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: March 7, 2023
S23A0326. HOOD v. THE STATE.
LAGRUA, Justice.
Appellant Larry Hood challenges the superior court’s order
denying his motion to withdraw his guilty plea to malice murder and
other crimes in connection with the death of Angela Ritter Davis.
Hood claims that his plea was not knowing, intelligent, and
voluntary because his plea counsel made an affirmative
misrepresentation about the collateral consequences of his plea, i.e.,
his parole eligibility. For the reasons set forth below, we affirm the
superior court’s denial of Hood’s motion. However, because the
superior court committed sentencing errors, we vacate two of Hood’s
convictions and remand for resentencing.
The record shows that, on November 2, 2020, a Decatur County
grand jury indicted Hood for malice murder, felony murder,
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aggravated assault, kidnapping, false imprisonment, making a false
statement, possession of a controlled substance in Schedule I, and
false report of a crime. Among other things, the indictment charged
Hood with malice murder for “caus[ing] the death of . . . Davis . . . by
striking her in the head with a pipe,” and it charged Hood with
aggravated assault for “mak[ing] an assault upon . . . Davis with
intent to murder by striking [her] in the head with a pipe.”
On February 1, 2022, the superior court held a plea hearing
during which Hood entered a negotiated guilty plea to Count 1
(malice murder), Count 3 (aggravated assault), Count 6 (making a
false statement), and Count 7 (possession of a controlled substance
in Schedule I). In exchange, the State agreed to nolle pros the
remaining charges and recommend a total sentence of life with the
possibility of parole, plus 20 years.
At the plea hearing, the State represented that the factual
basis for the plea was that Hood beat Davis, his ex-girlfriend, to
death with a pipe because she was dating someone else. Davis’s body
was discovered in a wooded area with blunt impact injuries to the
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head, including facial and oral contusions, multiple lacerations of
the scalp, and a prominent circular skull fracture with radiating
linear fractures. The blood of Davis and Hood was discovered on a
pipe that was located near Davis’s body. Hood stipulated to the
factual basis provided by the State, but he provided some additional
details, e.g., that Davis hit Hood with the pipe and injured him, and
the State acknowledged this occurred.
Before the plea hearing, Hood and his plea counsel completed
and signed a 2-page form containing 32 questions about Hood’s
constitutional and other legal rights. By signing this form, Hood
acknowledged that he understood that the minimum sentence for
malice murder was “life” and the maximum sentence was “life
w[ith]o[ut] parole.” Hood and his plea counsel also signed a two-page
form entitled “Plea and Sentence Recommendation,” which stated
the State was recommending the following sentence: (a) life with the
possibility of parole on malice murder (Count 1); (b) 20 years to serve
on aggravated assault (Count 3) to be served consecutive to Count
1; (c) 5 years to serve on making a false statement (Count 6) to be
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served consecutive to Count 1 and concurrent with Count 3; and (d)
3 years to serve on possession of a controlled substance in Schedule
I (Count 7) to be served consecutive to Count 1 and concurrent with
Count 3.
During his colloquy with the superior court, Hood confirmed
that he had signed the “32-question plea transcript form” and that
he understood his constitutional rights and had no questions about
them. Hood also confirmed that his plea counsel had discussed
parole eligibility with him, and he had no questions about it. After
finding that there was a factual basis to believe the crime was
committed as alleged and that Hood made a knowing, intelligent,
and voluntary waiver of his constitutional rights, the superior court
accepted Hood’s guilty plea. The superior court then orally
sentenced Hood consistent with the recommendation on the “Plea
and Sentence Recommendation” form.
Two months later (and in the same term of court), Hood’s plea
counsel filed a timely motion to withdraw guilty plea. Hood was
appointed new counsel, and on September 6, 2022, the superior court
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held an evidentiary hearing on the motion. At the hearing, Hood
testified:
[My plea counsel] told me that a life sentence was 14
years. And if I went through about seven years, I’d parole
out with good behavior. I signed a plea under the
impression that a life sentence was 14 years. I got to
Jackson State Prison and they tell me a life sentence was
30 [years].[1]
Hood also stated that his plea counsel’s assistant and investigator
told him “that a life sentence was 14 years” and that “everything
was self-defense and that [Hood] wouldn’t do but seven [years] and
[he would] go home.”
Hood’s plea counsel testified that she told Hood that he was not
eligible for parole until after he had served 30 years in prison. She
further testified:
I remember having this discussion with Mr. Hood on
numerous times because he kept saying he was 49 and he
was going to be 79 when he got out and his parents would
1OCGA § 17-10-6.1 (c) (1) provides:
Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the
accused has been sentenced to life imprisonment, that person shall
not be eligible for any form of parole or early release administered
by the State Board of Pardons and Paroles until that person has
served a minimum of 30 years in prison.
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be deceased. And this was a very big deal to him
considering the 30-year mark and that’s why I know that
I went over the 30 years with him.
Hood argued that his guilty plea should be withdrawn because he
did not understand that a life sentence meant he was not eligible for
parole until after he had served 30 years and there was “no written
form . . . that specifically says that he was told that life will be 30
years.”
At the conclusion of the hearing, the superior court orally
denied Hood’s motion to withdraw. On October 6, the superior court
issued its order denying the motion, determining that plea counsel’s
testimony was more credible than Hood’s testimony and that Hood
failed to show that his plea counsel’s performance was deficient.
1. Hood contends the trial court abused its discretion by
denying his motion to withdraw his guilty plea. This claim has no
merit.
After sentencing, a defendant may withdraw his guilty plea
only to correct a manifest injustice. See McClain v. State, 311 Ga.
514, 515 (858 SE2d 501) (2021); Uniform Superior Court Rule 33.12
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(B) (“In the absence of a showing that withdrawal is necessary to
correct a manifest injustice, a defendant may not withdraw a plea of
guilty or nolo contendere as a matter of right once sentence has been
pronounced by the judge.”).
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.
Powell v. State, 309 Ga. 523, 524 (1) (847 SE2d 338) (2020).
There is no constitutional requirement that a defendant
be informed of his parole eligibility prior to entering a
guilty plea for a guilty plea to be voluntary. Should,
however, counsel make an affirmative misrepresentation
about the collateral consequences of a plea, such as parole
eligibility, the misrepresentation may form the basis of an
ineffective assistance of counsel claim.
Crowder v. State, 288 Ga. 739, 739 (707 SE2d 78) (2011) (citations
omitted). To prevail on his claim, Hood “must show both that his
plea counsel’s performance was constitutionally deficient and that
the deficient performance prejudiced his defense.” Wright v. State,
314 Ga. 355, 357 (877 SE2d 178) (2022) (citing to Strickland v.
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Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984)). To meet the first prong of the Strickland test, Hood “must
overcome the strong presumption that counsel’s performance fell
within a wide range of reasonable professional conduct, and that
counsel’s decisions were made in the exercise of reasonable
professional judgment.” Wright, 314 Ga. at 357 (citation and
punctuation omitted). To meet the second prong of the Strickland
test in the guilty plea context, Hood “must demonstrate that there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.”
Id. (citation and punctuation omitted). “If an appellant fails to meet
his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.” Collins
v. State, 312 Ga. 727, 744 (8) (864 SE2d 85) (2021) (citation and
punctuation omitted). “This Court accepts a superior court’s factual
findings and credibility determinations on an ineffectiveness claim
unless they are clearly erroneous, but we apply legal principles to
the facts de novo.” Powell, 309 Ga. at 526-527 (2).
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In this case, the superior court found that plea counsel’s
testimony that she provided Hood with “informed legal advice
regarding the consequences of his decision to plead guilty” was
“credible” and that plea counsel’s testimony “countered” the
testimony of Hood. The superior court’s credibility findings, which it
was entitled to make, were not clearly erroneous. See Powell, 309
Ga. at 525 (1) (“Where the evidence at issue is in conflict, the
credibility of witnesses is for the [superior] court to determine.”).
The superior court then concluded that Hood failed to show that his
plea counsel’s performance was constitutionally deficient. Because
the record supports the superior court’s findings, the court did not
abuse its discretion in denying Hood’s motion to withdraw his guilty
plea. See Wright, 314 Ga. at 359.
2. At sentencing, the superior court sentenced Hood on both the
malice murder count and the aggravated assault count. That was
error. See Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344) (2020)
(“When there is no evidence to suggest the occurrence of an
aggravated assault independent of the act which caused the victim’s
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death . . . a jury’s guilty verdict on the aggravated assault merges as
a matter of fact with the malice murder verdict for sentencing
purposes.” (citation and punctuation omitted)). Hood does not raise
this error. But “an exercise of our discretion on direct appeal to
correct a merger error that harms a defendant (but of which he has
not complained) may avoid unnecessary habeas proceedings and
thereby promotes judicial economy.” Dixon v. State, 302 Ga. 691, 697
(4) (808 SE2d 696) (2017). Accordingly, we vacate Hood’s conviction
for aggravated assault (Count 3).
3. Also at sentencing, during the superior court’s oral
pronouncement of Hood’s sentence, the court sentenced Hood to
serve three years in prison on the possession of a controlled
substance in Schedule I count (Count 7). However, Hood’s written
sentence reflects that he was sentenced to serve seven years in
prison on Count 7. But the maximum sentence for possession of a
controlled substance in Schedule I, under the circumstances of this
case, is three years. See OCGA § 16-13-30 (c) (1). Although this error
has not been raised by Hood, we vacate Hood’s void sentence on
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Count 7 and remand the case for resentencing within the statutory
parameters. See Barber v. State, 314 Ga. 759, 766 (3) (879 SE2d 428)
(2022) (“[A] sentence is void if the court imposes punishment that
the law does not allow.” (citation and punctuation omitted));
Goodman v. State, 313 Ga. 762, 770 (2) (c) (873 SE2d 150) (2022)
(“[W]e often do exercise our discretion sua sponte to vacate a
sentence for the benefit of defendants if we notice that it is void.”).
Judgment affirmed in part and vacated in part, and case
remanded. All the Justices concur.
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