FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten days

of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 5, 2019

In the Court of Appeals of Georgia

A18A1859. THOMPKINS v. THE STATE.

MERCIER, Judge.

Following a negotiated plea, Rickey Ray Thompkins pled guilty to aggravated

stalking. Pursuant to the negotiated plea, the remaining charges, burglary in the first

degree and arson in the first degree, were nolle prossed. Thompkins was sentenced

to ten years, to serve five years and the remainder on probation. Thompkins then filed

a motion to withdraw his guilty plea, which the trial court denied following a hearing.

He appeals, claiming that he received ineffective assistance of counsel below and as

such his motion to withdraw his guilty plea should have been granted. Finding no

error, we affirm.

According to the proffer of evidence presented at the plea hearing, Thompkins

had previously pled guilty to battery against the victim in June of 2015 in Jacksonville,
Florida. Following Thompkins’s guilty plea to battery, the victim obtained a protective

order and moved to Georgia. On August 29, 2015, she made a police report that

Thompkins had visited her workplace and that she had received over two hundred text

messages from Thompkins, in violation of the protective order.

A month later, the victim was notified that her home had burned down. While

she was driving to her home she saw Thompkins next to a disabled vehicle on the

opposite side of the interstate, and reported his presence to the police department.

Police officers arrived at the scene, observed fresh burns on Thompkins’s body, and

placed him under arrest.

The trial court conducted a plea hearing, at which Thompkins was represented

by counsel. Upon questioning, Thompkins averred that he understood the charges

against him under the indictment, and that, if found guilty, he could be sentenced to

a maximum of fifty years. The trial court accepted Thompkins’s guilty plea to

aggravated stalking and sentenced him to 10 years.

Thompkins subsequently filed a pro se motion to withdraw the plea. After a

hearing on the motion, at which Thompkins was represented by new counsel, the

motion was denied.

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1. “After sentencing, a defendant may withdraw a guilty plea only to correct a

manifest injustice, such as where the defendant was denied effective assistance of

counsel, or the guilty plea was entered involuntarily or without an understanding of the

nature of the charges.” McGuyton v. State, 298 Ga. 351, 353 (1) (a) (782 SE2d 21)

(2016) (citation and punctuation omitted).

When a criminal defendant seeks to withdraw a guilty plea on the ground

of ineffective assistance of counsel, the ineffective assistance claim must

be evaluated under the two-prong test set forth in Strickland v.

Washington.

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In order to prevail on a claim of ineffective assistance of

counsel, appellant must show counsel’s performance was deficient and

that the deficient performance prejudiced him to the point that a

reasonable probability exists that, but for counsel’s errors, the defendant

would have elected to proceed to trial rather than enter a plea. A strong

presumption exists that counsel’s conduct falls within the broad range of

professional conduct.

Gomez v. State, 300 Ga. 571, 573 (797 SE2d 478) (2017) (citations and punctuation

omitted). “A decision on a motion to withdraw a guilty plea is a matter for the sound

discretion of the trial court and will not be disturbed absent manifest abuse.”

McGuyton, supra (citation omitted).

1 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LEd2d 674) (1984).

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(a) Thompkins claims that his counsel was ineffective in failing to file a special

demurrer challenging the date range within his indictment. Specifically, the indictment

charged Thompkins with committing aggravated stalking “between the 29th day of

August, 2015, and the 27th day of September, 2015, the exact date of the offense

being unknown to the Grand Jury[.]” Thompkins contends that because the State

provided a date at the plea hearing, August 29, 2015, on which he allegedly contacted

the victim at her workplace, the State could have narrowed the range of dates and

thereby his trial counsel should have filed a special demurrer.

Generally, an indictment which fails to allege a specific date on which the

crime was committed is not perfect in form and is subject to a timely

special demurrer. However, where the State can show that the evidence

does not permit it to allege a specific date on which the offense occurred,

the State is permitted to allege that the crime occurred between two

particular dates.

State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005) (footnotes and

citations omitted). Here, the aggravated stalking count on the indictment also states that

Thompkins contacted the victim “by electronic means.” If, as alleged by the State,

Thompkins had sent text messages to the victim over the indicted time period, the

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State would likely have been permitted to allege that the crime occurred between the

two dates. See Id.

Even assuming it was error for Thompkins’s counsel to have failed to file a

special demurrer, Thompkins cannot demonstrate the prejudice necessary to support

his ineffective assistance claim.

If a timely special demurrer is granted, the trial court quashes the

indictment. However, the quashing of an indictment merely bars trial on

the flawed indictment; it does not bar the State from reindicting the

defendant. Thus, even if [Thompkins’s] attorney had filed a demurrer, it

would not have prevented the State from reindicting and trying

[Thompkins].

Chapman v. State, 318 Ga. App. 514, 517 (1) (a) (733 SE2d 848) (2012) (footnote

and punctuation omitted). Thompkins does not claim that the allegedly imperfect

indictment prejudiced him in any way, just that the special demurrer “more likely than

not . . . would have been successful[.]” Under these circumstances, Thompkins has

failed to show that he was prejudiced by his attorney’s failure to file a special

demurrer. See Gomez, supra. See also Chapman, supra.

(b) Thompkins also claims that trial counsel was ineffective in advising him of

the nature of offenses that he was charged with and the elements that the State would

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have had to prove at trial. However, at the plea hearing Thompkins averred that he

understood the charges and all ramifications of entering a guilty plea. While

Thompkins claimed at the hearing on his motion to withdraw that he did not fully

understand the elements of the aggravated stalking charge, “any contradiction between

[Thompkins’s] testimony during the plea hearing and his testimony during the motion

hearing is a matter of witness credibility, which the trial court was authorized to decide

against him.” Niako v. State, 271 Ga. App. 222, 226 (609 SE2d 154) (2005) (footnote

omitted).

Furthermore, at Thompkins’s motion hearing, his trial counsel testified that he

“went over every element of the crime and discussed how each element would have

to be proven beyond a reasonable doubt before he could be convicted.” “The trial

court was authorized to reject [Thompkins’s] version of the facts and credit instead

the testimony of his counsel.” Green v. State, 324 Ga. App. 133, 135 (1) (749 SE2d

419) (2013) (citations and punctuation omitted). Accordingly, Thompkins has not

demonstrated that he received ineffective assistance of counsel and the trial court did

not abuse its discretion by denying his motion to withdraw his guilty plea. See

McGuyton, supra at 354 (1) (a).

Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.

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