We granted David Eugene Cammer a certificate of probable cause to appeal the denial of his petition for a writ of habeas corpus
Following a trial in April 2001, a Chatham County jury convicted Cammer of armed robbery, kidnapping with bodily injury, hijacking a motor vehicle, aggravated assault, and possession of a firearm during the commission of a felony. The evidence at trial showed that in July 1998, Cammer, who was 19 years old, and three co-defendants plotted to steal a car. Cammer purchased a gun, accompanied a co-defendant to a Ford dealership, and while the two were test driving a vehicle, pulled the gun on the salesman who had accompanied them and ordered him to empty his pockets. Cammer’s co-defendant drove the car down a dirt road, where everyone exited the vehicle. The salesman fled, and as he did so, Cammer and his co-defendant each fired the gun. Pellets from the gun’s bullets entered the salesman’s head, arm, leg, and back.
The trial court sentenced Cammer to life in prison for kidnapping with bodily injury, concurrent terms of twenty years for armed robbery and aggravated assault, a concurrent term of fifteen years for hijacking a motor vehicle, and a consecutive term of five years for possession of a firearm during the commission of a felony. Cammer’s convictions were affirmed on appeal. Cammer v. State,
The record reflects that Cammer’s father hired trial counsel’s law firm in early 1999 following Cammer’s arrest. Trial counsel secured Cammer’s release from jail on bond, and Cammer was permitted to live with his father and stepmother in South Carolina while he awaited trial. Cammer and his father met with trial counsel when they traveled to Savannah for Cammer’s regular court appearances.
At the evidentiary hearing below, Cammer’s father testified that, to his knowledge, Cammer never met with trial counsel alone. According to Cammer’s father, trial counsel mentioned the possibility that Cammer could get juvenile boot camp because he had never been in trouble before. Trial counsel told him “they would try to go that route and then it changed.” Cammer’s father testified that no one told him that his son would receive a life sentence if convicted. When trial counsel relayed the State’s plea offer, Cammer’s father did not want Cammer to take it. Cammer later told him and his wife that he wanted to accept the offer. But Cammer’s father “just didn’t think [Cammer] should spend years in jail” and advised Cammer
Cammer testified that he was never told that he could receive a life sentence if convicted. He conceded that he was presented with the State’s offer but stated that he did not discuss it with trial counsel without his father present. Cammer stated that he told his father and stepmother that he wanted to take the State’s offer. He testified that trial counsel never directly asked him what he wanted to do; however, he admitted that he never told trial counsel that he wanted to plead guilty.
Trial counsel testified that prior to trial, he interviewed Cam-mer, spoke with Cammer’s family, obtained police reports, and received discovery and shared it with Cammer. He also discussed with Cammer the weight of the State’s evidence against him and communicated the State’s plea offer to Cammer. Trial counsel was “sure” that he discussed the possible range of sentences with his client. He told Cammer that, if convicted, he would be sentenced to ten to twenty years or life for armed robbery, but trial counsel could not specifically recall his advice on the other charges. Trial counsel denied discussing boot camp with Cammer’s father. He stated that another attorney from his firm who did not practice criminal law had met with the Cammers early on and that he had “heard” that his colleague advised the Cammers that boot camp was a possibility. Trial counsel did not say when he had heard this or whether he believed it was true.
According to trial counsel, during meetings, Cammer’s father did all of the talking and was “adamant” that Cammer was not going to plead guilty and serve ten years in prison. Trial counsel believed that he had a duty to consult his client personally concerning the State’s offer but thought he was doing so during meetings with Cammer and his father. At the time, he did not think about speaking with Cammer alone since Cammer was present for all of the conversations. Trial counsel stated that he “probably” had an obligation to meet with Cammer alone and, in hindsight, does not believe it was Cammer’s decision to go to trial. But when asked during redirect examination whether Cammer ever indicated that he wanted to accept the plea offer, he responded: “By his silence he’s indicating to me that he did not.”
Cammer’s sole claim in his habeas petition is that his trial counsel was ineffective because he failed to adequately consult with Cammer and seek his opinion regarding the State’s plea agreement offer. Specifically, Cammer argues that his trial counsel performed deficiently in failing to consult with him alone and to adequately advise him, either alone or in his father’s presence, regarding the consequences of going to trial.
In order to prevail on a claim of ineffective assistance of trial
1. In evaluating trial counsel’s performance, American Bar Association (“ABA”) standards constitute “guides to determining what is reasonable.” (Citation and punctuation omitted.) Wiggins v. Smith,
Contrary to Cammer’s contentions, the record does not establish that trial counsel, by consulting jointly with Cammer and Cammer’s father, failed to ensure that the decision to reject the State’s plea agreement offer was Cammer’s. The record supports the habeas court’s factual findings that trial counsel believed that he was consulting with Cammer personally about the plea offer when he met with Cammer and Cammer’s father and that trial counsel took Cammer’s silence in the face of his father’s insistence on Cammer going to trial to mean that Cammer did not want to accept the offer. Cammer admitted that he never told trial counsel that he wished to
That trial counsel now believes that he should have handled his consultation with Cammer differently and that Cammer did not make the decision to go to trial does not mean that his representation fell outside of the broad range of reasonable professional conduct. “[A] claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (Citation and punctuation omitted.) Stokes v. State,
2. Although the decision whether to accept a proposed plea agreement must be made by the accused, “the accused should have the full and careful advice of counsel.” ABA Standards for Criminal Justice Prosecution and Defense Function, Standard 4.52 cmt. See also Lloyd, supra,
Cammer contends that his trial counsel’s advice was deficient
Given the foregoing, trial counsel did not fail in his duty to offer Cammer his informed advice regarding the State’s plea agreement offer.
Judgment affirmed.
Notes
Cammer attempts to cast trial counsel’s duties more broadly, citing Boria v. Keane,
[O]ften counsel can protect the client from disaster only by using a considerable amount of persuasion to convince the client that a plea which the client instinctively disfavors is, in fact, in his or her best interest. This persuasion is most often needed to convince the client that s/he should plead guilty in a case in which a not guilty plea would be destructive.
We disagree with Cammer that this is a case “almost exactly like” Boria, supra, in which the Second Circuit held that trial counsel was ineffective. The testimony of trial counsel in Boria established that he “never gave his client any advice or suggestion as to how to deal with the People’s offered plea bargain.”