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BESS v. THE STATE (two cases).
A98A1134.
A98A1135.
SMITH, Judge.
Judgment affirmed. Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.
Armed robbery. Ware Superior Court. Before Judge Blount.
Appellants Renaldo and Jarrin Bess were charged by indictment with armed robbery. Each entered into a negotiated plea agreement. In accordance with the terms of the plea agreements, the trial court entered a 20-year sentence with respect to Renaldo Bess, with 15 years to be served in confinement and the remainder on probation. The court sentenced Jarrin Bess to 15 years, with ten to be served in confinement and five on probation.
Appellants challenge the acceptance of their guilty pleas without assurance by the trial court that they were advised of the minimum mandatory sentence imposed by OCGA 17-10-6.1 (b), or that they understood the requirement that any sentence, except one of life imprisonment, life without parole, or death, imposed on a conviction of armed robbery be served in its entirety, without probation or parole. OCGA 17-10-6.1 (c) (3). They also contend that the trial court erroneously failed to find on the record a factual basis for their pleas. We find no error and affirm.
1. A trial court is required to advise defendants of any mandatory minimum sentence. See Uniform Superior Court Rule 33.8 (C) (3). Here, the mandatory minimum sentence was ten years to be served in confinement without probation or parole. OCGA 17-10-6.1 (b). But under the facts of this case, the trial court's failure to advise appellants of the mandatory ten-year requirement does not reach the level of "manifest injustice" required for successfully attacking entry of a plea after sentence has been pronounced. See State v. Evans, 265 Ga. 332, 336 (454 SE2d 468) (1995). Because these sentences were negotiated, whether appellants knew about the ten-year mandatory minimum sentence is irrelevant, as each sentence as actually imposed obviously exceeded the minimum ten-year sentence imposed by OCGA 17-10-6.1 (b). Reversal on this ground is not warranted.
In addition, the court's failure to advise appellants of the "no parole" policy codified at OCGA 17-10-6.1 (c) (3) does not mandate reversal. Although criminal defendants are entitled to be informed of the consequences of their pleas, "[p]arole eligibility is not so much a direct consequence of a trial court's acceptance of a bargained plea of guilty, as it is a collateral legislative consequence of the defendant's own decision to accept a certain sentence in exchange for his guilty plea to a specified crime. Parole eligibility may be a factor which the defendant should consider in bargaining for a recommended sentence, but the trial court is entitled to presume that a defendant has apprised himself of such collateral consequences before agreeing to accept a certain sentence in exchange for his guilty plea." (Emphasis omitted.) Smith v. State, 174 Ga. App. 238, 240 (329 SE2d 507) (1985) (physical precedent only). 1 Appellants entered negotiated guilty pleas and received the sentences for which they bargained. As in Smith, from appellants' "point of view, the consequence of receiving the sentence to which [they] agreed can hardly be deemed unanticipated or adverse." (Emphasis omitted.) Id. at 240. This case is distinguished from Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998), in which we concluded that trial counsel rendered ineffective assistance of counsel by failing to advise appellant of the effect of OCGA 17-10-6.1 on his guilty plea. Hutchison distinguished Smith, supra, on the ground that no allegation was made in Smith that trial counsel rendered ineffective assistance. Id. at 144. Here, too, no such allegation is made, and Smith is controlling.
2. Appellants also contend that the trial court erroneously failed to determine whether a factual basis existed for their pleas as required by Uniform Superior Court Rule 33.9. We do not agree. During the plea hearing, the trial Court concluded that a factual basis for the pleas existed, based on its recollection of the facts introduced during appellants' bond hearing. The transcript of the bond hearing includes testimony that appellants entered a Wendy's restaurant, forced the victim to lie on the floor and sing at gunpoint, and took money from the store.
The trial court was authorized to consider evidence outside of that presented at the plea hearing when determining whether a factual basis for the pleas existed. See Evans, supra at 335 (trial court may learn factual basis from material contained in remainder of record if plea hearing record shows portion of record relied on and relevant portion is part of record on appeal). Based on the evidence presented at the bond hearing, the court was provided with sufficient information from which to determine that a factual basis existed for appellants' guilty pleas to the charge of armed robbery. See OCGA 16-8-41 (a).
ON MOTION FOR RECONSIDERATION.
Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.
Notes
1  Although Smith is physical precedent only because one judge on a three-judge panel concurred specially, the special concurrence supports the majority proposition in Smith that parole is a collateral consequence of a guilty plea. Id. at 242.
Jarrin Bess, pro se.
Renaldo W. Bess, pro se.
James A. Yancey, Jr., for appellants.
DECIDED SEPTEMBER 8, 1998 -- RECONSIDERATION DENIED NOVEMBER 20, 1998.
Thursday May 21 03:14 EDT


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