Foster v. State
Foster v. State
Opinion of the Court
A Fulton County grand jury indicted Russell Foster on two counts of first degree vehicular homicide based upon driving under the influence (DUI) and reckless driving, two counts of second degree vehicular homicide and five traffic offenses. Foster entered a guilty plea to first degree vehicular homicide based on reckless driving (Count 2) and reckless driving (Count 6), which merged into Count 2 for sentencing purposes. Subsequently, Foster filed a motion to withdraw his guilty plea, which the trial court denied. Foster appeals, alleging his trial counsel provided ineffective assistance and that, as a result, his plea was not intelligently and voluntarily entered. We disagree and affirm Foster’s convictions.
“A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion.”
However, if the motion to withdraw is based on an ineffective assistance of counsel claim, a defendant who pleads guilty bears the burden of showing that his counsel erred and that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.
In this case, Foster argues that he received ineffective assistance of counsel because his trial counsel advised him to plead guilty to a crime that the state could not prove beyond a reasonable doubt. Specifically, Foster maintains the state could not have proven the reckless driving charge. The record belies this claim.
“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.”
The state further presented evidence of Foster’s poor driving record, including convictions for DUI, speeding, disregarding signs or a traffic control device, driving with no proof of insurance, and being
In addition, the evidence in the record, including Foster’s own testimony, shows that trial counsel did not advise Foster to plead guilty. That decision was made by Foster after consultation with his attorney regarding the strengths and weaknesses of his case. Foster’s trial counsel testified at the hearing on the motion to withdraw Foster’s plea that he represented Foster for two years on this case, and from the beginning expected to go to trial because there was no plea offer from the state. Foster made a last minute decision to enter a blind plea after the jury was impaneled because he knew that, based on his status as a recidivist, he could be facing a long maximum sentence if a jury found him guilty.
Foster further claims trial counsel was ineffective for advising him to remain silent at the guilty plea hearing although the trial judge based his sentence in part on the fact that Foster failed to explain his actions at the crime scene. Foster testified at the hearing on the motion to withdraw his plea that he swerved into the emergency lane and struck the officer because he had dropped his cell phone while on a call and was bending down to pick it up. Trial counsel advised Foster not to offer this explanation because he thought the explanation could have implicated Foster and might have made the case worse. According to trial counsel, this action would have just been one more circumstance, but not the deciding factor, in determining whether Foster’s actions constituted reckless driving. Trial counsel’s advice was not professionally unreasonable and does not provide a basis for an ineffective assistance of counsel claim.
Moreover, regardless of the allegations raised in his motion to withdraw his plea, the transcript of Foster’s plea hearing clearly shows that the plea was entered voluntarily and that Foster fully understood what he was doing at the time he pled guilty.
Judgment affirmed.
(Punctuation and footnote omitted.) Zellmer v. State, 257 Ga. App. 346, 347 (2) (571 SE2d 174) (2002).
See Beck v. State, 222 Ga. App. 168 (473 SE2d 263) (1996).
Johnson v. State, 260 Ga. App. 897, 899 (1) (581 SE2d 407) (2003).
Whitesides v. State, 266 Ga. App. 281, 288 (4) (596 SE2d 706) (2004); Ellis v. State, 272 Ga. 763, 764 (1) (534 SE2d 414) (2000); Zellmer, supra.
See Swan v. State, 251 Ga. App. 80, 81 (1) (553 SE2d 383) (2001).
OCGA § 40-6-390 (a).
See English v. State, 261 Ga. App. 157, 159 (2) (582 SE2d 136) (2003); Allen v. State, 177 Ga. App. 600, 602 (1) (340 SE2d 246) (1986).
See Thomas v. State, 234 Ga. App. 652, 653 (1) (507 SE2d 523) (1998).
See Sibley v. State, 249 Ga. App. 664, 665 (550 SE2d 104) (2001).
See Swan, supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.