¶1In the Supreme Court of Georgia
¶2 Decided: February 1, 2021
¶3 S20A1477. JORDAN v. THE STATE.
¶4 PETERSON, Justice.
¶5 After Travis Jordan brought an abrupt end to his murder trial
¶6by pleading guilty to felony murder, he moved to withdraw his plea
¶7prior to sentencing. The trial court denied Jordan’s motion,
¶8concluding that Jordan did not have a right to withdraw his guilty
¶9plea because he was charged with a capital crime and that, even if
¶10he had such a right, he had waived it. Jordan appealed and argues,
¶11among other things, that he had an absolute right to withdraw his
¶12guilty plea and that he did not knowingly waive his right. Jordan is
¶13correct, and so we reverse.
¶14 Jordan was charged with six different counts, including malice
¶15murder, felony murder, aggravated assault, and cruelty to children.
¶16A jury trial began in June 2017. On the fourth day of the trial, Jordan took a short recess to discuss with defense counsel whether
¶17he wanted to testify. Following the recess, defense counsel
¶18announced that Jordan had reached an agreement with the
¶19prosecutor to plead guilty to felony murder, with the sentence to be
¶20determined by the court and the remaining charges to be dismissed.
¶21 The trial court confirmed with Jordan that he wanted to plead
¶22guilty, reviewed the trial rights that he would be waiving by
¶23pleading guilty, and informed Jordan that the court could sentence
¶24him to either life in prison with the possibility of parole, or life
¶25without parole. Jordan confirmed that he understood that the jury
¶26could possibly find him guilty of all, some, or none of the charges if
¶27the trial continued, and that entry of the plea would end the trial.
¶28The trial court specifically asked Jordan, “you understand that if I
¶29wind up sentencing you to life without parole, you can’t then turn
¶30around and ask for a jury trial?” The trial court also asked Jordan,
¶31“[D]o you understand that by pleading guilty to this one count of
¶32felony murder you’re ending this jury trial, and it will not finish, and
¶33there will not be another one?” Jordan answered affirmatively to
¶34 2 both questions. Jordan also acknowledged that he had enough time
¶35to talk to his attorney and that he had signed a plea agreement form,
¶36which stated only that he was pleading guilty to felony murder.
¶37 After an extended discussion about whether Jordan was
¶38admitting his guilt, the trial court accepted Jordan’s plea, finding
¶39that there was a factual basis for the plea based on the evidence
¶40presented at trial and that Jordan knowingly and voluntarily
¶41pleaded guilty. The trial court stated that it would schedule a
¶42sentencing hearing as soon as practicable.
¶43 Before sentencing, however, Jordan filed a motion to withdraw
¶44his guilty plea, in which his counsel suggested that she had new
¶45reasons for believing that Jordan may be innocent and argued that
¶46he could withdraw his plea for any reason prior to sentencing.
¶47Following a hearing, the trial court denied Jordan’s motion to
¶48withdraw and issued a written order finding that Jordan had waived
¶49his right to withdraw his guilty plea and that Jordan had filed his
¶50motion to withdraw with the intent to manipulate the court system.
¶51The court later sentenced Jordan to life with the possibility of parole.
¶52 3 Almost a month after sentencing, the trial court entered an
¶53order further explaining its reasons for denying Jordan’s motion to
¶54withdraw his plea. The trial court concluded that, under Fair v.
¶55State, 245 Ga. 868, 878 (8) (268 SE2d 316) (1980), Jordan did not
¶56have the right to withdraw his guilty plea because his was a “capital
¶57case,” even though the State did not seek the death penalty, because
¶58the crime of murder was a capital felony for which the death penalty
¶59was available. In its expanded order, the trial court also restated its
¶60conclusion that Jordan waived his right to withdraw, this time
¶61finding that the court had “repetitively made clear that pleading
¶62guilty would end the pending trial and that there would be no
¶63subsequent withdrawal and retrial of the case,” and that Jordan
¶64rejected the opportunity to withdraw the guilty plea at the close of
¶65the plea hearing. This appeal followed.
¶66 1. Jordan argues that the trial court erred in concluding that
¶67his murder charge meant that he did not have the right to withdraw
¶68his guilty plea. We agree.
¶69 A defendant generally has an absolute right to withdraw his
¶70 4 guilty plea before his sentence is pronounced. OCGA § 17-7-93 (b)
¶71gives a defendant the right to withdraw his guilty plea “[a]t any time
¶72before judgment is pronounced,” and we have interpreted this
¶73language as permitting withdrawal as a matter of right at any time
¶74before the trial court orally pronounces a defendant’s sentence. See
¶75Humphrey v. State, 299 Ga. 197, 198 (1) (787 SE2d 169) (2016). Once
¶76a sentence is pronounced, that absolute right terminates; after that
¶77point, a trial court has the discretion to allow withdrawal, but only
¶78when necessary to correct a manifest injustice. See Walden v. State,
¶79291 Ga. 260, 261 (1) (728 SE2d 186) (2012).
¶80 We identified an exception to the right to withdraw a guilty
¶81plea before sentencing in Fair, where we ruled that the right to
¶82withdraw prior to sentencing does not apply to guilty pleas in cases
¶83in which the State seeks the death penalty. See 245 Ga. at 878 (8);
¶84see also Blackwell v. State, 299 Ga. 122, 122 & n.1 (786 SE2d 669)
¶85(2016). We reached that conclusion in Fair because in cases where
¶86the death penalty is sought, with the exception of cases involving
¶87aircraft hijacking and treason, the “judgment does not rest upon the
¶88 5 plea but rather upon the plea and the proof of an aggravating
¶89circumstance,” and additional proceedings following the plea are
¶90required to determine the existence of an aggravating circumstance
¶91to authorize the death penalty. 245 Ga. at 878 (8) (noting that an
¶92aggravating circumstance is not required for offenses of aircraft
¶93hijacking or treason); see also OCGA § 17-10-30 (a) (the death
¶94penalty can be imposed for hijacking and treason in any case), (b)
¶95(listing aggravating circumstances for other felonies that would
¶96authorize the death penalty).
¶97 There is no dispute that the State did not seek the death
¶98penalty in this case. Following Jordan’s guilty plea, the trial court
¶99was required only to enter a sentence, not to conduct another
¶100proceeding to determine the existence of an aggravating
¶101circumstance. As a result, the Fair exception to OCGA § 17-7-93 (b)
¶102did not apply. Jordan did have a right to withdraw his plea at the
¶103time he filed his motion to withdraw.
¶104 2. Jordan next argues that he did not knowingly waive his right
¶105to withdraw his guilty plea. He argues that he was never advised of
¶106 6 his right or told that he would be waiving the right by pleading
¶107guilty. We agree.
¶108 The right to withdraw under OCGA § 17-7-93 (b) can be waived
¶109if the waiver is knowingly, voluntarily, and intelligently made. See
¶110Blackwell, 299 Ga. at 124. On direct appeal, the State bears the
¶111burden of establishing that a defendant’s waiver is valid. See, e.g.,
¶112Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468) (2013). Because
¶113a waiver is the “intentional relinquishment or abandonment of a
¶114known right,” Wiggins v. State, 298 Ga. 366, 369 (2) (782 SE2d 31)
¶115(2016) (citation and punctuation omitted), the State may meet its
¶116burden of proving a valid waiver by pointing to record evidence
¶117showing that the defendant was advised of his right and waived it.
¶118See Rawles v. Holt, 304 Ga. 774, 777 (822 SE2d 259) (2018) (the
¶119State may establish waiver of a statutory right to appeal by
¶120introducing signed waiver form or pointing to detailed questioning
¶121of the defendant showing that defendant was informed of his right);
¶122see also State v. Cooper, 281 Ga. 63, 64 (1) (636 SE2d 493) (2006)
¶123 7 (“[W]aiver will not be presumed from a silent record.” (citation and
¶124punctuation omitted)).
¶125 In Blackwell, we held that the record showed the trial court
¶126adequately advised the defendant about the right to withdraw under
¶127OCGA § 17-7-93 (b) and of his inability to exercise that right after
¶128entering his guilty plea. See 299 Ga. at 124-125. There, in discussing
¶129the consequences of the defendant’s guilty plea, the prosecutor and
¶130the court both referred to the extent to which the defendant would
¶131have an opportunity to withdraw his guilty plea, and we concluded
¶132that the context of those discussions informed the defendant that he
¶133would not have such an opportunity once his plea was accepted by
¶134the trial court. See id.
¶135 This case is unlike Blackwell, because the record here does not
¶136show that Jordan was ever told about his right to withdraw a guilty
¶137plea before sentencing, much less that he would waive that right as
¶138part of his plea. The plea form in the record merely stated that
¶139Jordan was pleading guilty to felony murder; it did not discuss any
¶140rights that Jordan would be waiving by pleading guilty. In reviewing
¶141 8 the plea terms with the trial court, the prosecutor said that Jordan
¶142would plead guilty to felony murder, the remaining charges would
¶143be dropped, and the sentence would be left to the court’s discretion.
¶144The prosecutor made no mention that a term of the plea agreement
¶145was that Jordan was waiving his right to withdraw his plea once it
¶146was accepted by the court. Compare Blackwell, 299 Ga. at 124.
¶147 Although the transcript of the plea colloquy shows that Jordan
¶148was advised of his trial rights and told that he would be waiving
¶149those rights by pleading guilty, 1 at no point in that colloquy did the
¶150trial court refer specifically to the statutory right to withdraw under
¶151OCGA § 17-7-93 (b). The trial court’s statements that Jordan would
¶152not be able to ask for another trial were not sufficient to advise
¶153Jordan of his right to withdraw his guilty plea prior to sentencing.
¶154The trial court confirmed that Jordan understood that “if I wind up
¶155sentencing you to life without parole, you can’t then turn around and
¶156ask for a jury trial.” But this phrasing does not refer to the right to
¶157 1 Indeed, after the colloquy, the trial court found only that Jordan “made a voluntary waiver of his rights in connection with a trial.” But the waiver of the right to withdraw a guilty plea is not a right connected with a trial. 9 withdraw a plea before sentencing; instead, it refers to Jordan’s
¶158ability to ask for a jury trial after sentencing. The trial court also
¶159confirmed that Jordan understood that, by pleading guilty, he would
¶160be “ending this jury trial, and it will not finish, and there will not be
¶161another one.” Unlike in Blackwell, the trial court’s statement that
¶162there would not be another trial did not plainly inform Jordan that
¶163he would not be permitted to withdraw his guilty plea if it were
¶164accepted by the trial court. 2 Compare Blackwell, 299 Ga. at 124-125;
¶165see also Brant v. State, 306 Ga. 235, 237-239 (830 SE2d 140) (2019)
¶166(concluding that waiver of right to appeal was valid where plea
¶167agreement acknowledged that waiver was knowingly, intelligently,
¶168 2 Because the trial court accepted Jordan’s nonnegotiated plea, it does not appear that Uniform Superior Court Rule (“USCR”) 33.10 imposed an affirmative obligation on the trial court to advise Jordan of his right to withdraw under OCGA § 17-7-93 (b). See Mahaffey v. State, 308 Ga. 743, 748 (2) (b) (843 SE2d 571) (2020) (concluding that USCR 33.10’s requirement ⸺ that the trial court advise a defendant that he has the right to withdraw his plea if the court intends to reject the plea agreement ⸺ does not apply when the court accepts a negotiated plea agreement); Rosser v. State, 273 Ga. App. 745, 746 (615 SE2d 842) (2005) (holding that the trial court was not required to comply with USCR 33.10 because the defendant entered into a nonnegotiated plea, with sentencing left up to the judge). But regardless of whether the trial court was required to inform Jordan of that right, its failure to do so precluded a knowing waiver of his right. 10 and voluntarily made after consultation with counsel and plea
¶169hearing transcript showed that defendant was asked specifically
¶170about the waiver).
¶171 We are sympathetic to the trial court’s concern that Jordan’s
¶172guilty plea and subsequent motion to withdraw were calculated to
¶173manipulate the justice system. They may well have been. But the
¶174text of OCGA § 17-7-93 (b) does not include an exception for
¶175intentional manipulation, and we will not create one. In such cases,
¶176it is incumbent on the trial court and prosecutor to ensure that a
¶177record is made that will show a knowing and voluntary waiver. 3
¶178Because the record here does not show such a waiver, we reverse.4
¶179 3 A trial court can also protect against such manipulation by promptly sentencing a defendant. And if the defendant pleads guilty during trial, the trial court can hold the jury until the defendant is sentenced. 4 Jordan also argues that the judgment is void because his indictment
¶180was fatally defective in that the felony murder count averred neither the elements of the predicate felony nor facts that would support them. Jordan’s claim is essentially a special demurrer seeking greater specificity with respect to the predicate felony, and he concedes in his brief that his failure to raise this claim below precludes our review. See Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010) (defendant waived claim that felony murder count did not contain essential elements of predicate felony because he did not file timely special demurrer under OCGA § 17-7-110), overruled on other grounds by State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011). Jordan argues that we should
¶181 11 Judgment reversed. All the Justices concur, except Bethel, J., disqualified.
¶182reconsider our waiver precedent because the judgment entered in his case is void. But there is no longer a judgment in this case given our reversal here, and his claim is not the type of claim that would render a judgment void. Cf. Hinkson v. State, ___ Ga. ___, ___ (4) (850 SE2d 41) (2020) (“Unlike a special demurrer, which is waived if not brought before trial, we have held that a count of an indictment which is subject to a valid general demurrer is void, and we have explained that a general demurrer may be raised after jeopardy has attached and at any time during trial, as well as in the form of a motion in arrest of judgment after a verdict in the same term of court.” (citations and punctuation omitted)). 12