McKiernan v. State

The trial court erred in dismissing defendant's motion to withdraw his guilty plea, because his post-conviction letter requesting to withdraw his guilty plea was sufficient to constitute such a motion.

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Larry Patrick McKiernan appeals from the dismissal of his motion to withdraw his plea of guilty to felony murder while in the commission of aggravated assault. For the reasons that follow, we vacate the trial court’s order, and remand. On September 7, 2005, a Gwinnett County grand jury indicted McKiernan on charges of malice murder, felony murder while in the commission of aggravated assault, aggravated assault, concealing the death of another, and possession of a firearm during the commission of a crime, all in connection with the death of his wife, Patricia McKiernan. He entered a guilty plea to the charge of felony murder while in the commission of aggravated assault on January 31, 2007, and that same day was sentenced to life in prison; an order of nolle prosequi was entered as to the other four charges in the indictment. On February 27, 2007, a letter to the trial judge from McKiernan was filed in the office of the Clerk of the Superior Court of Gwinnett County; in that letter McKiernan asked to withdraw his guilty plea, and requested that the court appoint new counsel for trial. On March 15, 2007, the court issued a rule nisi stating that “the above stated motion is hereby scheduled for a hearing on the 2nd day of April, 2007 . . . .” The rule nisi bore the style of the case, and included: “Re: Motion to Withdraw Plea.” The hearing was rescheduled at least twice, and ultimately held on April 27, 2009.1

At the hearing, the State orally moved to dismiss McKiernan’s motion as untimely, asserting that his letter of February 27, 2007, was not a proper motion, and was not served upon the State, and thus no motion was filed within the same term of court in which McKiernan pled guilty and was sentenced.2 After discussion, the court stated it would dismiss the motion, and on April 29, 2009, entered an order doing so.

McKiernan v. State

The trial court erred in dismissing defendant's motion to withdraw his guilty plea, because his post-conviction letter requesting to withdraw his guilty plea was sufficient to constitute such a motion.

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