A03A1403. CARSON v. THE STATE.
(592 SE2d 161)
BLACKBURN, Presiding Judge.
The unsavory motivation for Carson‘s action in both this Court and the court below is clear - Carson was hoping that he could delay his prosecution long enough for his victim to die and become unavailable to testify against him.
The record shows that trial counsel was appointed to represent Carson on March 15, 2001, and that he went to see Carson the next day. The testimony of both trial counsel and Carson conclusively established that counsel informed Carson that the State had not been able to locate the victim, who was elderly and had cancer, and that without the victim, the State‘s case was weak. Although Carson initially stated that his trial counsel had not discussed the victim‘s availability to testify with him at all, he later recanted: “Only thing [trial counsel] told me . . . he said tell you the truth, I wish he were dead. And then when I looked at him I said what? He said yeah. Because without him there‘s no case.” (Emphasis supplied.)
At the time the State made Carson a plea offer of “25 to do 15,” the State was aware that the victim might not survive until trial, and his whereabouts were unknown. Carson, by his own admission, was well aware that, without the victim, the State “had no case.” At the October 15, 2001 pretrial hearing, the trial court advised Carson that no negotiated plea would be accepted after that date. Carson, with full knowledge that he could receive a life sentence upon conviction in this case, rejected the plea offer.
Some time after Carson unequivocally rejected the State‘s plea offer, his victim was found by the State and was available to testify at trial, which began April 29, 2002. At trial, Carson complained that he was dissatisfied with the services of his trial counsel and did not want counsel to represent him. The trial court denied Carson‘s tactical motion for substitution of counsel and required him to go forward with his current counsel.
Carson then indicated that he was ready to accept the plea that the State had offered him months earlier. The prosecutor, however, informed the court that the court-imposed deadline for a negotiated
Carson argued that this Court should enforce the original plea offer. Because Carson did not accept the plea, there is no plea agreement to enforce. Carson knew that he might be sentenced to life in prison, but he also knew that if he agreed to the plea offer, he would be foreclosing the possibility that the man he had beaten and robbed might die before he could be brought to trial. Weighing these possibilities, he chose to reject the plea offer, and the integrity of our criminal justice system requires us to affirm the trial court‘s ruling.
In this appeal, Carson specifically contends that his trial counsel rendered ineffective assistance by failing to inform him that (1) he would receive a mandatory sentence of life without parole if he rejected a plea offer extended by the State and (2) the State intended to introduce certain damaging evidence against him if he chose to go to trial.
Under the standard established in Strickland v. Washington,1 one asserting his trial counsel‘s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel‘s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense.
Howard v. State.2 Carson has failed to make these necessary showings with respect to either one of his contentions.
We first address Carson‘s argument that his counsel failed to advise him that he could receive a mandatory life sentence. Carson was advised by his attorney of the possibility of a life sentence, and trial counsel made Carson aware of “the range of possible sentences” he faced if he rejected the plea. Although Carson‘s attorney did not explain that a mandatory life sentence was probable, he informed Carson that such result was possible. In other words, Carson knew “that the consequences of refusing the State‘s plea offer could be harsher than the consequences of accepting it.” (Punctuation omitted.) Sutton v. State;3 see also
Carson further contends that his trial counsel rendered ineffective assistance by failing to inform him about the details of the State‘s case against him. The record, however, clearly shows that this enumeration is patently without merit. The trial court‘s determination that Carson was not denied effective assistance of counsel is not clearly erroneous, and we affirm this ruling.
Our aim in reviewing the conduct of criminal prosecutions is to ensure that there is a level playing field for both the State and criminal defendants; the rights we uphold and the rules we enforce exist for the advancement and preservation of justice. Our criminal justice system is designed to ensure that a defendant‘s constitutional rights are protected, and that a fair trial is provided. It is the responsibility of the trial court to ensure that the system is not manipulated by any party, while protecting the defendant‘s constitutional and statutory rights. The trial judge here has acted responsibly in satisfying both obligations.
Judgment affirmed. Smith, C. J., Andrews, P. J., Ruffin, P. J., and Miller, J., concur. Ellington, J., concurs in the judgment only. Phipps, J., dissents.
PHIPPS, Judge, dissenting.
The evidence supports Carson‘s conviction, but I respectfully dissent from the majority‘s affirmance of Carson‘s mandatory sentence of life imprisonment without possibility of parole for his perpetration of two armed robberies. Although it is certainly within the province of the legislature to provide for severe mandatory sentences, we should not sanction their imposition unless the defendant has been afforded all of the rights and protections the law extends. Under the Sixth Amendment guarantee of effective assistance of counsel, Carson had a right to be told that if he rejected a plea bargain offered to
In moving for a new trial, Carson complained that his attorney had been ineffective in failing to inform him of the sentence he faced if he rejected the state‘s plea offer. The trial court denied Carson‘s motion, ruling that he had not carried his burden of showing ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel‘s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that but for counsel‘s unprofessional errors the result of the proceeding would have been different. [Cits.]5
The issue is a mixed question of law and fact; therefore, we accept the trial court‘s factual findings unless clearly erroneous, but we independently apply the law to the facts.6 In my opinion, the trial court incorrectly applied the controlling law to the undisputed facts.
Carson was charged with one count of armed robbery and two counts of aggravated assault on Thomas Curry, and with another count of aggravated assault on Skipper Luster. Although Carson had five prior felony convictions, including one for armed robbery, the state offered to let him plead guilty in exchange for a sentence of fifteen years imprisonment followed by ten years probation (referred to as “25 to do 15“) because of uncertainty as to whether Curry would be available to testify at trial. The record does not clearly establish the offense or offenses to which Carson would have pled guilty under the state‘s plea offer. After consulting with his court-appointed attorney, Carson rejected the plea offer.
The state subsequently gave the defense notice of its intent to seek recidivist punishment under
Both Curry and Luster testified at trial, and the jury found Carson guilty of one count of armed robbery and one count of aggravated assault on Curry. The court merged the aggravated assault conviction into the armed robbery conviction. Because of his prior armed robbery conviction, Carson was given a mandatory sentence of life imprisonment without possibility of parole under
Carson moved for a new trial, claiming that counsel had rendered ineffective assistance in failing to inform him that, if convicted of armed robbery, he would receive a sentence of life imprisonment without possibility of parole. Counsel testified that he had advised Carson of the possibility that he could be sentenced to life imprisonment; but, because he had not received the state‘s notice of intent to seek recidivist punishment until after plea negotiations had ended, he had not told Carson that a conviction of armed robbery would carry a mandatory sentence of life imprisonment without possibility
Although Lloyd v. State9 requires counsel to inform his client of the choices confronting him when the state has made a guilty plea offer, Williams v. Duffy10 holds that a defendant does not have to be told of his ineligibility for parole. Finding Duffy controlling, the trial court ruled that Carson had not carried his burden of showing ineffective assistance of counsel and denied his motion for new trial. Moreover, the court noted that the state did not file its notice of intent to seek recidivist punishment until after its plea offer had been rejected and that counsel did inform Carson that life imprisonment was a possible consequence of a conviction.
In Lloyd v. State, our Supreme Court held, as a matter of first impression, that “[o]bjective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.”11 But the Court in Lloyd further concluded that in order for prejudice to be shown, there must be “at least an inference from the evidence that the defendant would have accepted the offer as made or something similar.”12 “[P]rejudice can only be shown by some indication that the defendant was amenable to the offer made by the state.”13
Muff v. State14 and Whitehead v. State15 were decided when
Muff held that although the case involved counsel‘s failure to advise his client regarding the consequences of rejecting a plea, rather than failure to communicate a plea or to give accurate advice concerning the consequences of entering a guilty plea, “the Lloyd analysis controls our decision.”17 Whitehead also applied Lloyd in deciding whether counsel had been ineffective in advising his client to reject a plea bargain offered by the state. In Whitehead, and later in Sutton v. State,18 we held that the defendants had not been misled when they were told that life imprisonment was a possible consequence of entering a guilty plea, because uncertainty existed as to the applicability of mandatory life sentencing provisions.
In Hutchison v. State,19 a defendant who had entered a plea of guilty complained of counsel‘s failure to inform him that the offense to which he pled guilty was designated a “serious violent felony” which under
Hutchison, however, was overruled in Williams v. Duffy.20 The defendant in Duffy entered a negotiated plea of guilty to a charge of armed robbery in exchange for a recommended sentence of 15 years. In habeas proceedings, he claimed that his attorney had been ineffective in failing to advise him that, pursuant to
“eligibility or ineligibility for parole is not a ‘consequence’ of a plea of guilty, but a ‘matter of legislative grace’ or a ‘consequence of the withholding of legislative grace.’ (Cits.)” [Cit.] Thus,
OCGA § 17-10-6.1 (c) (3) would have only a collateral
effect on Duffy‘s sentence for armed robbery, in no way lengthening the sentence itself, but conditioning satisfaction of that sentence upon Duffy‘s incarceration for the designated 15-year period. [Cits.] There is no constitutional requirement that a defendant be advised of such collateral consequences in order for his guilty plea to be valid. [Cits.] If a defendant‘s actual knowledge of such collateral consequences is not a prerequisite to his entry of a knowing and voluntary guilty plea, his lack of knowledge of those collateral consequences cannot affect the voluntariness of the plea. (Cit.) Accordingly, counsel‘s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance. [Cit.]21
In Wallace v. State,22 the defendant was convicted of two counts of sale of cocaine and was given the maximum sentence of thirty years on each count because he was a felony recidivist. Defendant moved for a new trial, complaining of counsel‘s failure to inform him of the state‘s notice of intention to seek recidivist punishment under
Since Wallace, we have applied Duffy in a series of cases beginning with Taylor v. State,24 and ending with Pickard v. State.25 Those cases have rejected ineffective assistance of counsel claims grounded on the assertion that the defendant would have accepted a plea bargain offered by the state but for the fact that his attorney failed to timely inform him that, as a consequence of recidivist punishment, he would be ineligible for parole under
Because a defendant is entitled to know the range of possible sentences he faces before entering or rejecting a guilty plea,26 the decisions in Muff, Whitehead, and Wallace are, however, unaffected by Duffy. Therefore, although counsel is not ineffective for failing to
Although the prosecution argues that in this case defense counsel was not apprised that Carson faced a mandatory sentence of life imprisonment until the state filed its formal notice of intent to seek recidivist punishment following Carson‘s rejection of its plea offer, the record shows that counsel was put on notice of the state‘s intent to utilize all of Carson‘s prior convictions in aggravation of punishment under
The majority in this case states that “the rights we uphold and the rules we enforce exist for the advancement and preservation of justice,” that “[o]ur criminal justice system is designed to ensure that a defendant‘s constitutional rights are protected, and that a fair trial is provided,” and that “[i]t is the responsibility of the trial court to ensure that the system is not manipulated by any party, while protecting the defendant‘s constitutional and statutory rights.” In full agreement with these sentiments, I would affirm Carson‘s armed robbery conviction, vacate his sentence of life imprisonment without possibility of parole, and remand the case to the trial court for determination of whether it would have accepted a pretrial plea by Carson and given him a sentence of fifteen years imprisonment followed by
DECIDED DECEMBER 1, 2003 — RECONSIDERATION DENIED DECEMBER 16, 2003 —
Lynn G. Fant, for appellant.
Patrick H. Head, District Attorney, Maziar Mazloom, Amy H. McChesney, Assistant District Attorneys, for appellee.