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In the Supreme Court of Georgia

Decided: March 7, 2023

S23A0326. HOOD v. THE STATE.

 LAGRUA, Justice.

Appellant Larry Hood challenges the superior court’s order 

denying his motion to withdraw his guilty plea to malice murder and 

other crimes in connection with the death of Angela Ritter Davis. 

Hood claims that his plea was not knowing, intelligent, and 

voluntary because his plea counsel made an affirmative 

misrepresentation about the collateral consequences of his plea, i.e., 

his parole eligibility. For the reasons set forth below, we affirm the 

superior court’s denial of Hood’s motion. However, because the 

superior court committed sentencing errors, we vacate two of Hood’s 

convictions and remand for resentencing.

The record shows that, on November 2, 2020, a Decatur County 

grand jury indicted Hood for malice murder, felony murder, 
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aggravated assault, kidnapping, false imprisonment, making a false 

statement, possession of a controlled substance in Schedule I, and 

false report of a crime. Among other things, the indictment charged 

Hood with malice murder for “caus[ing] the death of . . . Davis . . . by 

striking her in the head with a pipe,” and it charged Hood with 

aggravated assault for “mak[ing] an assault upon . . . Davis with 

intent to murder by striking [her] in the head with a pipe.”

On February 1, 2022, the superior court held a plea hearing 

during which Hood entered a negotiated guilty plea to Count 1

(malice murder), Count 3 (aggravated assault), Count 6 (making a 

false statement), and Count 7 (possession of a controlled substance

in Schedule I). In exchange, the State agreed to nolle pros the 

remaining charges and recommend a total sentence of life with the 

possibility of parole, plus 20 years.

At the plea hearing, the State represented that the factual 

basis for the plea was that Hood beat Davis, his ex-girlfriend, to 

death with a pipe because she was dating someone else. Davis’s body 

was discovered in a wooded area with blunt impact injuries to the 
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head, including facial and oral contusions, multiple lacerations of 

the scalp, and a prominent circular skull fracture with radiating 

linear fractures. The blood of Davis and Hood was discovered on a 

pipe that was located near Davis’s body. Hood stipulated to the 

factual basis provided by the State, but he provided some additional 

details, e.g., that Davis hit Hood with the pipe and injured him, and 

the State acknowledged this occurred.

Before the plea hearing, Hood and his plea counsel completed 

and signed a 2-page form containing 32 questions about Hood’s 

constitutional and other legal rights. By signing this form, Hood 

acknowledged that he understood that the minimum sentence for 

malice murder was “life” and the maximum sentence was “life 

w[ith]o[ut] parole.” Hood and his plea counsel also signed a two-page 

form entitled “Plea and Sentence Recommendation,” which stated 

the State was recommending the following sentence: (a) life with the 

possibility of parole on malice murder (Count 1); (b) 20 years to serve 

on aggravated assault (Count 3) to be served consecutive to Count 

1; (c) 5 years to serve on making a false statement (Count 6) to be 
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served consecutive to Count 1 and concurrent with Count 3; and (d) 

3 years to serve on possession of a controlled substance in Schedule 

I (Count 7) to be served consecutive to Count 1 and concurrent with 

Count 3.

During his colloquy with the superior court, Hood confirmed 

that he had signed the “32-question plea transcript form” and that 

he understood his constitutional rights and had no questions about 

them. Hood also confirmed that his plea counsel had discussed 

parole eligibility with him, and he had no questions about it. After 

finding that there was a factual basis to believe the crime was 

committed as alleged and that Hood made a knowing, intelligent, 

and voluntary waiver of his constitutional rights, the superior court

accepted Hood’s guilty plea. The superior court then orally 

sentenced Hood consistent with the recommendation on the “Plea 

and Sentence Recommendation” form.

Two months later (and in the same term of court), Hood’s plea 

counsel filed a timely motion to withdraw guilty plea. Hood was 

appointed new counsel, and on September 6, 2022, the superior court
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held an evidentiary hearing on the motion. At the hearing, Hood 

testified:

[My plea counsel] told me that a life sentence was 14

years. And if I went through about seven years, I’d parole 

out with good behavior. I signed a plea under the 

impression that a life sentence was 14 years. I got to 

Jackson State Prison and they tell me a life sentence was 

30 [years].[1]

Hood also stated that his plea counsel’s assistant and investigator 

told him “that a life sentence was 14 years” and that “everything 

was self-defense and that [Hood] wouldn’t do but seven [years] and 

[he would] go home.” 

Hood’s plea counsel testified that she told Hood that he was not 

eligible for parole until after he had served 30 years in prison. She 

further testified:

I remember having this discussion with Mr. Hood on 

numerous times because he kept saying he was 49 and he 

was going to be 79 when he got out and his parents would 

 1 OCGA § 17-10-6.1 (c) (1) provides:

Except as otherwise provided in subsection (c) of Code Section 42-

9-39, for a first conviction of a serious violent felony in which the 

accused has been sentenced to life imprisonment, that person shall 

not be eligible for any form of parole or early release administered 

by the State Board of Pardons and Paroles until that person has 

served a minimum of 30 years in prison.
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be deceased. And this was a very big deal to him 

considering the 30-year mark and that’s why I know that 

I went over the 30 years with him.

Hood argued that his guilty plea should be withdrawn because he 

did not understand that a life sentence meant he was not eligible for 

parole until after he had served 30 years and there was “no written 

form . . . that specifically says that he was told that life will be 30

years.” 

At the conclusion of the hearing, the superior court orally 

denied Hood’s motion to withdraw. On October 6, the superior court

issued its order denying the motion, determining that plea counsel’s 

testimony was more credible than Hood’s testimony and that Hood 

failed to show that his plea counsel’s performance was deficient.

1. Hood contends the trial court abused its discretion by 

denying his motion to withdraw his guilty plea. This claim has no 

merit.

After sentencing, a defendant may withdraw his guilty plea 

only to correct a manifest injustice. See McClain v. State, 311 Ga. 

514, 515 (858 SE2d 501) (2021); Uniform Superior Court Rule 33.12 
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(B) (“In the absence of a showing that withdrawal is necessary to 

correct a manifest injustice, a defendant may not withdraw a plea of 

guilty or nolo contendere as a matter of right once sentence has been 

pronounced by the judge.”).

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.

Powell v. State, 309 Ga. 523, 524 (1) (847 SE2d 338) (2020).

There is no constitutional requirement that a defendant 

be informed of his parole eligibility prior to entering a 

guilty plea for a guilty plea to be voluntary. Should, 

however, counsel make an affirmative misrepresentation 

about the collateral consequences of a plea, such as parole 

eligibility, the misrepresentation may form the basis of an 

ineffective assistance of counsel claim. 

Crowder v. State, 288 Ga. 739, 739 (707 SE2d 78) (2011) (citations 

omitted). To prevail on his claim, Hood “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 SE2d 178) (2022) (citing to Strickland v. 
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Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) 

(1984)). To meet the first prong of the Strickland test, Hood “must 

overcome the strong presumption that counsel’s performance fell 

within a wide range of reasonable professional conduct, and that 

counsel’s decisions were made in the exercise of reasonable 

professional judgment.” Wright, 314 Ga. at 357 (citation and 

punctuation omitted). To meet the second prong of the Strickland

test in the guilty plea context, Hood “must demonstrate that there 

is a reasonable probability that, but for counsel’s errors, he would 

not have pleaded guilty and would have insisted on going to trial.” 

Id. (citation and punctuation omitted). “If an appellant fails to meet 

his or her burden of proving either prong of the Strickland test, the 

reviewing court does not have to examine the other prong.” Collins 

v. State, 312 Ga. 727, 744 (8) (864 SE2d 85) (2021) (citation and 

punctuation omitted). “This Court accepts a superior court’s factual 

findings and credibility determinations on an ineffectiveness claim 

unless they are clearly erroneous, but we apply legal principles to 

the facts de novo.” Powell, 309 Ga. at 526-527 (2). 
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In this case, the superior court found that plea counsel’s 

testimony that she provided Hood with “informed legal advice 

regarding the consequences of his decision to plead guilty” was 

“credible” and that plea counsel’s testimony “countered” the 

testimony of Hood. The superior court’s credibility findings, which it 

was entitled to make, were not clearly erroneous. See Powell, 309 

Ga. at 525 (1) (“Where the evidence at issue is in conflict, the 

credibility of witnesses is for the [superior] court to determine.”).

The superior court then concluded that Hood failed to show that his 

plea counsel’s performance was constitutionally deficient. Because 

the record supports the superior court’s findings, the court did not 

abuse its discretion in denying Hood’s motion to withdraw his guilty 

plea. See Wright, 314 Ga. at 359.

2. At sentencing, the superior court sentenced Hood on both the 

malice murder count and the aggravated assault count. That was 

error. See Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344) (2020) 

(“When there is no evidence to suggest the occurrence of an 

aggravated assault independent of the act which caused the victim’s 
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death . . . a jury’s guilty verdict on the aggravated assault merges as 

a matter of fact with the malice murder verdict for sentencing 

purposes.” (citation and punctuation omitted)). Hood does not raise 

this error. But “an exercise of our discretion on direct appeal to 

correct a merger error that harms a defendant (but of which he has 

not complained) may avoid unnecessary habeas proceedings and 

thereby promotes judicial economy.” Dixon v. State, 302 Ga. 691, 697 

(4) (808 SE2d 696) (2017). Accordingly, we vacate Hood’s conviction 

for aggravated assault (Count 3).

3. Also at sentencing, during the superior court’s oral 

pronouncement of Hood’s sentence, the court sentenced Hood to 

serve three years in prison on the possession of a controlled 

substance in Schedule I count (Count 7). However, Hood’s written 

sentence reflects that he was sentenced to serve seven years in 

prison on Count 7. But the maximum sentence for possession of a 

controlled substance in Schedule I, under the circumstances of this 

case, is three years. See OCGA § 16-13-30 (c) (1). Although this error 

has not been raised by Hood, we vacate Hood’s void sentence on 
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Count 7 and remand the case for resentencing within the statutory 

parameters. See Barber v. State, 314 Ga. 759, 766 (3) (879 SE2d 428) 

(2022) (“[A] sentence is void if the court imposes punishment that 

the law does not allow.” (citation and punctuation omitted)); 

Goodman v. State, 313 Ga. 762, 770 (2) (c) (873 SE2d 150) (2022) 

(“[W]e often do exercise our discretion sua sponte to vacate a 

sentence for the benefit of defendants if we notice that it is void.”).

Judgment affirmed in part and vacated in part, and case 

remanded. All the Justices concur.