh’s repeated assertions at the time of the
plea that he was being threatened and forced into entering the plea,
the State has failed to meet its burden to show that his plea was
knowing and voluntary. We therefore must reverse Pugh’s
conviction and remand the case for further proceedings.
1. In presenting its factual basis for the guilty plea, the
State proffered the following. On February 26, 2014, the Gwinnett
County Police Department received a report that Loraine Rowzie –
Pugh’s wife – had been the victim of a gang rape at a hotel five or
six months prior. It was not reported until her husband, Pugh, said
he saw a cell phone video of the gang rape. Pugh called the police
later that same day to identify one of the men in the video as “Vince.”
2
On March 1, 2014, Pugh drove from his home in Mississippi to
the hotel in Gwinnett County and asked for a man named Tyson
Henderson, the previous manager of the hotel, but Henderson was
not there. Pugh subsequently encountered and shot Newsome
several times, killing him, before driving back to Mississippi where
he was later arrested.
The record shows that, following the indictment, initial trial
counsel raised a concern about Pugh’s mental state and history and
requested a mental evaluation. Dr. Tomina Schwenke evaluated
Pugh’s criminal responsibility and competency to stand trial and on
August 24, 2014, submitted her evaluations to the trial court. Dr.
Schwenke opined that “Pugh was able to distinguish those behaviors
that would be deemed wrong from those that are right at the time of
the alleged offenses. Additionally, there is no evidence to suggest
that [Pugh] was suffering from a delusional compulsion at the time
of the offenses alleged.” Dr. Schwenke also found that “at the time
of the evaluation, [] Pugh was competent to stand trial.”
3
Then, in July 2016, Pugh’s plea counsel 2 moved for another
mental health examination because he did not agree with Dr.
Schwenke’s evaluation that Pugh was competent to stand trial, and
the trial court ordered that another evaluation be performed. The
evaluator tried once to go to the jail, but Pugh refused to cooperate
and fired his counsel over the phone. Then, Pugh said he wanted his
counsel back and that he would submit to an evaluation. So his
counsel and the evaluator went to the jail, but Pugh again refused
to cooperate and was unable to be evaluated.
On April 17, 2017, the case was set to go to trial, but after
additional negotiation with the State and conversations with plea
counsel on the morning of the scheduled trial, Pugh pleaded guilty
but mentally ill. During the plea colloquy, Pugh responded “yes”
when asked if anyone had used any “force, threats, or promises”
causing him to plead guilty against his will. The trial court asked if
Pugh had experienced force, threats, or promises, and Pugh
2After initial counsel, Pugh had a series of four or five different attorneys
leading up to the plea.
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responded that “[i]t was threats.” When the trial court asked who
made the threats, Pugh responded, “Gwinnett County Police.” The
trial court asked if police officers were making Pugh plead guilty
that day, and Pugh said that they “withheld evidence in my case and
then they threatened – they actually threatened to kill my family if
I didn’t – if I – if I don’t keep quiet.” The trial court then asked if
Pugh wanted to go forward with the plea. Pugh responded, “I have
no choice.” Both Pugh’s plea counsel and the trial court told Pugh
that he did have the choice of whether to go to trial. When asked if
Pugh committed the offense of murder of Newsome, Pugh responded
that he defended himself after Newsome tried to throw him over a
balcony. When asked if his decision to plead guilty was being made
freely and voluntarily, Pugh responded, “[U]nder the circumstances,
yes.” The district attorney then explained that “[y]our choices today
are plead guilty or have a trial. Which one do you want today?” Pugh
said, “I have no choice but to plead guilty, sir. Everything – all my
evidence and everything is missing. I have no choice but to plead.”
The trial court subsequently followed up on the State’s
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questions about feeling threatened and asked, “Do you feel
threatened or are you just feeling the pressure?” Pugh responded, “I
feel threatened. They have threatened me about this and they gave
[an] address to my sister – to my sister’s – threatened to go shoot up
the house and everything, so I – ” When the trial court asked whom
Pugh was referring to, Pugh responded, “Some of the Gwinnett
County police deputies.” Then, the trial court asked whether anyone
threatened Pugh “this morning” to enter this plea, and he responded
no. The trial court asked no further questions about Pugh’s
statements that he had been threatened to enter the plea. Pugh
further said that he understood the purpose and significance of the
proceedings, his rights, and that he was waiving his right to have a
trial.
During the plea colloquy, the State represented that there was
no evidence of threats by Gwinnett County police officers and that
despite Pugh’s consistent belief that his wife was raped by multiple
men, the State’s investigation found no evidence that a rape
occurred. But, related to competency, the State explained at the
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guilty plea hearing:
Respectfully, I would suggest it’s an open question of
whether or not the rape even occurred, but if it did, it
happened at least six months prior to the actual murder.
So if we were to have a trial, we believe the evidence
would show this defendant was under some sort of
delusion about the rape.
And I’ll tell you, Judge, I listened to that audio of his
accounting of what happened 50 times and it is so very
compelling. I firmly believe this defendant, in his heart,
knows that his wife was raped and it was that knowledge
that drove him to revenge and drove him to murder
Vincent Newsome.
At the end of the guilty plea hearing, the trial court accepted
the plea of guilty but mentally ill and sentenced Pugh to serve life
in prison with the possibility of parole. In doing so, the trial court
noted:
The Court finds that Mr. Pugh is entering his plea today
with an understanding of what’s happening in the
courtroom. He’s had an opportunity to speak to his
attorney at length this morning and at other times while
he’s been in the courthouse. Therefore, the Court finds
that Mr. Pugh is entering his plea today freely,
voluntarily, and intelligently. That will be the sentence of
the court.
Shortly after pleading guilty but mentally ill, Pugh wrote a
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letter to the trial court trying to withdraw the plea. The trial court
appointed appellate counsel, and on May 12, 2017, appellate counsel
moved to withdraw the plea. On March 28, 2018, the trial court held
a hearing on the motion to withdraw the plea, during which Pugh
said he was scared of his plea counsel because his counsel knew the
man who raped his wife. Pugh also said that he had a “fear of death”
because “people at the Gwinnett Sheriff’s Department threatened
his family.” During this hearing, appellate counsel became
concerned about Pugh’s behavior and requested time to file written
argument. The trial court granted the motion, and on April 17, 2019,
appellate counsel submitted an amended motion to withdraw plea.
Another hearing was held on May 15, 2019, in which appellate
counsel requested a post-conviction competency evaluation, which
the trial court ordered.
Dr. Amy Gambow conducted an evaluation in December 2019.
The evaluation found that Pugh “appeared guarded and disclosed
delusional and paranoid thought content . . . consistent with reports
he made to Gwinnett County Detention Center staff, Defense
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Counsel, and during Court transcripts.” She further found that
Pugh “did not appear to appreciate his current condition and
appeared unable to work with an attorney at this time,” “discussed
delusional thought content related to his case,” and was unlikely to
be able to assist in his defense. As such, it was her opinion that Pugh
was not competent at that time to stand trial and that he was not
competent at the time he entered his plea “based on Court
transcripts of [] Pugh expressing delusional beliefs related to his
case, which likely significantly impaired his appreciation of his
condition at the time he entered his plea. His delusional and
paranoid thought content at the time likely impacted his abilities to
make rational decisions and formulate his defense appropriately.”
After Dr. Gambow conducted her evaluation, a final hearing on
the motion to withdraw guilty plea was held on April 25, 2022, in
which both plea counsel and Dr. Gambow testified. On September
21, 2022, the trial court 3 denied Pugh’s motion. After considering the
entire record, the plea hearing transcript, and applicable law, the
3 In 2019, Pugh’s case was reassigned to a new judge.
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trial court found that there was sufficient evidence to show that
Pugh was competent and voluntarily entered his plea. As such, the
trial court found that Pugh’s procedural due process rights were not
violated by the trial court’s failure to order an additional competency
hearing sua sponte at the time of the entry of the guilty plea. The
trial court also determined that, because Pugh was competent at the
time of the plea hearing, his substantive due process rights were not
violated. Finally, on Pugh’s ineffective assistance of counsel claim,
the trial court found no prejudice because Pugh failed to show that,
had his plea counsel requested another competency hearing, it
would have produced a different result.
2. Pugh argues that the trial court erred in denying his
motion to withdraw his guilty plea because he was not competent at
the time he entered his plea and he did not enter the plea
voluntarily.
The standard for reviewing a denial of a motion to withdraw a
guilty plea is well established. “After sentencing, a defendant may
withdraw his guilty plea only to correct a manifest injustice.” Hood
10
v. State, 315 Ga. 809, 812 (1) (884 SE2d 901) (2023).
The test for manifest injustice will by necessity vary from
case to case, but it has been said that withdrawal is
necessary to correct a manifest injustice if, for instance, a
defendant is denied effective assistance of counsel, or the
guilty plea was entered involuntarily or without an
understanding of the nature of the charges.
Id. (citation omitted). Among other things, before a defendant can
plead guilty, he must be found competent to stand trial and “a trial
court must satisfy itself that the waiver of his constitutional rights
is knowing and voluntary.” Godinez v. Moran, 509 U.S. 389, 400 (II)
(B) (113 SCt 2680, 125 LE2d 321) (1993). The State bears the burden
on a motion to withdraw a guilty plea to establish that the plea was
entered knowingly and voluntarily and “may meet this burden by
showing on the record of the guilty plea hearing that the defendant
was cognizant of all the rights he was waiving and the possible
consequences of his plea, or by use of extrinsic evidence that
affirmatively shows the guilty plea was knowing and voluntary.”
DeToma v. State, 296 Ga. 90, 91 (1) (765 SE2d 596) (2014) (citations
and punctuation omitted).
11
Pretermitting whether Pugh was competent when he entered
the guilty plea, the State has failed to meet its burden in proving
that the guilty plea was entered knowingly and voluntarily. Pugh
stated affirmatively on the record multiple times that the police
“actually threatened to kill my family if I didn’t – if I – if I don’t keep
quiet” and that the police “threatened me about this and they gave
[an] address to my sister – to my sister’s – threatened to go shoot up
the house and everything.” Although the trial court and the State
asked Pugh to clarify several times whether Pugh felt that he was
threatened or was merely feeling pressure to enter the guilty plea,
Pugh never recanted his assertions that he was entering the plea
because he had been threatened.4
Because the record at the plea hearing does not affirmatively
disclose that Pugh entered his plea knowingly and voluntarily, we
4We recognize the unusual circumstances of this case in which Pugh’s
claims of being threatened appear to have been unfounded, and Dr. Gambow
opined that those claims were delusions. However, it is the State’s burden to
show that Pugh knowingly and voluntarily entered the guilty plea despite
Pugh’s asserted belief that he had been threatened, which the State has failed
to do.
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reverse the denial of the motion for withdrawal of the guilty plea
and remand for further proceedings. 5 See Brady v. United States,
397 U.S. 742 (90 SCt 1463, 25 LE2d 747) (1970) (“The requirement
that a plea of guilty must be intelligent and voluntary to be valid
has long been recognized. The new element added in Boykin was the
requirement that the record must affirmatively disclose that a
defendant who pleaded guilty entered his plea understandingly and
voluntarily.”); Boykin v. Ala., 395 U.S. 238, 242-43 (89 SCt 1709, 23
LE2d 274) (1969) (reversing the Supreme Court of Alabama because
the record did not “disclose that the defendant voluntarily and
understandingly entered his pleas of guilty” and explaining that
“coercion, terror, inducements, [or] subtle or blatant threats might
be the perfect cover-up of unconstitutionality.”); Winfrey v. State,
304 Ga. 94, 96 (I) (816 SE2d 613) (2018) (holding that trial court’s
participation in the plea was so significant and implicitly
5 Because we reverse the denial of Pugh’s motion to withdraw his guilty
plea, we need not consider Pugh’s other claims with respect to this plea. See
Moon v. State, 312 Ga. 31, 50 (3) (860 SE2d 519) (2021) (declining to address
enumerations of error that are not likely to recur on remand).
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threatening to the defendant that it rendered his plea involuntary);
Uniform Superior Court Rule 33.7 (“The judge shall not accept a plea
of guilty or nolo contendere without first determining, on the record,
that the plea is voluntary.”).
Judgment reversed and case remanded. All the Justices concur.
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