The Georgia Court of Appeals reversed the denial of a defendant’s motion to withdraw his guilty plea to child molestation charges finding that his appellate counsel was ineffective for failing to make a proper record in the trial court.
In Bradshaw v. State, the defendant entered a non-negotiated plea to the offenses of aggravated child molestation, child molestation, and related charges. He was sentenced to life in prison.
Shortly thereafter, the defendant filed a motion to withdraw his plea. One of his contentions was ineffective assistance of counsel and his concern was that his attorney failed to investigate whether the Sheriff’s office improperly eavesdropped on jails calls that he had with his attorney. After filing the motion to withdraw the plea, he sent a letter to the clerk requesting information concerning whether he was one of the inmates whose attorney-client privilege had been violated.
However, in handling the defendant’s motion to withdraw his plea, his appellate counsel never investigated the issue of the alleged corruption with the sheriff’s office and he failed to introduce any evidence into the record concerning the possibility that officers listened in on jails calls between him and his attorney.
The trial court denied the defendant’s motion to withdraw his plea but did agree to reduce his sentence to 25 years imprisonment followed by life on probation.
On appeal, the defendant argued that his first appellate counsel, who handled the motion to withdraw the plea, provided ineffective assistance for failing to present evidence at the hearing whether officers did, in fact, listen to phone calls between him and his attorney prior to his guilty plea. Moreover, he contended that if this did occur, the attorney was also ineffective for failing to create a record as to how this unlawful eavesdropping may have affected the defendant’s case.
The State conceded that the defendant’s case was one of the ones affected by the Worth County Sheriff’s actions of eavesdropping on inmates’ jail calls with their attorneys. However, the Court of Appeals noted that it is not clear how much of this information was known by the attorney handling the case at the time. The Court did find though that the defendant’s first appellate counsel failed to investigate or create a record that could have established whether the defendant’s calls were unlawfully recorded and if those recordings had an effect on the prosecution of the case or the plea negotiations.
The Court concluded that due to the unusual circumstances of this case, the appropriate remedy would be to vacate the denial of the defendant’s motion and remand the case back to the trial court so that a record can be made as to whether the plea should be withdrawn based on ineffective assistance of counsel. Following this evidentiary hearing, if the motion is still denied, the defendant would then be permitted to appeal once again.