by David M. Reutter
The Supreme Court of Georgia held a habeas corpus petitioner was denied the effective assistance of counsel due to counsel’s failure to advise him of his absolute statutory right to withdraw his guilty plea prior to sentencing.
Morocco Jacobi Wilkey was indicted in 2014 for possession of methamphetamine with intent to distribute. He went to trial in April 2015, and on the third day of trial, while his co-defendant was testifying for the State, Wilkey elected to enter a guilty plea.
At his April 28, 2015, sentencing hearing, but before his sentencing, Wilkey’s plea counsel informed the court that, since trial, it was learned that the co-defendant had an outstanding felony warrant for the sale of methamphetamine since “August of last year.” Despite the fact the co-defendant sat in the courtroom multiple times for trial, “the warrant was not executed, nor was that information turned over to the defense at trial and that her testimony was that she was just a user, that she didn’t sell drugs, and that’s why the drugs [at issue] were not hers.”
Counsel also stated, and no one disagreed, that Wilkey had 30 days to file a motion to withdraw his plea.
The court admonished that the failure to execute the warrant was “unprofessional” and a violation of a law enforcement officer’s duty to execute it. The court said it would consider the matter when it came up, but it proceeded to sentence Wilkey to 15 years in prison and 15 years on probation.
Wilkey filed a motion to withdraw his plea within 30 days, but it was rejected as untimely because it was not filed within the same term of the court as the sentence was entered. Brooks v. State, 804 S.E.2d 1 (Ga. 2017). Wilkey filed a petition for habeas corpus on June 21, 2018.
That petition raised three grounds: (1) the guilty plea was involuntarily entered due to the failure to disclose the co-defendant’s open arrest warrant prior to the plea, (2) trial court’s failure to properly inform him of the deadline to file motion to withdraw plea, and (3) counsel was ineffective for failing to inform him of the right to withdraw the plea for any reason prior to sentencing and improperly advising him on the deadline to file such a motion.
The habeas court granted the petition after holding an evidentiary hearing, finding all claims were well founded. Warden Dennis Nelson appealed that result on May 22, 2019. He challenged the habeas court’s determination that Wilkey received ineffective assistance of counsel.
In its June 29, 2020, order, the Georgia Supreme Court said “a defendant’s right to effective assistance of counsel regarding his guilty plea includes the right to be advised about his absolute right to withdraw his guilty plea prior to sentencing [under OCGA § 17-7-93(b)] and whether he should peruse such a remedy.”
The Court noted that at the sentencing hearing plea counsel said she was aware of new information “that certainly would have had an effect” on her advice to her client. Yet, she allowed sentencing to proceed. The Court found this substantially affected Wilkey’s rights.
Prior to sentencing, Wilkey had a statutory right to withdraw his guilty plea for any reason. After the court imposed the sentence, he could withdraw the plea “only to correct a manifest injustice. Graham v. State, 797 S.E.2d 459 (Ga. 2017). This imposed “an unnecessary burden on Wilkey,” the Court stated. “No reasonable lawyer would allow sentencing to go forward under these circumstances,” the Court concluded.
Nelson conceded plea counsel provided Wilkey with “bad advice about plea withdrawal options.” Nonetheless, Nelson argued that performance was not prejudicial because the trial was essentially over, and Wilkey could not show he would have continued with the trial. The Court rejected that position. It found the record supports the habeas court’s “factual and creditability findings” that “Wilkey would have withdrawn his guilty plea prior to sentencing and continued with trial.” Finding this issue dispositive, the Court did not address other issues in the habeas petition.
Accordingly, the Court affirmed the habeas court’s order. See: Nelson v. Wilkey, 2020 Ga. LEXIS 468 (2020).