FOURTH DIVISION

DILLARD, C. J.,

RAY, P. J., and SELF, 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

August 30, 2017

In the Court of Appeals of Georgia

A17A1106. PLATT v. THE STATE.

DILLARD, Chief Judge.

Bartholomew Platt, proceeding pro se, appeals the trial court’s denial of his

motion to withdraw his guilty pleas to theft by taking, false swearing, and seconddegree cruelty to children, arguing that he is entitled to be represented by counsel on

appeal, he was not informed of the correct sentencing range for one of his charges,

and there was an insufficient factual basisto support his guilty plea to theft by taking.

For the reasons that follow, we remand this case for further proceedings consistent

with this opinion. 

The record shows that on February 7, 2014, a convenience-store owner

reported to law enforcement thatsome of hisscaffolding, which was worth more than

$1,500, had been stolen. An investigation ensued, and law-enforcement officers
ultimately “tracked [the scaffolding] down to SLM Recycling.” The officers then

determined that Platt had signed the scaffolding over to SLM Recycling, and falsely

represented that he had the authority to do so. Based on this information, Platt was

indicted in Case Number 14-CR-890 for theft by taking involving property worth

more than $1,500 and false swearing. Then, on February 16, 2015, in a separate and

apparently unrelated incident, Platt was caught on videotape outside a convenience

store pushing a “young man” to the ground and holding him there.

1 As to that

incident, in Case Number 15-CR-611, Platt wasindicted for cruelty to children in the

first degree.2

Following negotiations with theState on both cases, Platt agreed to plead guilty

to theft by taking, false swearing, and second-degree cruelty to children. In exchange,

the State agreed, in Case Number 15-CR-611, to reduce the first-degree cruelty-tochildren charge (Count 7), a felony, to the lesser-included offense of second-degree

cruelty to children, a misdemeanor. The State also agreed to nolle pros the six other

1 Although the young man’s age was not stated during the plea hearing, the

indictment alleged that he was under the age of 18.

2

In Case No. 15-CR-611, Platt was also indicted for three counts of child

molestation, two counts of aggravated assault, and one count of terroristic threats. As

discussed infra, the State agreed to nolle prosthose counts as part of a negotiated plea

deal, and thus, they are not relevant to the instant appeal. 

2
charges in that case, which included three counts of child molestation, two counts of

aggravated assault, and one count of terroristic threats. After a plea hearing, the trial

court approved the negotiated guilty plea, determined that Platt’s guilty plea was

knowing and voluntary, and imposed the sentence that had been agreed upon by the

parties. Specifically, Plattreceived a five-year sentence for theft by taking, a five-year

sentence for false swearing, and a three-year sentence for second-degree cruelty to

children, all of which to be served consecutively for a total sentence of 13 years. 

Subsequently, on September 21, 2015, Platt filed a pro se motion to withdraw

his guilty plea, summarily asserting that he received ineffective assistance of counsel.

The trial court scheduled a hearing on the motion and appointed counsel to represent

Platt in the matter. Platt’s newly appointed counsel then filed an amended motion to

withdraw Platt’s guilty plea, abandoning the ineffective-assistance-of-counsel claim

and arguing that the plea wasinvoluntary because the State advised Platt that he faced

a sentencing range for second-degree cruelty to children that was much higher than

the one he actually faced. Nevertheless, following a hearing, the trial court denied

Platt’s motion. This appeal follows.

Although a guilty plea may be withdrawn anytime before sentencing, “once a

sentence has been entered, a guilty plea may only be withdrawn to correct a manifest

3
injustice, and a trial court’s refusal to allow withdrawal will not be disturbed on

appeal absent a manifest abuse of discretion.”

3 Further, while the test for manifest

abuse of discretion will, by necessity, vary from case to case, withdrawal of a guilty

plea is necessary to correct a manifest injustice if, for example, “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.”4 With these guiding principles in

mind, we turn now to Platt’s specific claims of error. 

1. Platt first contends that the trial court erred by failing to appoint him

appellate counsel to represent him in this appeal.

5

 We agree. 

3 Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011) (footnote and

punctuation omitted); accord Hall v. State, 313 Ga. App. 670, 672 (2) (722 SE2d

392) (2012).

4

Stinson v. State, 286 Ga. 499, 499 (689 SE2d 323) (2010) (punctuation

omitted); accord Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005).

5

In his appellate brief, Platt contendsthat the trial court appointed himcounsel,

but that his counsel later “abandoned him,” thereby forcing him to file this appeal pro

se. But it is unclear from Platt’s brief whether he means that his counsel in the

underlying plea-withdrawal proceedingsimproperly abandoned himafter he filed the

notice of appeal or that the court appointed new appellate counsel, who later

abandoned him. In this regard, the record reflects that the trial court appointed

counsel to represent Platt in the underlying plea-withdrawal proceedings, but after

Platt filed his notice of appeal, the trial court did not appoint new appellate counsel.

And it is also evident that Platt’s counsel in the underlying proceeding has, for

whatever reason, discontinued his representation of Platt. Construing Platt’s pro

4
We begin by noting that the Supreme Court of the United States has held that

“the Sixth Amendment right to counsel in criminal prosecutions applies to every

critical stage in a criminal prosecution.”6 And the Supreme Court of Georgia has

specifically held that “the plea withdrawal proceeding is a critical stage of the

criminal prosecution[,]” and absent a valid waiver of counsel, a defendant is “entitled

to counsel to assist him in seeking to withdraw his guilty plea[ ].”7 Moreover, this

Court has further held that “the right to counsel extends through the direct appeal of

an order denying [a] defendant’s motion [to withdraw his guilty plea].”8

se brief forgivingly, we interpret his argument to simply be that he has a

constitutional right to appellate counsel, regardless of whether it is by continued

representation by his counsel below or by the appointment of new counsel for this

appeal. See Campbell v. State, 313 Ga. App. 436, 438 (721 SE2d 649) “Because [the

appellant] filed this appeal pro se, we will construe his brief [forgivingly].”

6 Fortson v. State, 272 Ga. 457, 458 (1) (532 SE2d 102) (2000) (citing Gerstein

v. Pugh, 420 U.S. 103, 121 (III) (95 SCt 854, 43 LE2d 54) (1975)). 

7 Fortson, 272 Ga. at 459 (1); see Young v. State, 328 Ga. App. 91, 93 (761

SE2d 504) (2014)(noting that “the right to counsel obtains at proceedings on motions

to withdraw a guilty plea”). 

8 Murray v. State, 265 Ga. App. 119, 120 (592 SE2d 898) (2004); see Schlau

v. State, 261 Ga. App. 303, 304 (2) (582 SE2d 243) (2003) (“[T]he right to counsel

continuesthrough the direct appeal of an order denying a motion to withdraw a guilty

plea.”). 

5
As previously noted, Platt asserts that he is entitled to be represented by

counsel in this appeal. Indeed, although the record does not reflect that Platt ever

specifically requested the appointment of appellate counsel, “an [indigent]individual

desiring an appeal [in a criminal case] need not, once a responsible state authority

knows of the desire to appeal and knows of the status of indigency, specifically

request appointment of appellate counsel.”9

We acknowledge that our Supreme Court has explained—in the context of an

indigent defendant’s right to counsel in plea-withdrawal proceedings before the trial

court—that an appellate court should consider whether the absence of counsel was

prejudicial to the defendant.

10 And here, Platt wasrepresented by counsel in his pleawithdrawal proceedings before the trial court, he has not alleged that his counsel

below was ineffective, and his appeal addresses the merits of the only claim that his

trial counsel preserved for appeal. Indeed, on appeal, Platt is limited to reasserting

9 Trauth v. State, 295 Ga. 874, 875-76 (1) (763 SE2d 854) (2014); accord

Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444) (1973).

10

See Fortson, 272 Ga. at 460 (2) (explaining that, after determining that the

trial court had a duty to inform a defendant of his right to counsel in his pleawithdrawal proceedings or to obtain a valid waiver of counsel, the appellate court’s

next inquiry is whether the absence of counsel was prejudicial).

6
arguments that were raised before and ruled upon by the trial court.

11 And this is

exactly what he has done. Indeed, in his pro se appellate brief, Platt has raised, inter

alia, the only argument that wasruled upon by the trial court—i.e., that his guilty plea

was unknowing and involuntary because he was given the incorrectsentencing range

for one of the three charged offenses.

12 Nevertheless, even if Platt’s appellate brief

issufficient to allow this Court to review that claim on the merits, the Supreme Court

of Georgia has cautioned that “[t]he vast majority of courts that have addressed the

denial of the right to counsel at [a] critical stage in a criminal proceeding have

reversed and remanded to the trial court with instructions to appoint counsel . . . .”13

The Supreme Court has also explained that when a defendant claims his guilty plea

11

See Amica v. State, 307 Ga. App. 276, 282 (2) (704 SE2d 831) (2010)

(explaining that this Court is a court for correction of errors of law made by the trial

court, which have as their bases specific rulings made by the trial court, and in the

absence of such a ruling, the claim of error presents nothing for this Court to review);

Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998) (“This Court is

a court for the correction of errors of law committed by the trial court below, and we

need not nor do we consider issues presented for the first time on appeal.”).

12 The trial court also construed Platt’s amended motion to withdraw his guilty

plea as asserting a related claimthat his prior counsel who represented him during the

plea proceedings was ineffective for failing to inform him of the correct sentencing

range that he faced for the cruelty-to-children charge. But the trial court rejected both

claims on the same basis. 

13 Fortson, 272 Ga. at 460 (2) (footnote omitted). 

7
was not knowingly and voluntarily entered, a harmless-error analysis in the context

of the denial of that defendant’s right to counsel is inappropriate.14 We, like the

Supreme Court, “are persuaded by those majority of cases holding that reversal and

remand is the appropriate remedy for violations of this constitutional right.”15

Thus, even if it is possible for us to consider the merits of Platt’s claims now,

and even if he would not ultimately be prejudiced by proceeding pro se on appeal, we

follow our Supreme Court’s direction that remanding the case for appointment of

counsel is appropriate for the violation of a constitutional right. 

14

See id.

15

Id. The sole case that the State relies on in arguing that this Court should

decide this appeal on the merits even though Platt does not have appellate counsel is

Massey v. State, 278 Ga. App. 303 (628 SE2d 706) (2006), which the State contends

is “quite similar” to this case. But Massey is distinguishable in a material respect

because, in that case, although the trial court denied the defendant’s request for new

counsel to represent him in his appeal from his plea-withdrawal proceedings, the

defendant was still represented on appeal by his original trial counsel, and because

he failed to show that his trial counsel’s continued representation on appeal

prejudiced him, we decided his appeal on the merits. See Massey, 278 Ga. App. at 306

(2). Here, Platt has no legal representation on appeal, which is in violation of his

constitutional rights. See, e.g. Leonard v. State, 293 Ga. App. 808, 809 (1) (668 SE2d

321) (2008); Murray, 265 Ga. App. at 120; Schlau, 261 Ga. App. at 304 (2). 

8
2. Given our holding in Division 1 that this case must be remanded to the trial

court to consider Platt’s clam that he is entitled to the appointment of appellate

counsel, it is premature for this Court to address any of Platt’s claims on the merits. 

For all these reasons, we remand this case with direction that the trial court

consider whether Platt satisfies the indigency requirement such that appointment of

appellate counsel is warranted, and if so, appoint counsel to represent him on

appeal.

16

Case remanded with direction. Ray, P. J. and Self, J., concur.

16

See Schlau, 261 Ga. App. at 304 (2) (vacate the trial court’s order denying

the defendant’s motion for appointment of counsel to represent him on appeal from

the denial of his motion to withdraw his guilty plea and remanding the case for a

determination on the record as to whether the circumstances warrant appointment of

appellate counsel). 

9