DAVIS v. STATE (2012)

While represented by counsel, Sylvester Davis entered a nonnegotiated¹ plea of guilty to the charges of aggravated battery and aggravated assault. Davis was sentenced to 20 years, with 15 years to be served in confinement and 5 years to be served on probation.² After sentencing, while represented by new counsel, Davis moved to withdraw the plea (“or ․ reduce his sentence”) on the ground that he had received ineffective assistance of counsel. Davis appeals from the trial court's denial of the motion. Finding no error, we affirm.

To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [Davis] must show counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel's errors, he would not have pleaded guilty. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. An appellate court upholds the trial court's factual findings unless they are clearly erroneous; a trial court's legal conclusions are reviewed de novo.3

1. Davis contends he was deprived of effective assistance of counsel in that counsel advised him that he should enter a nonnegotiated⁴ guilty plea so that a particular sentence would be imposed; but after he entered a guilty plea, the court imposed a different sentence.

Davis testified at the hearing on the motion to withdraw the plea that counsel had told him that he had spoken to the judge and that, if Davis entered an open-ended guilty plea, his sentence “was going to be like a fifteen do two, and perhaps time served on the sixteen months.” At the same hearing, Davis's mother testified that counsel told her that if Davis pled guilty, he would not have to serve “much more time.”

In contrast, counsel testified at the hearing on the motion to withdraw the plea that he told Davis that if he pled guilty, he did not know what sentence would be imposed. At the motion hearing, Davis's counsel denied that he told Davis that the judge had promised anything, denied that he told Davis or his mother “how long he was going to do, other than to explain to him the parole guidelines,” and denied that he told Davis's mother that by pleading guilty Davis would “do little or no time.”

Prior to that, the court announced at the guilty plea hearing, with Davis present and before he entered the plea, that the plea was “open-ended ․ which means that there is no agreement between the State and the defendant with respect to the sentence. The matter of sentence ․ is left to the sole discretion of the Court within the applicable sentencing ranges.” The court also informed Davis at the plea hearing that if convicted he faced a maximum sentence of 20 years on the aggravated battery charge (and that the court would be required to impose the maximum sentence if the state proved he had prior felonies). Davis replied that he understood, and stated that nobody had made any promises to him to get him to enter the plea. Davis also signed a “Petition for Open Ended Plea,” which showed that the charge of aggravated battery carried a maximum sentence of 20 years.

Davis's assertions regarding what his counsel told him as to what sentence would be imposed involve credibility issues, which only the trial court could resolve.⁵ Here, the court expressly found that Davis's testimony lacked credibility and was contradicted by the testimony of his counsel and the evidence of record. Thus, he has failed to demonstrate ineffective assistance of counsel based on counsel's alleged promise regarding the sentence to be imposed.⁶

2. Davis contends that he was deprived of effective assistance of counsel because his counsel misadvised him regarding how soon he would be eligible for parole. This contention is procedurally barred because he failed to raise it before the trial court.⁷

3. Davis contends that he was deprived of effective assistance of counsel because his counsel failed to inform him of or provide him with materials obtained through discovery regarding the victim's prior injuries, injuries inflicted in the charged incident, and the victim's recovery following the charged incident.

The state alleged that Davis had committed the offense of aggravated assault by assaulting a person with a metal pipe and slamming his head into the pavement; it further alleged that Davis had committed the offense of aggravated battery by rendering members of the person's body useless. Davis posits that at the plea hearing the state emphasized the extent of the victim's injuries, stating that the victim “was paralyzed from the neck down”; and, if counsel had provided him with the discovery materials showing the victim's injuries were not as severe as represented, he would not have entered an open-ended guilty plea and would have instead opted to go to trial.

But his counsel testified that he had, prior to the plea hearing, reviewed with Davis all of the evidence obtained through discovery, including the medical evidence, and showed the materials to him. His counsel testified that he and Davis had agreed that their strategy was to show that Davis was remorseful and would make restitution to the victim; they chose not “to attack [the victim] in any way.” Notably, the judge stated at the hearing on the motion to withdraw the plea that: Davis had admitted at the plea hearing that it was “a fairly significant assault”; his counsel had pointed out at the plea hearing that the victim's condition had improved significantly, and she “took [counsel's] word for that, that the victim ․ had dramatically improved” and had considered that point; and the judge added that she had seen the victim in the courtroom and observed that he was “walking around” and clearly was not paralyzed.

The record authorized the trial court to reject Davis's claim that his counsel's performance was deficient and that there was a reasonable probability that, absent the deficiency, he would have not pled guilty.⁸ Therefore, Davis's contentions provide no basis for reversing the trial court's denial of the motion to withdraw the guilty plea.⁹

Judgment affirmed.

PHIPPS, Presiding Judge.

ELLINGTON, C.J., and DILLARD, J., concur.