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Court of Appeals of Georgia.


No. A13A1896.

Decided: February 27, 2014

Matthew W. Carlton, for Mark Bay Jones. James David McDade, for The State.

Mark Bay Jones pled guilty to one count of theft by deception, OCGA § 16–8–3, after he was indicted in 2011 for taking $2,611.29 from an elderly victim in a roofing scheme. He was sentenced to ten years, with five years to be served in custody. Jones now appeals from the denial of his motion to withdraw his guilty plea and contends that his five-year prison sentence was grossly disproportionate to the crime committed and that his guilty plea was not knowingly entered. Following our review, we affirm.

1. With respect to whether a sentence is “grossly disproportionate,” courts “must begin by comparing the gravity of the offense and the severity of the sentence.” (Citation omitted.) Adams v. State, 288 Ga. 695, 701(4), 707 S.E.2d 359 (2011). If this threshold comparison does not create an inference of gross disproportionality, the Eighth Amendment analysis extends no further. Id. “It is the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Punctuation and footnote omitted.) Bragg v. State, 296 Ga.App. 422, 424, 674 S.E.2d 650 (2009). If the sentence falls within the statutory range of punishment set by the legislature, the presumption is that the sentence does not violate the Eighth Amendment, and the “presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.” (Citation omitted.) Cuvas v. State, 306 Ga.App. 679, 683(2), 703 S.E.2d 116 (2010).

Here, Jones' sentence is within the statutory limits set by OCGA § 16–8–12,1 and thus his sentence of ten years, with five years probated, is not so disproportionate as to shock the conscience.2 We therefore find no merit in this claim of error. See McLeod v. State, 251 Ga.App. 371, 373(2), 554 S.E.2d 507 (2001).

2. We also find no merit to Jones' contention that his guilty plea was not knowingly entered. He contends that, rather than a standard guilty plea, he had attempted to enter a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) under which “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Jones maintains that the trial court was required to “go through the Alford ․ questions” and it because it did not his plea was not knowingly entered. We do not agree.

A 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. When the validity of a guilty plea is challenged, the [S]tate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily. The State must show that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. After a defendant's sentence has been pronounced, his guilty plea may be withdrawn only to correct a manifest injustice. The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

(Citations and punctuation omitted.) Williams v. State, 318 Ga.App. 744, 745, 734 S.E.2d 745 (2012).

Here, the record clearly demonstrates that at the guilty-plea hearing, Jones was informed that he had agreed to enter a “nonnegotiated or a blind plea ․ [and][w]hat that means is there are no recommendations or no agreement that the State has made with your attorney to present to the Judge today.” Jones agreed and it was further explained that “the previous plea agreement that was given to your attorney in your case is not on the table anymore and will not be presented to the Judge.” Jones acknowledged that he understood that as well. Jones further acknowledged that he understood the charges, and that the maximum sentence he could receive was ten years incarceration, that upon his entry of a guilty plea he would be waiving the right to a trial by jury and other attendant rights, and that he had not been forced to plead guilty. Jones further acknowledged that he was pleading freely and voluntarily and stated that he was guilty of the crime charged and that he had deceived the victim.

Although sentencing documents suggest an Alford plea, the transcript reflects that Jones chose to enter a guilty plea. In any event, pretermitting whether the trial court erred in failing to question Jones to establish if he wanted to enter an Alford plea, the record demonstrates that Jones was cognizant of all of the rights he was waiving and the legal consequences of his plea. See Bell v. State, 294 Ga. 5, 7–8(1), 749 S.E.2d 672 (2013) (Bell claimed at the hearing to withdraw his plea that he was innocent and pled guilty because he felt that he did not have any other choice, but even “[a]ssuming Bell was correct that he entered an Alford plea, the record shows that he was aware of the evidence against him, the availability of a justification defense, and the maximum and minimum sentences he could receive if convicted at a trial and that he made a decision to avoid the possibility of life without parole by pleading guilty.”) There are no additional requirements under Alford regarding the apprisal of the consequences of a guilty plea. See McKiernan v. State, 288 Ga. 140, 142–143(2), 702 S.E.2d 170 (2010) (even when considered under Alford, trial court did not commit a manifest injustice in accepting the guilty plea despite defendant's contention that the shooting of his wife was an accident.) Thus, in these circumstances we discern no manifest injustice demanding the grant of Jones' motion to withdraw his guilty plea.

Judgment affirmed.

BARNES, Presiding Judge.

MILLER and RAY, JJ., concur.

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