On appeal from the trial court’s denial of his motion to withdraw a guilty plea, Phillip Watson argues that because the motion was timely filed, the court erred in refusing to hold an evidentiary hearing concerning his ineffective assistance claim and in denying the motion. We agree that the motion remained pending, vacate the denial of the motion, and remand the case for further proceedings. The record shows that on May 9, 2008, Watson pled guilty to three counts of electronically furnishing obscene materials to minors and was sentenced to 36 months with 14 to serve. On May 21, 2008, Watson moved to withdraw his guilty plea on the ground that it was manifestly unjust.1 After notice to the State, a hearing was held on May 30, 2008, at which Watson’s counsel, who had also represented him at the plea hearing, asked for a continuance “two or three months down the road.” After noting that Watson had already been sentenced, the trial court said that “counsel can request the hearing to be put down at any time that you choose.” When counsel asked that the case be taken off the calendar, the trial court said: “All right, it will be removed from the calendar now.”
Almost two years later, on March 4, 2010, and represented by new counsel, Watson brought an amended motion to withdraw his plea on the ground that previous counsel had rendered ineffective assistance concerning the collateral consequences of his plea. Specifically, Watson alleged that previous counsel had told him that if he pled guilty, he would be released from Whitfield County jail that day and could evade Montana authorities, who were seeking his arrest, but that in fact Watson was not released and was instead arrested by Montana authorities, who transported him to that state before the hearing on his amended motion. After that hearing, the trial court entered an order denying the motion to withdraw on grounds including that it did not allege more than a legal conclusion, had been entered only for the purpose of “keeping the record open,” did not relate back, and had been abandoned through inaction. This appeal followed.
