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Thomas v. State

There was no reasonable probability that plea counsel's alleged assurance that the defendant would only serve three years for pleading guilty to forgery and making a false statement misled the defendant, since the trial court repeatedly warned the defendant that he could receive up to 15 years.

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Tyrone Thomas pleaded guilty to charges of first degree forgery and making a false statement. After sentencing, and after obtaining new counsel, Thomas moved to withdraw the plea and to reduce his sentence. While these motions were pending, Thomas’s counsel also filed a notice of appeal in this Court. The trial court held that the filing of the notice of appeal divested it of jurisdiction over the pending motions. Now represented by different counsel, Thomas contends on appeal that his trial counsel was ineffective in advising him to plead guilty; his initial appellate counsel was ineffective because she filed conflicting pleadings; and the trial court’s refusal to hear his motions denied him due process of law. For reasons that follow, we affirm. 1. A criminal defendant may appeal directly from a judgment entered on a guilty plea only “where the question on appeal is one which may be resolved by facts appearing in the record.”1 We can address the merits of Thomas’s appeal “if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.”2 That is the circumstance here.

Thomas argues that his trial counsel was ineffective because she advised him that if he entered a guilty plea, he would not be sentenced to more than three years to serve; nonetheless, Thomas was sentenced to ten years as a recidivist, with five years to serve. In order to demonstrate ineffective assistance of counsel, Thomas must show “that his counsel erred and also establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”3

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