State v. Kelley

The trial court did not have the authority to accept the defendant's guilty plea to an uncharged, lesser-included offense without the State's consent.

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We granted certiorari in this criminal case to address whether, absent the consent of the State, a trial court has the authority to enter judgment and impose sentence on a guilty plea to an uncharged, lesser included offense, see Bostic v. State, 184 Ga. App. 509 361 SE2d 872 1987, and what authority, if any, the State has to withdraw its consent to a negotiated plea upon learning of the trial court’s intention to reject the State’s recommended sentence and impose a lighter one. See State v. Harper, 279 Ga. App. 620 2 631 SE2d 820 2006, overruled on other grounds by State v. King, 325 Ga. App. 445 750 SE2d 756 2013. We conclude that the trial court does not have the authority to accept a guilty plea to an uncharged, lesser included offense without the consent of the State, and that, where the State makes a timely and specific objection, it has the legal authority to withdraw its consent from a negotiated plea and demand a trial when it learns that the trial court does not intend to follow the sentencing recommendation. We therefore reverse the judgment of the Court of Appeals.

The facts are not in dispute. Terry Kelley was indicted for felony murder and other crimes for his participation in an armed robbery attempt that resulted in the death of a participant in the crime. In October 2012, the parties reached the following plea agreement: Kelley would plead guilty to the reduced charge of voluntary manslaughter, he would testify truthfully against his co-defendants, and the State would nolle prosse the remaining charges and recommend a 20-year sentence. The trial court – after hearing a factual basis for the plea, engaging in a colloquy with Kelley, and hearing from various character witnesses – accepted Kelley’s guilty plea to voluntary manslaughter but sentenced him to a term of only ten years, with five to be served in prison and the balance on probation; the trial court also ordered Kelley to testify truthfully against his co-defendants. Following a brief off-the-record bench conference, the following exchange took place:

State v. Kelley

The trial court did not have the authority to accept the defendant's guilty plea to an uncharged, lesser-included offense without the State's consent.

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