Johnson v

State, 287 Ga. App. 759, 652 S.E.2d 836 (2007). Trial court properly denied the defendant’s motion to withdraw the defendant’s guilty pleas because the defendant did not move to withdraw the defendant’s guilty pleas until the term of court following the term in which the defendant was sentenced; therefore, the defendant’s only available means to withdraw the defendant’s guilty pleas was through habeas corpus proceedings, and even if the defendant’s motion had been timely, the defendant voluntarily and intelligently entered the defendant’s guilty pleas. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011). Trial court did not err in denying the defendant’s motion to withdraw the defendant’s guilty plea to possession of a controlled substance as the defendant entered the guilty plea seven years before the defendant filed a motion to withdraw; therefore, the trial court lacked jurisdiction to allow withdrawal of the plea under the general rule providing that a trial court lacked jurisdiction to allow the withdrawal of a guilty plea when the term of court had expired in which the defendant was sentenced. In light of those time limitations, it was too late for the defendant to withdraw the defendant’s guilty plea seven years later, and nothing in O.C.G.A. § 17-7-93(b) changed this. Simmons v. State, 315 Ga. App. 82, 726 S.E.2d 573 (2012). Withdrawal denied in case of first offender. — Trial court did not err in instructing the defendant that the defendant would not be allowed to withdraw the Alford plea between the time the plea was entered and the pronouncement of the sentence; this instruction did not violate O.C.G.A. § 17-7-93(b) as that statute did not apply to pleas resulting in treatment as a first offender under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et 523 Withdrawal of Pleas (Cont’d) seq. Winkles v. State, 275 Ga. App. 351, 620 S.E.2d 594 (2005). Legislative intent as to nolo contendere pleas. — General Assembly intended for the plea of nolo contendere to stand upon the same footing as a plea of guilty in all respects, except when otherwise specially provided, to constitute the remedy of the evil of the old law when only a plea of guilty or not guilty was available, and intended that the right to withdraw the plea be accorded any time before pronouncement of judgment as provided in this section as to a plea of guilty. Wright v. State, 75 Ga. App. 764, 44 S.E.2d 569 (1947). Withdrawn guilty plea not admissible. — In two cousins’ trial for the murder of a drug dealer, cousin one’s trial counsel did not provide ineffective assistance by failing to seek admission of statements that cousin two made, which exonerated cousin one, when cousin two attempted to plead guilty because under O.C.G.A. § 17-7-93(b), cousin two’s withdrawn guilty plea was not admissible. Esprit v. State, 305 Ga. 429, 826 S.E.2d 7 (2019). Guilty plea may be withdrawn before sentence pronounced. — Before sentence is pronounced, the defendant may withdraw the defendant’s plea of guilty as a matter of right. Welch v. State, 63 Ga. App. 277, 11 S.E.2d 42 (1940); Clark v. State, 72 Ga. App. 603, 34 S.E.2d 608 (1945); King v. State, 91 Ga. App. 388, 85 S.E.2d 637 (1955); Higgins v. State, 92 Ga. App. 739, 90 S.E.2d 40 (1955); Calloway v. State, 115 Ga. App. 158, 154 S.E.2d 291 (1967). Before sentence is pronounced, the defendant has the right to withdraw the defendant’s guilty plea. Galbreath v. State, 130 Ga. App. 179, 202 S.E.2d 562 (1973); Lee v. State, 139 Ga. App. 65, 227 S.E.2d 878 (1976); Weathers v. State, 149 Ga. App. 617, 255 S.E.2d 90 (1979). Accused may withdraw a guilty plea at any time before judgment is announced and may then plead not guilty. Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979). Defendant can withdraw the defendant’s plea at any time before the defen- 17-7-93 dant’s sentence is pronounced; therefore, when the defendant was clearly informed of both the maximum and the minimum sentence defendant could receive before the defendant’s sentence was entered, the defendant could have withdrawn the defendant’s plea before the trial court pronounced the defendant’s sentence if the defendant found the minimum sentence to be unacceptable. Johnson v. State, 242 Ga. App. 89, 528 S.E.2d 861 (2000). Trial court erred in denying the motion to withdraw the defendant’s plea prior to resentencing the defendant on the incest count as the defendant had an absolute right to withdraw the plea before sentence was pronounced. Further, as the sentence imposed on the remaining counts was likewise void, the defendant was entitled to withdraw the defendant’s plea as to the other five counts. Martinez-Chavez v. State, 352 Ga. App. 142, 834 S.E.2d 139 (2019). Right is not qualified or limited. — Right given a defendant under this section to withdraw a plea of guilty and plead not guilty at any time before judgment was pronounced was not qualified or limited in any way. Fowler v. State, 41 Ga. App. 333, 153 S.E. 90 (1930). Until sentence is pronounced upon a prisoner, the prisoner has an unlimited right to withdraw the prisoner’s plea of guilty. McCrary v. State, 215 Ga. 887, 114 S.E.2d 133 (1960). Defendant had an unqualified statutory right to withdraw a guilty plea at any time before judgment was pronounced by oral announcement of the sentence by the court, notwithstanding an assertion by the state that the defendant was precluded from withdrawing the defendant’s agreement because the defendant entered a negotiated plea agreement and received certain benefits by virtue of the agreement. Chives v. State, 214 Ga. App. 786, 449 S.E.2d 152 (1994). Trial court’s denial of the defendant’s motion to withdraw the defendant’s guilty plea was reversed; although the defendant signed a drug court contract obligating the defendant to undergo rehabilitation, the defendant was never sentenced and retained the ability to withdraw the plea as a matter of right. Stinson v. State, 524 264 Ga. App. 774, 592 S.E.2d 141 (2003). Trial court must inform defendant of the right to withdraw a plea if a negotiated plea is rejected. This ‘‘bright line’’ rule cannot be satisfied with implicit rejection of a plea. Forrest v. State, 251 Ga. App. 487, 554 S.E.2d 735 (2001). Trial court held a hearing on the defendant’s motion to withdraw a guilty plea, but did not appoint an attorney to represent the defendant or inform the defendant of the right to counsel; thus, the defendant’s constitutional right to counsel during the plea proceedings was denied. Kennedy v. State, 267 Ga. App. 314, 599 S.E.2d 290 (2004). Because the trial judge accepted the negotiated agreement upon the defendant’s entering of an Alford plea to a particular charge, there was no requirement that the defendant be informed about the right to withdraw the plea prior to judgment being pronounced, pursuant to O.C.G.A. § 17-7-93(b); such information to the defendant was only required if the trial court intended to reject the negotiated plea agreement. Storch v. State, 276 Ga. App. 789, 625 S.E.2d 70 (2005). Oral sentence not reduced to writing could be changed with notice to defendant. — Although a magistrate who was appointed to preside at a county drug court pursuant to O.C.G.A. § 15-1-9.1(b)(2) had authority to accept a defendant’s guilty plea to marijuana possession, the superior court judge had the power to set aside the sentence, which was not reduced to writing, pursuant to O.C.G.A. § 17-7-93(b), give notice of intent to impose a harsher sentence, and allow the defendant to withdraw the defendant’s plea. Surh v. State, 303 Ga. App. 380, 693 S.E.2d 501, cert. denied, No. S10C1274, 2010 Ga. LEXIS 705 (Ga. 2010). Plea may be withdrawn of right after dismissal and discharge of jurors. — Accused has the right to withdraw a guilty plea prior to judgment even after the witnesses have been dismissed and the jurors have been discharged in reliance upon the guilty plea. Nobles v. State, 17 Ga. App. 382, 86 S.E. 1073 (1915); Burkett v. State, 131 Ga. App. 177, 205 S.E.2d 496 (1974). 17-7-93 Exercise of the right to withdraw a guilty plea is not hampered or impaired by the fact that in reliance on the earlier plea of guilty witnesses and jurors may have been dismissed. Hardman v. State, 143 Ga. App. 689, 239 S.E.2d 699 (1977). Pleas may be withdrawn even though sentence has been delayed at defendant’s own instance. Nobles v. State, 17 Ga. App. 382, 86 S.E. 1073 (1915). Right to withdraw plea is restricted to period before sentence is pronounced. — Reducing to writing of the trial judge’s probation sentence and the filing of the sentence with the clerk of the court was sufficient compliance with former Code 1933, § 27-1404 (see O.C.G.A. § 17-7-93) so as to prevent the withdrawal of the plea of guilty as a matter of right. Davenport v. State, 136 Ga. App. 913, 222 S.E.2d 644 (1975). Right to withdraw a plea of guilty ceases after sentence is entered. Gray v. State, 157 Ga. App. 745, 278 S.E.2d 457 (1981). Defendant no longer has an absolute statutory right to withdraw the defendant’s guilty plea after the trial court announces the sentence. Fair v. Zant, 715 F.2d 1519 (11th Cir. 1983). Oral pronouncement of sentence by the trial court ends any absolute statutory right to withdraw a guilty plea. Coleman v. State, 256 Ga. 77, 343 S.E.2d 695 (1986). Defendant does not have an absolute statutory right to withdraw a guilty plea after the trial court’s oral announcement of the sentence. Stevens v. State, 202 Ga. App. 473, 414 S.E.2d 702 (1992). Defendant did not have the right to withdraw the defendant’s plea after the trial court pronounced the defendant’s sentence, even though the defendant tried to do so before the court addressed the defendant’s request to reduce the sentence. Manues v. State, 232 Ga. App. 454, 501 S.E.2d 826 (1998). Even though the defendant’s motion to withdraw a plea was signed the day before sentence was pronounced, because the motion was not filed until five days after sentence was pronounced, the trial court did not abuse the court’s discretion in 525 Withdrawal of Pleas (Cont’d) denying the motion. Isaac v. State, 237 Ga. App. 723, 516 S.E.2d 575 (1999). Since the defendant did not move to withdraw the defendant’s non-negotiated plea until after the trial court pronounced sentence, the defendant had no right to withdraw the plea. Brassfield v. State, 242 Ga. App. 747, 531 S.E.2d 148 (2000). Absolute right to withdrawal lost once written sentence entered. — When the trial court simply neglects to pronounce orally the sentence at the plea hearing but does enter a written judgment of sentence, a defendant loses the defendant’s absolute right to withdraw the defendant’s guilty plea at the time the written sentence is filed and any motion to withdraw the plea must be made in the same term of court in which the sentence was filed. Barton v. State, 331 Ga. App. 887, 769 S.E.2d 96 (2015). After sentence pronounced, withdrawal is within court’s discretion. — Motion to withdraw a plea of guilty after sentence is pronounced is within the sound legal discretion of the court. Bearden v. State, 13 Ga. App. 264, 79 S.E. 79 (1913); Clark v. State, 72 Ga. App. 603, 34 S.E.2d 608 (1945); Rowland v. State, 72 Ga. App. 793, 35 S.E.2d 372 (1945); Strickland v. State, 199 Ga. 792, 35 S.E.2d 463 (1945); King v. State, 91 Ga. App. 388, 85 S.E.2d 637 (1955); Higgins v. State, 92 Ga. App. 739, 90 S.E.2d 40 (1955); McCrary v. State, 215 Ga. 887, 114 S.E.2d 133 (1960); Holston v. State, 103 Ga. App. 373, 119 S.E.2d 302 (1961); Calloway v. State, 115 Ga. App. 158, 154 S.E.2d 291 (1967); Marshall v. State, 128 Ga. App. 413, 197 S.E.2d 161 (1973); Thomas v. State, 231 Ga. 298, 201 S.E.2d 415 (1973); Galbreath v. State, 130 Ga. App. 179, 202 S.E.2d 562 (1973); Ballard v. State, 131 Ga. App. 847, 207 S.E.2d 246 (1974); Lee v. State, 139 Ga. App. 65, 227 S.E.2d 878 (1976); Weathers v. State, 149 Ga. App. 617, 255 S.E.2d 90 (1979); Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979); Crump v. State, 154 Ga. App. 359, 268 S.E.2d 411 (1980); Dankert v. State, 154 Ga. App. 392, 268 S.E.2d 435 (1980); Miller v. State, 160 Ga. App. 639, 287 S.E.2d 643 (1981). 17-7-93 When a motion to withdraw a plea of guilty is made after the sentence is entered in writing and handed to the clerk, the granting or refusal thereof is in the sound discretion of the trial judge. King v. State, 91 Ga. App. 388, 85 S.E.2d 637 (1955). After a sentence has been filed with the clerk, it is discretionary with the trial judge whether the judge will permit withdrawal. Duncan v. State, 148 Ga. App. 685, 252 S.E.2d 190 (1979). Accused may withdraw a guilty plea at any time before judgment is announced and may then plead not guilty. However, once sentence is pronounced, a withdrawal of a plea is within the sound discretion of the court. Kight v. State, 158 Ga. App. 698, 282 S.E.2d 176 (1981); Bowens v. State, 194 Ga. App. 391, 390 S.E.2d 634 (1990); Threatt v. State, 211 Ga. App. 630, 440 S.E.2d 61 (1994), overruled on other grounds, 266 Ga. 657, 469 S.E.2d 22 (1996). Defendant may withdraw the defendant’s plea of guilty as a matter of right before sentence is pronounced, but after the pronouncement of a sentence, a ruling on a motion to withdraw a guilty plea is within the sound discretion of the trial court and this discretion will not be disturbed on appeal unless manifestly abused. DeLapuente v. State, 182 Ga. App. 808, 357 S.E.2d 155 (1987); Dalton v. State, 244 Ga. App. 203, 534 S.E.2d 523 (2000); Rowe v. State, 246 Ga. App. 855, 542 S.E.2d 578 (2000). Offer to allow the defendant to withdraw the defendant’s guilty plea if the defendant was not satisfied with the sentence expired by virtue of the defendant’s failure to respond when sentence was pronounced. Freeman v. State, 211 Ga. App. 716, 440 S.E.2d 490 (1994). After a guilty plea has been accepted and sentence has been pronounced, whether to allow a defendant to withdraw a guilty plea is within the discretion of the trial count, and the trial court’s decision will not be disturbed on appeal unless the court has manifestly abused the court’s discretion. Whitesides v. State, 266 Ga. App. 181, 596 S.E.2d 706 (2004). Trial court did not abuse the court’s discretion in denying the defendant’s mo- 526 tion to withdraw a guilty plea to charges of trafficking in methamphetamine and possession of marijuana as the defendant acknowledged, and the record showed, that the trial court advised the defendant of the maximum allowable sentence on both a trafficking in methamphetamine and possession of marijuana charge, as well as the mandatory minimum sentence on the former offense; further, despite the fact that the waiver of rights form the defendant signed incorrectly stated that the maximum term of imprisonment was 30 years, rather than 31 years, given the aforementioned, the mistake did not amount to a manifest injustice requiring reversal of the court’s refusal to allow withdrawal. Rodriguez v. State, 280 Ga. App. 423, 634 S.E.2d 182 (2006). Even if a prior ruling did not preclude consideration of the voluntariness of the defendant’s plea, as the defendant did not raise in the trial court the issue of the defendant’s mental competence to enter a plea, the defendant was precluded from raising it on appeal; therefore, the trial court did not abuse the court’s discretion in denying the defendant’s motion to withdraw the guilty plea. Adams v. State, 316 Ga. App. 161, 728 S.E.2d 711 (2012). Appellate court’s reversal did not give right to withdraw plea. — In the context of a defendant’s absolute right to withdraw a guilty plea pursuant to O.C.G.A. § 17-7-93(b), the appellate court’s reversal of an amendment to the sentence did not give defendant an absolute right to withdraw the plea as defendant’s sentence of life in prison was still valid. Shaheed v. State, 276 Ga. 291, 578 S.E.2d 119 (2003). When the defendant pled guilty to aggravated assault, armed robbery, and robbery, and the defendant’s aggravated assault convictions and sentences were vacated on appeal, the defendant had no right, on remand, to withdraw the defendant’s guilty plea as to the other convictions because there was no basis to find the separate and distinct sentences entered on those convictions were void. Murray v. State, 314 Ga. App. 240, 723 S.E.2d 531 (2012). Withdrawal after term of court when sentence pronounced. — Trial 17-7-93 court has no authority to permit a defendant to withdraw the defendant’s plea after the term of court when sentence was pronounced. State v. Kight, 175 Ga. App. 65, 332 S.E.2d 363 (1985). If sentence already had been pronounced prior to the defendant’s filing a motion to withdraw a guilty plea, and the term of court at which the judgment was entered had also passed, the trial court did not abuse the court’s discretion in denying the motion. Hughes v. State, 176 Ga. App. 443, 336 S.E.2d 346 (1985). After the expiration of the term of court in which the sentence was entered and the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. Staley v. State, 184 Ga. App. 402, 361 S.E.2d 702 (1987). Because a trial court lacked jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court in which the defendant was sentenced under the plea, the trial court properly dismissed the defendant’s motion based on a lack of jurisdiction. Smith v. State, 283 Ga. 376, 659 S.E.2d 380 (2008). Court’s judgment on withdrawal will not be set aside unless abused. Rowland v. State, 72 Ga. App. 793, 35 S.E.2d 372 (1945); King v. State, 91 Ga. App. 388, 85 S.E.2d 637 (1955). Discretion of the trial judge will not be controlled absent a showing of a clear abuse of discretion. Calloway v. State, 115 Ga. App. 158, 154 S.E.2d 291 (1967). Court’s discretion was not to be disturbed on the appellate level unless manifestly abused. Thomas v. State, 231 Ga. 298, 201 S.E.2d 415 (1973); Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979). Court’s discretion as regards withdrawal of a guilty plea will not be disturbed unless there is a manifest abuse of discretion. Kight v. State, 158 Ga. App. 698, 282 S.E.2d 176 (1981). Ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. Johnson v. State, 260 Ga. App. 897, 581 S.E.2d 407 (2003). Trial court did not abuse the court’s discretion in denying the defendant’s mo- 527 Withdrawal of Pleas (Cont’d) tion to withdraw a guilty plea as: (1) the defendant’s counsel was not ineffective; (2) no evidence of coercion was presented; (3) if the defendant proceeded to trial, the defendant’s counsel would have been prepared; and (4) the defendant elected not to pursue a motion for replacement counsel; even assuming that counsel’s performance was somehow deficient, the defendant failed to show a reasonable probability that, but for the allegedly deficient performance, the defendant would have elected to proceed to trial. Muckle v. State, 283 Ga. App. 395, 641 S.E.2d 603 (2007). Adverse unanticipated collateral consequences are not valid reasons for reversal of the trial court’s refusal to withdraw a plea. Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979). Manner in which discretion to be exercised. — Trial court’s discretion must be exercised, not in opposition to, but in accordance with, established rules of law. King v. State, 91 Ga. App. 388, 85 S.E.2d 637 (1955). In exercising the court’s discretion, the trial judge settles all conflicts in evidence and is the exclusive arbiter of the facts. Holston v. State, 103 Ga. App. 373, 119 S.E.2d 302 (1961). Test for withdrawal of plea after sentencing. — Question in considering whether or not to allow the withdrawal of a plea of guilty after sentencing is whether the defendant entered the plea freely and voluntarily, without any hope of benefit. Rowland v. State, 72 Ga. App. 793, 35 S.E.2d 372 (1945). Defendant’s argument that the defendant had an absolute right to withdraw the defendant’s guilty plea in its entirety before resentencing because a portion of the defendant’s original sentence was vacated was rejected as case law precedent established that since only a discrete provision of the defendant’s sentence was invalidated, the defendant was ineligible to withdraw the defendant’s guilty plea. Troutman v. State, 348 Ga. App. 375, 823 S.E.2d 66 (2019). Guilty plea freely and voluntarily entered. — Because a trial judge informed the defendant of the charges as 17-7-93 well as the possible penalties for conviction on those charges, the defendant’s guilty plea was freely and voluntarily entered; the defendant failed to show that counsel’s trial strategies were ineffective, and consequently, the trial court properly denied the defendant’s motion to withdraw the guilty pleas. Hart v. State, 272 Ga. App. 754, 613 S.E.2d 107 (2005). Trial court did not err by denying a defendant’s motion to withdraw the defendant’s guilty plea as the plea was entered knowingly and intelligently since: (1) the trial court found a sufficient factual basis for the plea, determined that the defendant understood and voluntarily entered the plea, and correctly informed the defendant of the possible sentences the defendant could receive; and (2) the trial court further informed the defendant of the rights the defendant was waiving by pleading guilty, including the defendant’s rights to remain silent, to trial by jury, to subpoena and confront witnesses, and to testify. Rios v. State, 281 Ga. 181, 637 S.E.2d 20 (2006). Trial court did not abuse the court’s discretion in denying the defendant’s motion to withdraw a guilty plea as the trial court was well aware of the medications the defendant was taking when the plea was entered, the medications did not affect the defendant’s ability to understand the proceedings, and an expert opined that the defendant was feigning hallucinations and was competent to stand trial; hence, at that point, the trial court had no duty to make any further inquiries into the defendant’s ability to competently tender a plea. McDowell v. State, 282 Ga. App. 754, 639 S.E.2d 644 (2006). Because: (1) the record adequately showed that the defendant voluntarily entered a non-negotiated guilty plea, with a full understanding of the rights waived and the sentence which could have been imposed; (2) the trial court reviewed the relevant Boykin questions; and (3) the defendant had ample time to discuss the plea with counsel and was not rushed or forced to enter the plea, the trial court did not err in denying withdrawal of the guilty plea. Brown v. State, 285 Ga. App. 119, 645 S.E.2d 606 (2007). In light of the record which showed that 528 the defendant: (1) was well advised during the guilty plea hearing that the sentence recommended by the state was without the possibility of parole; (2) was given the option to enter the plea or proceed to a jury trial; (3) discussed the entry of the guilty plea with counsel; and (4) chose to accept the negotiated plea offer, the trial court properly rejected the defendant’s claim that the state failed to show that the plea was entered intelligently and voluntarily; thus, the defendant’s post-sentence motion to withdraw the guilty plea was properly denied. Moore v. State, 286 Ga. App. 99, 648 S.E.2d 451 (2007). Because the defendant failed to show sufficient evidence of a psychological impairment, due in part by ceasing to take needed medication, sleep deprivation, racing thoughts or other psychological turmoil, or that trial counsel was ineffective as to counsel’s advice regarding sentencing as a recidivist under O.C.G.A. § 17-10-7, the appeals court agreed that a guilty plea was intelligently and voluntarily entered; thus, the trial court properly denied a motion to withdraw the guilty plea. Frost v. State, 286 Ga. App. 694, 649 S.E.2d 878 (2007). Because the defendant failed to show that counsel’s ineffectiveness warranted an order allowing the withdrawal of a guilty plea, or that a manifest injustice resulted due to counsel’s ineffective assistance, but the record amply demonstrated that the defendant’s plea was knowingly, intelligently, and voluntarily entered, the trial court properly denied a motion to withdraw the plea; moreover, the defendant’s position ignored the state’s other evidence that the state would have presented supporting the defendant’s guilt had the case gone to trial. Sallins v. State, 289 Ga. App. 391, 657 S.E.2d 309 (2008). Trial court properly denied withdrawal of the defendant’s guilty plea because the record sufficiently showed that: (1) the defendant entered a guilty plea to two counts of child molestation both knowingly and voluntarily, and in recognition of the rights being waived, absent any coercion or hope; and (2) the sentence was properly imposed, absent any proof that defense counsel was ineffective. Geyer v. State, 289 Ga. App. 492, 657 S.E.2d 878 (2008). 17-7-93 Defendant voluntarily, knowingly, and intelligently entered into a plea of guilty to, inter alia, aggravated stalking because while the defendant thought the plea involved a reduced charge with no prison time, the defendant’s trial counsel gave contradictory evidence, which was supported by the plea proceeding record; additionally, although the prosecutor conducted the plea colloquy and questioned the defendant about the waiver of the defendant’s rights, such was not a ground for reversal. Ransom v. State, 293 Ga. App. 651, 667 S.E.2d 686 (2008). Failure to advise of rights. — Because an inmate was not advised at a plea hearing of the right to confront witnesses and to avoid self-incrimination by either the defense attorney or the sentencing court, the inmate did not make a knowing and intelligent waiver of those rights; therefore, the trial court erred by denying the inmate’s petition for habeas corpus. Johnson v. Smith, 280 Ga. 235, 626 S.E.2d 470 (2006). Counsel ineffective for failing to inform defendant of right to withdraw plea. — Defendant’s conviction based on a guilty plea was properly set aside because the defendant did not waive a statutory right to withdraw the guilty plea at any time prior to sentencing as there was no indication in the sentencing transcript that such a waiver was made; no reasonable attorney providing constitutionally effective representation would fail to inform the defendant of an absolute statutory right to withdraw a plea when the attorney had obtained new information that changed the attorney’s assessment of the defendant’s case and had not yet fully discussed that information and its relevance with the defendant; and there was prejudice as the defendant would have withdrawn the guilty plea prior to sentencing and continued with trial. Nelson v. Wilkey, No. S20A0013, 2020 Ga. LEXIS 468 ( June 29, 2020). Grounds for discretionary withdrawal of plea generally. — After sentence, the judge may permit a guilty plea to be withdrawn upon meritorious grounds addressed to the judge’s discretion. Welch v. State, 63 Ga. App. 277, 11 S.E.2d 42 (1940). 529 Withdrawal of Pleas (Cont’d) Defendant should be permitted to withdraw the defendant’s plea, even after sentence is pronounced, upon reasonable grounds being timely shown and when the ends of justice dictate such a course, and the discretion vested in the trial courts in such matters should always be exercised in favor of innocence, liberty, and justice. Calloway v. State, 115 Ga. App. 158, 154 S.E.2d 291 (1967). Trial court erred in refusing to allow the defendant to withdraw the defendant’s guilty plea since the court did not inform the defendant personally that: (1) the trial court was not bound by any plea agreement; (2) the trial court intended to reject the plea agreement presently before the court; (3) the disposition of the present case could be less favorable to defendant than that contemplated by the plea agreement; and (4) the defendant could then withdraw the defendant’s plea as a matter of right. Gordon v. State, 190 Ga. App. 414, 379 S.E.2d 221 (1989). Trial court abused the court’s discretion in denying the defendant’s motion to withdraw the defendant’s guilty plea when, even though the defendant gave the attorney power of attorney to enter a plea, there was no showing that the defendant knew the defendant was waiving specific federal rights, or that the defendant understood the nature of the charges against the defendant or consequences of the defendant’s plea. Parks v. State, 223 Ga. App. 694, 479 S.E.2d 3 (1996). Trial court did not err in denying defendant’s motion to withdraw defendant’s guilty plea to the offense of first-degree homicide by vehicle as the evidence showed that the plea was knowingly and voluntarily made, and that the defendant understood the nature of the offense and the consequences of the defendant’s plea; moreover, the evidence did not show that the defendant’s plea was made due to any ineffective assistance rendered by the defendant’s counsel who properly prepared the defendant’s case and advised the defendant about the sentence the defendant might receive. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003). Trial court did not err in denying the 17-7-93 defendant’s motion to withdraw the defendant’s guilty plea in a case where the defendant pled guilty to charges of voluntary manslaughter and aggravated stalking involving the death of a woman who was stabbed 24 times as the trial court first determined that there was a factual basis for the plea and, thus, the record showed that the defendant knowingly and voluntarily pled guilty to the charges. Brown v. State, 261 Ga. App. 448, 582 S.E.2d 588 (2003). When the defendant, at the defendant’s sentencing hearing, presented evidence on the defendant’s behalf without objection and with knowledge of the maximum possible punishment the defendant might face by entering a guilty plea, and had an opportunity to address the trial court but said nothing to indicate that the defendant had doubts about entering the guilty plea, the trial court’s finding that the defendant did not demonstrate ineffective assistance of counsel based on counsel’s failure to move to withdraw the guilty plea was affirmed. Voils v. State, 266 Ga. App. 738, 598 S.E.2d 33 (2004). Fraud in obtaining plea as basis for withdrawal. — Exception to the rule that withdrawal is in the court’s discretion occurs in cases where fraud has been practiced to obtain the plea of guilty. Griffin v. State, 12 Ga. App. 615, 77 S.E. 1080 (1913); Sanders v. State, 18 Ga. App. 786, 90 S.E. 728 (1916). See also Woodward v. State, 13 Ga. App. 130, 78 S.E. 1009 (1913); Polston v. State, 15 Ga. App. 632, 83 S.E. 1101 (1915). Unawareness of waiver of privilege against self incrimination. — While Boykin does not command the use of any precise ‘‘magic words’’ in establishing that a defendant understands the rights the defendant is waiving by pleading guilty, the habeas court erred in finding that the state met the state’s burden of establishing that the defendant’s guilty plea was made voluntarily, knowingly, and intelligently because the record failed to show that any comment by the trial court, or by the defendant’s counsel, informed the defendant that by pleading guilty the defendant would waive the privilege against compulsory self-incrimination. Arnold v. Howerton, 282 Ga. 66, 646 S.E.2d 75 (2007). 530 Misunderstanding or being misled by counsel. — Defendant’s mere contention that the defendant did not understand or was misled by the defendant’s own counsel affords no basis for withdrawal of the defendant’s plea of guilty. Marshall v. State, 128 Ga. App. 413, 197 S.E.2d 161 (1973). When counsel’s testimony contradicted the defendant’s testimony regarding the nature and quantity of consultation and counsel’s decision not to consider a coindictee as a valuable witness was strategic or tactical, the defendant’s guilty plea was not void due to ineffective assistance of counsel. McCutchen v. State, 276 Ga. 532, 579 S.E.2d 732 (2003). Trial court did not err in denying the defendant’s motion to withdraw the defendant’s guilty plea on grounds that the defendant’s attorney failed to inform the defendant that the defendant’s plea was open-ended as opposed to negotiated, where the plea transcript showed that the defendant was well aware that the plea was open-ended; that the defendant understood the consequences of the plea; and that the defendant entered the defendant’s plea freely, knowingly, and voluntarily with a full understanding that the defendant was subject to the maximum sentence. Dudley v. State, 266 Ga. App. 336, 596 S.E.2d 772 (2004). Defendant’s motion to withdraw a guilty plea was properly denied as the defendant failed to show that the defense counsel’s performance was deficient in advising the defendant to enter a non-negotiated plea without a recommendation from the state; the defendant did not overcome the presumption that the defense counsel’s conduct was reasonable. The defendant’s testimony that the defense counsel led the defendant to believe that the defendant’s sentence would be no more than ten years was contradicted by the evidence. Brown v. State, 280 Ga. App. 767, 634 S.E.2d 875 (2006). Defendant failed to show that the defendant received ineffective assistance of counsel with regard to being coerced or deceived by counsel as to length of sentence that could be imposed, and the trial court did not err by denying the defendant’s motion to withdraw a guilty plea 17-7-93 entered into because the record did not support the defendant’s claim that counsel deceived the defendant about the length of the sentence as the defendant was advised of the maximum possible sentence and was told that there was no guarantee as to the length of sentence that would be imposed. Brantley v. State, 290 Ga. App. 764, 660 S.E.2d 846 (2008). Trial court properly denied the defendant’s motion to withdraw a guilty plea to a charge of malice murder because sufficient evidence was presented to support a finding that: (1) counsel did not render ineffective assistance in advising the defendant as to the plea; (2) counsel attempted, albeit unsuccessfully to pursue a voluntary manslaughter defense and plea deal with the state; (3) the defendant was generally competent at the time of the murder; (4) a statement by a proposed expert witness in support of said defense would have been inadmissible as an opinion on the ultimate issue and could not, in any event, have helped the defendant’s case; and (5) the viability of any type of voluntary manslaughter defense was highly unlikely. Trauth v. State, 283 Ga. 141, 657 S.E.2d 225 (2008). Effective assistance of counsel supported denial of motion to withdraw guilty plea. — Because the defendant failed to show that prejudice resulted from counsel’s failure to convey that the state’s negotiated plea offer had a time limit, but the evidence instead showed that the defendant had no intent to accept the offer and immediately and strongly rejected the offer, the trial court properly denied a motion to withdraw the defendant’s guilty plea based on an ineffective assistance of counsel claim. Burch v. State, 289 Ga. App. 388, 657 S.E.2d 294 (2008). Trial court did not abuse the court’s discretion in denying a defendant’s motion to withdraw the defendant’s guilty plea because the defendant failed to prove the prejudice prong of the defendant’s ineffectiveness claim since, at the hearing on the motion to withdraw the plea, the defendant proffered no evidence that a deoxyribonucleic acid (DNA) test pursuant to O.C.G.A. § 5-5-41 would have rebutted the state’s evidence, regarding the defendant’s incest conviction pursuant to 531 Withdrawal of Pleas (Cont’d) O.C.G.A. § 16-6-22, that the defendant and the victim were half-siblings; in addition, counsel’s strategy to forego a DNA test was one of trial tactics and did not provide a basis on which to find that counsel’s representation was deficient. Hunter v. State, 294 Ga. App. 583, 669 S.E.2d 533 (2008). Since the record did not support defendant’s claim that the defendant was coerced into pleading guilty and the defendant did not show that the trial court erred in requiring a new bond, the trial court properly denied the defendant’s motion to reduce or modify the sentence. Crumpton v. State, 267 Ga. App. 332, 599 S.E.2d 297 (2004). Trial court properly denied the defendant’s plea withdrawal motion as the court fully informed the defendant that the sentence the court intended on imposing would be without parole, despite failing to advise the defendant of that factor prior to the acceptance of the plea. Thomas v. State, 287 Ga. App. 500, 651 S.E.2d 801 (2007). Because the defendant failed to present the testimony of either trial counsel to support a claim of ineffective assistance of counsel and, thus, the record of the new trial hearing was silent as to what actions were taken by counsel to prepare for the plea or to investigate the ramifications of the previous plea, the trial court did not err in denying the defendant’s withdrawal of the plea. Jackson v. State, 288 Ga. App. 742, 655 S.E.2d 323 (2007). Showing of reason for disavowing statement. — Defendant should not be permitted to disavow a statement reflecting the consequences of a guilty plea without a showing demonstrating a good reason to disregard it. Anderson v. State, 194 Ga. App. 395, 390 S.E.2d 637 (1990). Erroneous denial of motion to withdraw plea. — See Rowland v. State, 72 Ga. App. 793, 35 S.E.2d 372 (1945); Strickland v. State, 199 Ga. 792, 35 S.E.2d 463 (1945). Trial court erred in denying the defendant’s motion for an out-of-time appeal of the denial of the defendant’s motion to withdraw the defendant’s guilty plea. It 17-7-93 was obvious that the defendant had attempted to appeal the denial of the defendant’s motion to withdraw and that the defendant’s request for counsel to help the defendant pursue the defendant’s appeal had never been ruled upon; prejudice was presumed and the harmless error analysis did not apply since there had been a total denial of the assistance of counsel. Stockton v. State, 298 Ga. App. 84, 679 S.E.2d 109 (2009). Motion to withdraw plea properly denied. — As counsel did not render ineffective assistance, denial of the defendant’s motion to withdraw the defendant’s guilty plea, which argued that the defendant was forced to plead guilty to possession of a firearm by a convicted felon due to defense counsel’s ineffective assistance, was not an abuse of discretion. Johnson v. State, 274 Ga. App. 641, 618 S.E.2d 716 (2005). Denial of a motion to withdraw a guilty plea was proper because: (1) the record showed that the defendant knowingly and voluntarily withdrew the pre-sentencing motion to change the plea to not guilty; (2) the trial counsel did not render ineffective assistance in failing to obtain a psychiatric evaluation as there was no showing that the evaluation would have shown the existence of a psychiatric defense; and (3) speculation was insufficient to satisfy the prejudice prong of Strickland. Terrell v. State, 274 Ga. App. 539, 618 S.E.2d 175 (2005). Probationer, who elected to plead guilty and underwent alternative treatment in a Drug Court program offered under O.C.G.A. § 16-13-2(a), was not entitled to credit for time spent in treatment when the probationer was subsequently terminated from the program and sentenced on the original crime; moreover, a defendant in the probationer’s position, who pled guilty and utilized the benefits of a rehabilitative option in order to avoid an adjudication of guilt, could not withdraw the plea as a matter of right under O.C.G.A. § 17-7-93(b). Stinson v. State, 279 Ga. App. 107, 630 S.E.2d 553 (2006). Trial court did not abuse the court’s discretion in denying the defendant’s extraordinary motion to set aside a plea, which was treated as a motion to with- 532 draw the guilty plea, as the state met the state’s burden of showing that the defendant entered the plea knowingly and voluntarily, and there was no manifest injustice shown by the denial of the post-sentence request to withdraw pursuant to O.C.G.A. § 17-7-93(b). Williams v. State, 279 Ga. App. 388, 631 S.E.2d 417 (2006). Defendant’s motion to withdraw the defendant’s guilty plea was properly denied since: (1) the defense counsel was not ineffective; (2) the state showed that the plea was knowing, intelligent, and voluntary; (3) the trial court was entitled to discredit contradictory testimony given by the defendant at the motion to withdraw the plea hearing; and (4) the defendant’s claim that the defendant had nothing to gain by entering a ‘‘blind’’ plea failed as even assuming merger of the charges, for sentencing purposes, the defendant still would have faced an additional five years’ to serve if the defendant had not pled guilty. Brown v. State, 280 Ga. App. 767, 634 S.E.2d 875 (2006). Trial court did not err by denying a motion to withdraw the defendant’s guilty plea due to ineffective assistance of counsel at the plea hearing as: (1) counsel met with the defendant several times prior to the plea hearing, reviewed the district attorney’s file, and discussed with the defendant the state’s evidence; (2) counsel moved to suppress the defendant’s statements to the police and discussed the options available with the defendant after the motion was denied, including the state’s offer of a plea recommendation; and (3) the defendant failed to show how additional communication with counsel would have changed the defendant’s decision to enter a guilty plea. Rios v. State, 281 Ga. 181, 637 S.E.2d 20 (2006). Trial court did not abuse the court’s discretion in denying the defendant’s post-sentence motion to withdraw a guilty plea because the defendant failed to show the ineffective assistance of trial counsel in incorrectly assessing the strength of the state’s case and recognizing the existence of exculpatory evidence; moreover, any coercion the defendant experienced did not manifest itself from counsel’s actions, but arose from the circumstances the de- 17-7-93 fendant felt during the entire hearing process. Collier v. State, 281 Ga. App. 646, 637 S.E.2d 72 (2006). Trial court’s order denying the defendant’s motion to withdraw a nolo contendere plea was upheld on appeal as the court was authorized to reject the defendant’s self-serving evidence to find that the plea was freely, knowingly, and voluntarily entered; moreover, the defendant’s coercion claims did not trump the court’s authority to find the same. Patel v. State, 283 Ga. App. 181, 641 S.E.2d 184 (2006). Because no evidence was presented to support the defendant’s claims that a guilty plea was involuntarily entered, made as a result of duress or threats by the state, entered while the defendant was under the influence, or because trial counsel was ineffective, the trial court properly denied the defendant’s amended motion to withdraw the plea. Schlau v. State, 282 Ga. App. 460, 638 S.E.2d 895 (2006), cert. denied, No. S07C0424, 2007 Ga. LEXIS 147 (Ga. 2007). Trial court did not abuse the court’s discretion in denying the defendant’s plea withdrawal motion on ineffective assistance of counsel grounds as the evidence showed that trial counsel made a reasonable strategic decision, based on the defendant’s own statements that failed to show standing, not to move for suppression of the evidence seized pursuant to an allegedly defective warrant affidavit, and as a result, the defendant failed to show prejudice based upon that failure. Lawton v. State, 285 Ga. App. 45, 645 S.E.2d 571 (2007), cert. denied, No. S07C1244, 2007 Ga. LEXIS 670 (Ga. 2007). Trial court properly dismissed the defendant’s motion to correct an allegedly void felony sentence as the sentence was authorized by the law in existence at the time of the defendant’s statutory rape convictions, and the defendant failed to seek withdrawal of the guilty pleas which led to the same as a prerequisite to challenge the sentence imposed; thus, any further relief had to be sought through a petition for habeas corpus. McClendon v. State, 287 Ga. App. 515, 651 S.E.2d 820 (2007), cert. denied, No. S08C0222, 2008 Ga. LEXIS 174 (Ga. 2008). 533 Withdrawal of Pleas (Cont’d) Trial court did not err in denying the defendant’s motion for an out-of-time appeal based on a withdrawal of a guilty plea since the record sufficiently showed that despite initially withdrawing the plea, the defendant negotiated another plea with the state and never again moved to withdraw the plea. Robertson v. State, 287 Ga. App. 271, 651 S.E.2d 198 (2007). Because the defendant waived issues concerning the effectiveness of the plea attorney’s representation, and failed to make a strong showing that a motion to suppress would have been meritorious, the defendant’s motion to withdraw a guilty plea on grounds that counsel was ineffective was properly denied. Hammett v. State, 288 Ga. App. 255, 653 S.E.2d 852 (2007). Order modifying the trial court’s prior banishment order imposed as a condition of the defendant’s probation was upheld on appeal as was the denial of the defendant’s motion to withdraw a negotiated plea, because: (1) the defendant’s sentence was independent, and thus, not part of the negotiated plea agreement; and (2) the trial court adequately considered that the defendant’s crimes were likely motivated by the relationship the defendant had with the victim, the defendant’s ex-spouse, where the ex-spouse resided and worked, as well as where the ex-spouse’s immediate family lived, by determining that the banishment order was issued to protect those affected, but also served a rehabilitative purpose by removing a temptation by the defendant to re-offend. Hallford v. State, 289 Ga. App. 350, 657 S.E.2d 10 (2008). Trial court did not err in denying the defendant’s withdrawal of a plea of guilty to a charge of possession of a firearm by a convicted felon on grounds that the plea was involuntarily entered as the record adequately showed that the trial court informed the defendant of all the constitutional rights that would be waived upon the entry of that plea. Davis v. State, 289 Ga. App. 526, 657 S.E.2d 609 (2008). Based on the plea hearing transcript and the testimony of the defendant’s attorney, the trial court was authorized to 17-7-93 reject the defendant’s claim that the defendant’s Alford plea had not been knowing and voluntary and therefore properly denied the defendant’s motion to withdraw the plea. The fact that the defendant’s interpreter did not testify at the plea withdrawal hearing provided no basis for reversal. Luviano v. State, 291 Ga. App. 677, 662 S.E.2d 770 (2008). Defendant’s motion to withdraw a guilty plea was properly denied when the defendant claimed that trial counsel was ineffective by misinforming the defendant that the defendant’s sentence would run concurrently with any imposed by Tennessee for a parole violation and that the sentence would be served in Tennessee. The motion had been filed well beyond the term of court in which the defendant was sentenced and thus was outside the trial court’s jurisdiction; furthermore, the trial court was entitled to give credit to counsel’s testimony and documents indicating that the Georgia and Tennessee sentences were indeed running concurrently and to counsel’s testimony that the defendant had been forewarned that the defendant might not be able to serve the sentence in Tennessee. Maples v. State, 293 Ga. App. 232, 666 S.E.2d 609 (2008). As the transcript of a guilty plea hearing showed the defendant knew the rights the defendant was waiving and the possible consequences of a guilty plea to child molestation, the defendant’s former counsel testified the defendant expressed no doubts about the guilty plea, and only the defendant’s self-serving testimony indicated the defendant was impaired or under duress when the guilty plea was entered, the trial court did not abuse the court’s discretion in denying the defendant’s motion to withdraw the plea. Likely v. State, 293 Ga. App. 484, 667 S.E.2d 648 (2008). Trial court properly denied the defendant’s motion to withdraw the defendant’s guilty plea based on ineffective assistance under the Sixth Amendment. The record showed that trial counsel, who obtained discovery materials, investigated the case, spoke to the victim and other eyewitnesses, and met with the defendant, was adequately prepared to try the case; moreover, the defendant did not show that 534 additional trial preparation would likely have changed reasonable counsel’s advice regarding the guilty plea or the outcome of a trial. Hammett v. State, 297 Ga. App. 235, 676 S.E.2d 880 (2009). There was no merit to the defendant’s argument that a guilty plea was invalid because the defendant, who was 17 at the time of the offense and entered the plea over a year later, did not have the opportunity to speak to the defendant’s parent before entry of the plea and because the parent was not present in the courtroom. The defendant cited no authority for this contention, and the trial court made careful inquiry showing that the defendant fully understood the nature of the charges and the rights the defendant was relinquishing; accordingly, the trial court properly denied the defendant’s motion to withdraw the defendant’s plea on this ground. Robertson v. State, 297 Ga. App. 228, 676 S.E.2d 871 (2009), cert. denied, No. S09C1300, 2009 Ga. LEXIS 406 (Ga. 2009). Because the defendant failed to show the manifest injustice necessary to authorize post-sentence withdrawal of the defendant’s guilty plea, the trial court did not err when the court denied the defendant’s motion to withdraw. Among other evidence, the transcript showed that the assistant district attorney informed the defendant that the defendant was pleading guilty under the repeat offender statute. Leonard v. State, 297 Ga. App. 515, 677 S.E.2d 726 (2009). Trial court properly denied a defendant’s motion to withdraw a guilty plea to voluntary manslaughter. Pretermitting whether counsel’s performance was deficient, the defendant failed to establish a reasonable probability that the defendant would have insisted on a trial if the defendant had always known the defendant could be sentenced to serve 15 years instead of ten; furthermore, the defendant would have been tried for felony murder had the defendant gone to trial. Johnson v. State, 298 Ga. App. 197, 679 S.E.2d 763 (2009). Because the defendant failed to preserve an argument that the defendant’s guilty plea was voidable as a matter of law under O.C.G.A. § 13-3-20, and because 17-7-93 the transcript from the plea hearing showed on its face that the plea was entered knowingly, intelligently, and voluntarily, the trial court properly denied the defendant’s motion to withdraw the plea. Boykins v. State, 298 Ga. App. 654, 680 S.E.2d 665 (2009). Because a police officer was authorized to stop the defendant’s vehicle based on a suspicion that the defendant had illegally dumped trash, and because the defendant consented to a search of the vehicle, the items seized from the vehicle would not have been suppressed; accordingly, the defendant’s ineffective assistance claim failed, and the trial court properly denied the defendant’s motion to withdraw the defendant’s Alford plea. Bishop v. State, 299 Ga. App. 241, 682 S.E.2d 201 (2009). Trial court did not err in denying the defendant’s motion to withdraw the defendant’s guilty plea because the state met the state’s burden by showing from the record that the defendant was cognizant of the rights the defendant was waiving and of the possible consequences of the defendant’s plea, and the defendant confirmed that the defendant had read and fully understood the charges pending against the defendant and understood that by pleading guilty the defendant gave up the defendant’s right to trial by jury; the defendant understood that while the defendant’s attorney would make a sentence recommendation, the trial court could sentence the defendant up to the maximum permitted by law, and the defendant testified that no one used force, threats, or promises to make the defendant plead guilty against the defendant’s will, that the defendant was satisfied with the services of the defendant’s attorney, that the defendant’s decision to plead guilty was made freely and voluntarily, that the defendant committed the offenses, and that the facts outlined by the state were accurate. Lavendar v. State, 306 Ga. App. 257, 701 S.E.2d 892 (2010). Trial court properly denied the defendant’s motion to withdraw the defendant’s guilty pleas because the defendant failed to show that withdrawal of the defendant’s pleas was necessary to correct a manifest injustice, and the trial court determined that a factual basis existed for 535 Withdrawal of Pleas (Cont’d) the pleas pursuant to Ga. Unif. Super. Ct. R. 33.9 and that the defendant understood the nature of the charges to which the defendant was pleading pursuant to Ga. Unif. Super. Ct. R. 33.8(A); the district attorney did not misstate the law when the district attorney advised the defendant that a defendant in a case when the state was seeking the death penalty did not have an absolute right to withdraw the defendant’s guilty plea before judgment was pronounced. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011). Because the defendant declined the opportunity at a plea hearing to discuss any concerns with counsel’s representation, the defendant failed to demonstrate that counsel was ineffective; therefore, the trial court did not abuse the court’s discretion in denying the defendant’s motion to withdraw the defendant’s plea on that basis. Norwood v. State, 311 Ga. App. 815, 717 S.E.2d 316 (2011). Defendant’s contentions provided no basis for reversing the trial court’s denial of the motion to withdraw the guilty plea because the record authorized the trial court to reject the defendant’s claim that the defendant’s counsel’s performance was deficient and that there was a reasonable probability that, absent the deficiency, the defendant would have not pled guilty. The trial court expressly found that the defendant’s testimony as to counsel’s alleged promise regarding the sentence to be imposed lacked credibility and was contradicted by the testimony of defense counsel and the evidence of record. Davis v. State, 317 Ga. App. 157, 730 S.E.2d 30 (2012). Defendant had no right to withdraw the defendant’s guilty plea, because the defendant’s first appeal only invalidated a discrete provision of the sentence, expressly leaving all other provision intact, and the plea thereon ineligible for withdrawal in the instant action, and the out-of-term motion was untimely. Humphrey v. State, 299 Ga. 197, 787 S.E.2d 169 (2016). While the Georgia Court of Appeals has held that one’s right to withdraw a guilty plea before sentencing under the terms of 17-7-93 O.C.G.A. § 17-7-93(b) can never be waived, the Georgia Supreme Court is not bound by those decisions, and it hereby expressly overrules Thompson v. State, 462 S.E.2d 404 (1995) and Ware v. State, 196 S.E.2d 896 (1973). Blackwell v. State, 299 Ga. 122, 786 S.E.2d 669 (2016). Waiver or right to withdraw guilty plea. — Criminal defendant’s right under O.C.G.A. § 17-7-93(b) to withdraw a guilty plea prior to sentencing is a right that can be waived as there is no federal or state constitutional provision stating that a criminal defendant may withdraw a plea as a matter of right prior to sentence being pronounced; there is no express language in O.C.G.A. § 17-7-93(b) itself indicating that, although the right to withdraw a guilty plea before sentence is pronounced exists, the right cannot be waived; and there is no public policy prohibiting the waiver of that right as the waiver of the right to withdraw a guilty plea after entering the plea fosters the interests of the state and the defendant by allowing the parties to avoid the uncertainty of a jury trial. Blackwell v. State, 299 Ga. 122, 786 S.E.2d 669 (2016). Defendant’s motion to withdraw the defendant’s guilty plea before sentencing was properly denied because a criminal defendant’s right to withdraw a guilty plea prior to sentencing was a right that could be waived; and the defendant waived that right as the exchange between the defendant and the prosecutor at the defendant’s guilty plea hearing showed that the defendant understood that the defendant would not be allowed to withdraw the defendant’s guilty plea once it had been entered; and a later exchange with the trial court itself at the guilty plea hearing underscored the fact that the defendant understood and affirmatively agreed that the defendant would not be able to withdraw the defendant’s guilty plea once the plea had been entered. Blackwell v. State, 299 Ga. 122, 786 S.E.2d 669 (2016). Trial court erred in denying the defendant’s motion to withdraw the guilty plea because the language of the form allowing a defendant to change a plea was too imprecise and too vague to establish that the defendant made a voluntary, knowing, 536 and intelligent waiver of the right to withdraw the plea before a sentence was pronounced. Rice v. State, 354 Ga. App. 103, 840 S.E.2d 508 (2020). Overruling of motion to withdraw is not reversible error. — It is not reversible error to overrule the defendant’s motion to withdraw the defendant’s plea of guilty after sentencing. Sears v. State, 45 Ga. App. 344, 164 S.E. 458 (1932). Effect of withdrawal of sentence and postponement of pronouncement. — When the defendant initially enters a guilty plea and subsequently the judge orally pronounces a sentence, but on the defendant’s motion withdraws the sentence and postpones pronouncement, at which time the defendant moves to withdraw the defendant’s guilty plea and enter a plea of not guilty, it is error for the court to refuse to allow the defendant to do so. Clark v. State, 72 Ga. App. 603, 34 S.E.2d 608 (1945). Withdrawal may not be accomplished through motion for new trial. — Neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty. Welch v. State, 63 Ga. App. 277, 11 S.E.2d 42 (1940). When waiver of right to withdraw guilty plea valid. — Right of the defendant to withdraw the defendant’s plea of guilty and plead not guilty is effectively waived only when the waiver is wholly voluntary and comes from the defendant without any solicitation or coercion whatsoever from either the state or the court. Farmer v. State, 128 Ga. App. 416, 196 S.E.2d 893 (1973). Withdrawal of guilty plea when state seeks death penalty. — Guilty plea, voluntarily and knowingly entered in a capital felony case other than treason or aircraft hijacking, wherein the state seeks the death penalty, may not be withdrawn as a matter of right. Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980), cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). Defendant does not have the right in a case in which the state seeks the death penalty to withdraw a guilty plea voluntarily and knowingly entered. Browner v. 17-7-93 State, 257 Ga. 321, 357 S.E.2d 559 (1987). Consideration against the defendant of a withdrawn plea of guilty was prohibited by this section. Ward v. State, 123 Ga. App. 216, 180 S.E.2d 280 (1971). This section applied to nolo contendere pleas. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). Nolo contendere pleas stand on the same footing as a plea of guilty under this section. Marshall v. State, 128 Ga. App. 413, 197 S.E.2d 161 (1973). Nolo contendere plea may be withdrawn. — Defendant who has entered a plea of nolo contendere may as a matter of right withdraw the plea after an oral announcement of sentence but before sentence is properly pronounced, i.e., in writing. Wright v. State, 75 Ga. App. 764, 44 S.E.2d 569 (1947). Voluntary nolo contendere. — State met the state’s burden of showing that the trial court expressly found that the defendant understood the nature of the charges and consequences of entering a nolo contendere plea; that no promises, force, or threats were used to obtain the plea; and that the defendant knowingly, freely, and voluntarily entered the plea; moreover, to contradict the defendant’s claims, the state further presented evidence that prior to the plea, no form of coercion was imposed, and defense counsel expressly acquiesced to the sentence entered by the court with no objection from the defendant. Patel v. State, 283 Ga. App. 181, 641 S.E.2d 184 (2006). Withdrawal of nolo contendere plea properly denied. — Because the defendant’s appointed counsel conducted a sufficient investigation of the case to determine that the defendant had a viable defense and to advise the defendant to adhere to the nolo contendere plea the defendant entered, the trial court did not abuse the court’s discretion in denying the defendant’s motion to withdraw the plea. Hopkins v. State, 274 Ga. App. 872, 619 S.E.2d 368 (2005). Withdrawal after term of court when guilty plea entered. — Trial court properly held that the court lacked jurisdiction to entertain a defendant’s motion 537 Withdrawal of Pleas (Cont’d) to withdraw a guilty plea because the term of court at which the guilty plea was entered had expired; moreover, authority to modify sentences under O.C.G.A. § 17-10-1(f ) did not include power to vacate a conviction on which the sentence was based. Ellison v. State, 283 Ga. 461, 660 S.E.2d 373 (2008). Withdrawal of guilty plea not allowed. — Defendant could not withdraw the defendant’s guilty plea after defense counsel kept the defendant informed of plea negotiations and recommended that the defendant not go to trial, and the defendant’s verified acknowledgement of the plea hearing indicated that the defendant knowingly and voluntarily pled guilty. Weeks v. State, 260 Ga. App. 129, 578 S.E.2d 910 (2003). Trial court did not abuse the court’s discretion in denying the defendant’s post-sentencing motion to withdraw the defendant’s guilty plea to several offenses given that: (1) the record contradicted the defendant’s claim of coercion by showing that the defendant was fully informed of the charges and the sentence, that the defendant waived the defendant’s various trial rights and the right to remain silent, and that the defendant stated at the plea hearing that the defendant was acting voluntarily and was not coerced; (2) there was no support for the defendant’s alleged fear that defense counsel would not defend the case if the defendant pled not guilty; (3) the trial court did not abuse the court’s discretion in finding on the facts of the case that the recommendations of defendant’s counsel and defendant’s family to proceed with the guilty plea did not constitute coercion; and (4) contrary to the defendant’s ineffective assistance claim, in which the defendant asserted that defense counsel gave confusing advice about the sentence and failed to inform the defendant that the defendant could withdraw the plea before sentencing, the record supported the trial court’s findings that the defendant was well aware of the sentence which the trial court intended to impose and that defense counsel told the defendant of the opportunity to withdraw the plea before sentencing. Johnson v. 17-7-93 State, 260 Ga. App. 897, 581 S.E.2d 407 (2003). Denial of the defendant’s motion to withdraw the defendant’s guilty plea was affirmed on appeal when the defendant’s purported statements of the case and the facts were not supported by proper record citations, the defendant was cognizant of all the rights the defendant was waiving, along with the possible consequences of the defendant’s plea, and the defendant’s plea was knowing and voluntary. Colbert v. State, 264 Ga. App. 519, 591 S.E.2d 364 (2003). Trial court did not err in denying the defendant’s motion to withdraw the defendant’s guilty plea as the plea was entered knowingly, intelligently, or voluntarily; the defendant did not show that the plea was the result of ineffective assistance of counsel since the record showed that defense counsel fully advised the defendant in all aspects of the plea and no evidence existed to show that defense counsel was unprepared, unresponsive, or otherwise incompetent to represent the defendant. Payne v. State, 271 Ga. App. 619, 610 S.E.2d 572 (2005). Defendant’s motion to withdraw a guilty plea to possession of cocaine was properly denied because the record revealed that the defendant entered the plea freely and voluntarily with a full understanding of the nature of the charges, the consequences of the plea, and the rights that the defendant was relinquishing; the defendant replied cogently to the trial court’s inquiries during the guilty plea colloquy and made a reasoned decision to plead guilty, and the trial court’s failure to inform the defendant that the defendant was waiving the right to appeal the denial of the motion to suppress and the right to appeal any issue regarding the sufficiency of the evidence was not error because the trial court twice advised the defendant that, by pleading guilty, the defendant was giving up the right to any determination by a jury as to guilt or innocence. Covin v. State, 272 Ga. App. 65, 611 S.E.2d 729 (2005). Because the defendant’s guilty plea and waiver of counsel were both knowing and voluntary, and because the delay in the appeal was caused by the defendant, the 538 trial court properly denied the defendant’s motion to withdraw the plea. Smith v. State, 274 Ga. App. 568, 618 S.E.2d 182 (2005). Because defense counsel went over the voluntary manslaughter statute with the defendant and explained intent to the defendant, the defendant failed to show that counsel was ineffective; because the defendant’s plea was freely and voluntarily made, the trial court did not err in denying the defendant’s motion for a new trial. Howard v. State, 274 Ga. App. 861, 619 S.E.2d 363 (2005). Because the record showed that the defendant’s plea was freely, voluntarily, knowingly, and understandingly made and entered, the trial court did not err in finding the defendant guilty of armed robbery and possession of a firearm during the commission of a crime. Isaac v. State, 275 Ga. App. 262, 620 S.E.2d 182 (2005). Denial of a defendant’s motion to withdraw a guilty plea was not an abuse of discretion as the plea was made voluntarily and intelligently since the transcript revealed that the defendant: (1) understood the nature of the charges; (2) understood that by pleading guilty the defendant was waiving the defendant’s rights to a jury trial, to cross-examine witnesses, to testify or to present other evidence, and not to incriminate the defendant; (3) knew the possible sentence; (4) was not promised special treatment in exchange for the guilty plea; (5) was not coerced; and (6) admitted that the defendant was offering the plea freely and voluntarily with a full understanding of all of the facts; moreover, defense counsel fully informed the defendant of the potential consequences of entering a non-negotiated plea. Price v. State, 280 Ga. App. 869, 635 S.E.2d 236 (2006). Plea erroneously withdrawn absent formal defense motion. — Trial court erroneously dismissed an accusation charging the defendant with possession of alcohol by an underage person in violation of O.C.G.A. § 3-3-23(a)(2) based solely on the defendant’s completion of an alcohol education course, without providing notice to the state or the defendant, and without conducting a sentencing hearing as such impermissibly interfered with the 17-7-93 state’s right to prosecute and no defect on the face of the accusation existed; moreover, the trial court erred in withdrawing the defendant’s no contest plea absent a formal defense motion seeking the plea. State v. Carr, 287 Ga. App. 691, 652 S.E.2d 597 (2007). Inapplicable to pleas resulting in first offender status. — Trial court did not err in denying the defendant’s motion to withdraw the defendant’s guilty plea, since the state presented a sufficient factual basis for the crimes, the trial court iterated a sufficient allocution on the record, and sentenced the defendant pursuant to the agreed plea; furthermore, O.C.G.A. § 17-7-93 was inapplicable to pleas resulting in first offender status. Johanson v. State, 260 Ga. App. 181, 581 S.E.2d 564 (2003). Duress is question of fact for trial court to resolve. — With respect to the voluntariness of a guilty plea, duress is a question of fact for the trial court to resolve, and an appeals court will only reverse the trial court’s decision on this matter upon a showing of an abuse of discretion; a defendant was proven not to be under family pressure to plead guilty by the defendant’s statements that the defendant was under no pressure to plead guilty. Jones v. State, 268 Ga. App. 101, 601 S.E.2d 469 (2004). Motion to withdraw guilty plea could not be construed as habeas corpus petition as the motion was filed in the county in which the defendant was convicted, rather than against the warden in the county in which the defendant was incarcerated. Curry v. State, 274 Ga. App. 19, 616 S.E.2d 225 (2005). Trial court properly denied the defendant’s motion and amended motion to withdraw a guilty plea as the entry of the plea waived any right to assert a speedy trial issue on appeal. Moreover, given the fact that the defendant was represented by counsel at the time both pro se speedy trial motions were filed, and absent evidence that counsel filed or adopted the motions, no viable demand for a speedy trial existed in the record. Wallace v. State, 288 Ga. App. 480, 654 S.E.2d 442 (2007). Sentence proper when Alford plea withdrawn. — Defendant’s claim that 539 Withdrawal of Pleas (Cont’d) the defendant was improperly sentenced on additional counts because those counts were to be dismissed as part of a negotiated plea was disingenuous. While the defendant initially entered an Alford plea to two counts in exchange for the state’s agreement to drop the other charges, it was clear that the defendant changed the defendant’s mind; while looking for the original indictment at trial, the parties mentioned that the last time the parties saw the indictment was when the defendant entered the plea, and no one said that the defendant wanted to continue with that plea, and the defendant admitted at the first hearing on the defendant’s motion for a new trial that the defendant withdrew the guilty plea. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Failure to advise of effect on immigration status was not basis to set aside plea. — Denial of the defendant’s motion for an out-of-time appeal was proper because the defendant failed to show that the defendant’s guilty plea was not knowingly and voluntarily entered, and, inter alia, the record showed that the defendant understood the rights the defendant was waiving and the possible consequences of the plea; the effect of the plea on the defendant’s immigration status was a ‘‘collateral consequence’’ of the plea, and any failure to advise the defendant of this effect pursuant to O.C.G.A. § 17-7-93(c) was not a basis to set aside the plea. The state was not required to show that Ga. Unif. Super. Ct. R. 33.8 was recited to the letter to rebut an attack on a guilty plea. Smith v. State, 298 Ga. App. 458, 680 S.E.2d 516 (2009), aff ’d, 287 Ga. 391, 697 S.E.2d 177 (2010). 17-7-93 Although a trial court did not comply with O.C.G.A. § 17-7-93(c) and Ga. Unif. Super. Ct. R. 33.8(C)(2) when the court failed to advise a resident alien that the alien’s guilty but mentally ill plea could have an impact on immigration status, the immigration consequences were collateral consequences, the asserted fact that the defendant was not a citizen was not apparent from the record, there was no record evidence that the defendant was not aware of the potential immigration consequences from some other source and, therefore, the defendant did not show resulting harm or manifest injustice. Smith v. State, 287 Ga. 391, 697 S.E.2d 177 (2010), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019). Evidence of withdrawn guilty plea improperly admitted. — Defendant testified to having no knowledge of a syringe or methamphetamine found by police; the codefendant’s counsel impeached the defendant on cross-examination with evidence of the defendant’s withdrawn guilty plea to possession of methamphetamine. As evidence of a withdrawn guilty plea was inadmissible under O.C.G.A. § 17-7-93(b), and it could not be said that this evidence did not affect the verdict, the defendant was entitled to a new trial. Bertholf v. State, 298 Ga. App. 612, 680 S.E.2d 652 (2009). Merger waived when defendant voluntarily pled guilty. — Trial court did not err in denying the defendant’s request to merge the defendant’s convictions for statutory rape and fornication for the purpose of sentencing because the defendant waived the issue of whether the offenses should have been merged when the defendant knowingly and voluntarily pled guilty to each of the crimes. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012).