Gomez v. GeorgiaAnnotate this Case
This appeal stemmed from the denial of a motion to withdraw a guilty plea. Appellant Gilberto Gomez shot and killed 13-year-old Steven Galindo during an armed robbery of Galindo and Galindo’s sister, Samaria Diaz. Gomez and his compatriot Sergio Reyes Alvear approached the victims while they were outside their apartment next to their truck. Gomez was armed with a shotgun and Alvear was armed with a baseball bat. Gomez and Alvear, whose faces were covered by bandanas, invoked the name of a street gang and demanded the keys to the vehicle. They also took money and jewelry from Diaz. When the key the men were given did not start the truck, Alvear began hitting the truck with the bat. Meanwhile, Galindo tried to run away and Gomez shot him at least two times in the back. A Clayton County grand jury indicted Gomez and Alvear on charges of malice murder, four counts of felony murder, two counts of armed robbery, two counts of aggravated assault, three counts of violating the Georgia Street Gang Terrorism and Prevention Act (GSGTPA), two counts of hijacking a motor vehicle, criminal damage to property in the second degree, theft by receiving stolen property, and five counts of possession of a firearm during the commission of a crime. Before trial, Gomez learned from plea counsel that Alvear would likely testify against him, and, at that point, Gomez entered a negotiated plea and pled guilty to malice murder, armed robbery (of Diaz), and a violation of the GSGTPA. The trial court sentenced Gomez to life in prison with the possibility of parole for malice murder, 15 years to serve consecutively for armed robbery, and 5 years to serve consecutively for violation of the GSGTPA. The remaining indicted charges were nolle prossed. On appeal, Gomez argued his plea should be allowed to be withdrawn because his plea counsel did not specifically advise him he would have to serve at least 42-45 years in prison before being eligible for parole. As such, Gomez contended his plea counsel rendered constitutionally ineffective assistance. Finding no reversible error, the Supreme Court affirmed the denial of the motion.