TRUONG v. STATE (2026)

Anthony Long Truong appeals the trial court's denial of his motion to withdraw his guilty pleas to two counts of aggravated stalking. He argues that the attorney who represented him when he entered his plea was ineffective and that he did not enter the plea knowingly and voluntarily because he was not given credit for time served. We hold that the trial court did not abuse his discretion in denying the motion to withdraw. So we affirm.

1. Background

The instant case involved the prosecution of Truong in Jackson County for two counts of aggravated stalking. Truong was also facing charges in separate cases in Jackson and Banks Counties: in Jackson County, he had been charged in one case with committing unlawful acts of violence in a penal institution; and in Banks County he had been charged in two cases with committing unlawful acts of violence in a penal institution and in one case with ten different counts, including a felony drug offense, fleeing or attempting to elude law enforcement officers, aggressive driving, and reckless driving.

At a hearing in the Jackson County unlawful-acts-of-violence-in-a-penal-institution case, Truong waived any challenges to venue and entered guilty pleas to the two counts of aggravated stalking at issue in this appeal; the two Banks County unlawful-acts-of-violence-in-a-penal-institution cases; and to fleeing or attempting to elude, aggressive driving, and reckless driving in the 10-count Banks County case. (In its appellate brief, the state asserts that it nolle prossed the other charges as part of the plea agreement. It does not support this assertion with citation to the record, but Truong does not argue otherwise.)

In the instant aggravated stalking case, Truong was sentenced to ten years, with two years to be served in confinement. The sentence was to be served concurrently with the sentences in the other cases.

Truong moved to withdraw his guilty pleas to the aggravated stalking charges. The trial court denied the motion, and Truong filed this appeal.

2. Ineffective assistance of counsel

Truong argues that the trial court erred in denying his motion to withdraw because his plea counsel was ineffective for having him plead guilty to aggravated stalking as there was insufficient evidence to support those charges. We reject this argument because the record shows that the trial court did not abuse his discretion in determining that there was a factual basis for the pleas. See Bradley v. State, 305 Ga. 857, 859(2), 828 S.E.2d 322 (2019) (“The court's decision on a motion to withdraw a guilty plea will not be disturbed absent an obvious abuse of discretion.”) (citation modified).

“After sentencing, a defendant may withdraw his guilty plea only to correct a manifest injustice. ․ [W]ithdrawal 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.” Hood v. State, 315 Ga. 809, 812(1), 884 S.E.2d 901 (2023) (citation modified). To prevail on his claim of ineffective assistance of counsel, Truong “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 S.E.2d 178 (2022) (citing Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Truong argues that counsel was ineffective because she had Truong plead guilty to aggravated stalking when there was no evidence of a pattern of harassing and intimidating behavior. See State v. Burke, 287 Ga. 377, 379, 695 S.E.2d 649 (2010) (“The harassing and intimidating conduct [required to prove aggravated stalking under OCGA § 16-5-91] must be established by, among other things, a pattern of harassing and intimidating behavior.”) (citation modified). But as detailed below, there was a factual basis for the pleas. So Truong has not shown that counsel performed deficiently.

At the plea hearing, the prosecutor announced the factual basis for the first count of aggravated stalking as follows:

on or about the 18th day of March, 2022, in Jackson County, the defendant, in violation of a family violence protective order issued by the Superior Court of Hall County, Case Number 22CV358, did unlawfully contact [the victim, who is the mother of Truong's children] at or about [an address], by telephone, without the consent of said victim, for the purpose of harassing and intimidating said victim.

When the court asked Truong whether he had any questions about the allegations, he responded that he “never said anything intimidating,” and that he was “just calling on behalf of [his] kids.” Plea counsel explained “that would be the dispute at trial,” but that “there were multiple contacts, including a contact at the home,” and that “the sum total of the evidence is there's enough for him to be found guilty.”

The prosecutor announced the factual basis for the second count of aggravated stalking as follows:

[o]n the 19th day of March, 2022, in Jackson County, in violation of a family violence protective order issued by the Superior Court of Hall County, Case Number 22CV358, did unlawfully ․ put [the victim] under surveillance at [an address] by entering the property and approaching her residence without consent of said victim, for the purpose of harassing and intimidating said victim.

When the court asked Truong if he had any questions, he responded, “No. It's the same deal as the first one.”

Uniform Superior Court Rule 33.9 provides that, “Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.” This is so that “a reviewing court may determine whether an abuse of discretion occurred. But there is no requirement that the elements of the crime be proven beyond a reasonable doubt. Rather, the court must satisfy itself subjectively that the pleader knows both what he has done and that those acts constitute the crime with which he is charged.” Swantner v. State, 244 Ga. App. 372, 373(1), 535 S.E.2d 343 (2000) (citation modified).

“The requirement in [Uniform Superior Court Rule] 33.9 that the trial court be satisfied there is a factual basis for the plea was met by the trial court's questions to [Truong] regarding the accuracy of the charges, which were read into the record, and [plea] counsel's statement that [‘there were multiple contacts, including a contact at the home.’]” Brown v. State, 280 Ga. 658, 659(2), 631 S.E.2d 687 (2006).

Contrary to Truong's argument on appeal, the state was not required to submit evidence sufficient to support the convictions for aggravated stalking. Swantner, 244 Ga. App. at 373(1), 535 S.E.2d 343. “The fact that [Truong] is attempting to challenge the sufficiency of the evidence by couching the challenge in terms of an ineffective assistance claim does not change this rule.” Prado v. State, 360 Ga. App. 882, 885, 862 S.E.2d 343 (2021). The trial court did not abuse his discretion in denying the motion to withdraw on this ground.

3. Credit for time served

Truong argues that he did not knowingly and voluntarily enter his plea because he entered it under the belief that he would receive credit for all his time in custody. We hold that the trial court did not abuse his discretion in denying the motion to withdraw on this ground.

As part of Truong's sentence, the trial court ordered that Truong was “to receive credit for time served in custody ․ as determined by the custodian,” in accordance with the parties’ negotiations and with Truong's understanding, as demonstrated by the plea hearing transcript. Truong claims, without any details whatsoever, that he has not received proper credit, which, he argues, is a manifest injustice invalidating the plea.

The trial court rejected this claim on the grounds that the court “did not specify a certain date on the sentence, the credit for time served date was calculated by the [c]ustodian, and [d]efendant signed the sentence himself.” “[T]he trial court's determination based on the record as a whole that [Truong] entered his plea with a sufficient awareness of the likely consequences was not clearly erroneous. Consequently, the trial court did not abuse its discretion in denying [Truong's] motion to withdraw his guilty pleas” on this ground. Bradley, 305 Ga. at 863(2), 828 S.E.2d 322. See also Kellum v. State, 367 Ga. App. 742, 744-45(2), 888 S.E.2d 315 (2023) (“The amount of credit for time served is to be computed by the sentence custodian, not the trial court, and a defendant aggrieved by such calculations generally must seek relief against the Department of Corrections.”).

Judgment affirmed.

McFadden, Presiding Judge.

Watkins and Padgett, JJ., concur.