S08G1371. CLEVELAND v. THE STATE.
S08G1371
Supreme Court of Georgia
DECIDED MARCH 9, 2009.
285 Ga. 142 | 674 SE2d 289
SEARS, Chief Justice.
In this case, the prejudicial effect of the prior transaction evidence cannot be overstated. The truth of the victim‘s allegations was hotly contested, impeached by her own pre-trial recantations and denial of the allegations at trial. There was no physical evidence to substantiate that any sexual contact had ever occurred. There was testimony supportive of the victim‘s possible reasons for advancing false allegations, including the victim‘s own admission that she would lie to get what she wanted. In short, “the evidence was in sharp conflict and the evidence of prior conviction[] may have been the deciding factor in the jury‘s verdict.” Wimberly v. State, 180 Ga. App. 148, 150 (1) (348 SE2d 692) (1986). Accordingly, I must respectfully dissent.
I am authorized to state that Chief Justice Sears and Justice Carley join in this dissent.
DECIDED MARCH 9, 2009.
Brian Steel, for appellant.
David McDade, District Attorney, James E. Barker, James A. Dooley, Assistant District Attorneys, for appellee.
SEARS, Chief Justice.
In 2005, a Harris County jury convicted Sean David Cleveland of methamphetamine possession and related crimes. The trial court sentenced him to twenty years in prison with ten years to serve, and Cleveland filed a motion for new trial and amended motion for new
Cleveland was pulled over in Harris County on July 7, 2004, and arrested for driving on a suspended license. While conducting an inventory of the vehicle prior to its being towed, the officer found six individual bags of methamphetamine, a bottle containing red powder, digital scales, a glass smoking device, a straw with methamphetamine residue in it, and a garden hose with a smaller hose inside. The officer called Cleveland‘s residence to get someone to come and pick up Cleveland‘s dog. Two men came and were also arrested when methamphetamine was found in their vehicle.
On July 9, 2004, a search warrant was executed for Cleveland‘s home. Officers found items commonly used in connection with the manufacture of methamphetamine: a bottle of pure ephedrine, burn piles, empty cold medicine packages, strike plates from match books, and security cameras located around the premises. During the search, Cleveland, who was out of jail on bond, returned home and was informed that a search was being performed pursuant to a warrant.
Cleveland was indicted for possession of methamphetamine with intent to distribute, criminal attempt to commit trafficking in methamphetamine, driving on a suspended license, and no proof of insurance. Cleveland was offered and rejected a plea bargain for probation and a fine. Trial commenced on November 28, 2005. During jury selection, defense counsel learned for the first time that the State‘s evidence included items seized in the house search. Counsel filed a motion to suppress, which was denied, and the trial proceeded. Cleveland was convicted of possession with intent to distribute, criminal attempt to commit trafficking, and no proof of insurance. He was sentenced to twenty years in prison with ten years to serve.
At the hearing on the motion for new trial, defense counsel admitted that he failed to review the State‘s file as allowed under the prosecutor‘s “open file” policy, so he did not realize evidence gathered at the home would be used at trial. Cleveland testified that had he known evidence obtained from his home would be used
The Court of Appeals found that although counsel‘s performance was objectively unreasonable, Cleveland was not prejudiced, and the convictions should therefore stand. The Court of Appeals reasoned that the evidence supports a finding, implicit in the trial court‘s ruling, that Cleveland failed to show a reasonable probability that he would have pled guilty but for counsel‘s errors. We granted certiorari to review the Court of Appeals’ application of the decision in Lloyd.
In Lloyd, we recognized, based on governing United States Supreme Court precedent, that the Sixth Amendment guarantees a criminal defendant‘s right to competent counsel performing to the standards of the legal profession in deciding whether or not to plead guilty.3 The Supreme Court held over sixty years ago that “[p]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.”4 The plea bargaining process is a critical stage of criminal proceedings where an attorney‘s involvement is crucial because “[a]vailable defenses may be as irretrievably lost, if not then and there asserted.”5 “Indeed, with plea bargaining the norm and trial the exception, for most criminal defendants [the plea process] is the critical stage of their prosecution.”6
The two-part test of Strickland v. Washington ordinarily applies to claims of ineffective assistance of counsel in the plea process.7 Thus, to prevail on such a claim, the defendant must demonstrate both that trial counsel‘s performance was unprofessional, and that but for counsel‘s errors, the outcome of the proceedings would have been different.8 Where, as here, the defendant demonstrates that counsel‘s representation in the plea process “fell below an objective
The district attorney contends that the Court of Appeals erred in applying the prejudice prong of the Strickland test. According to the district attorney, the Court of Appeals should have focused its prejudice inquiry on whether the outcome of the trial would have been different but for counsel‘s deficient representation, not whether Cleveland would have pled guilty but for his attorney‘s errors. However, this argument is foreclosed by the Supreme Court‘s decision in Hill v. Lockhart and our own holding in Lloyd.
In Hill, the Supreme Court held as follows:
In the context of guilty pleas, the . . . second, or “prejudice,” requirement . . . focuses on whether counsel‘s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.11
In Lloyd, we held that the same analysis governs in the converse situation, i.e., where the defendant‘s complaint is that he went to trial instead of pleading guilty because of counsel‘s deficient representation.12 We did so despite our recognition that “[t]here is a vast difference between what happens to a defendant when he pleads guilty as opposed to what occurs when a plea agreement is rejected,” and that “[t]he rejection of a plea agreement, in most instances, will result in the defendant going to trial with all of the concomitant constitutional safeguards that are part and parcel of our judicial process” while accepting a plea agreement “waives many of these protections.”13 Thus, the proper question at the prejudice step is whether Cleveland demonstrated that, but for counsel‘s deficient performance, there is a reasonable probability that he would have accepted the State‘s plea offer.14
We held in Lloyd that in order to find prejudice in this type of situation, there must be “some indication that the defendant was
According to Cleveland, the italicized language reveals this Court‘s intent “to lower the evidentiary burden in showing prejudice by a defendant who has demonstrated that he received deficient performance in regards to a plea offer.” Cleveland argues that in Lloyd, we “did not require [the] defendant to make a showing by a preponderance of the evidence that he would have accepted the plea offer if he had been given effective assistance of counsel” and instead crafted a rule “essentially giving [the] defendant the benefit of the doubt where there is some evidence to support his assertion that he would have accepted a plea offer.” Cleveland explains that we did this because of “the difficulties faced by a defendant in trying to prove what he would have decided if properly advised in regards to a plea offer.”
The Court of Appeals rejected Cleveland‘s interpretation of Lloyd, and so do we. In Lloyd, we merely noted that the evidence presented to show ineffective assistance of counsel failed to support even an “inference” that the defendant would have accepted the plea offer, much less amounted to the affirmative demonstration of prejudice required by the second prong of the Strickland test.18 We did not intend by this statement to lower the evidentiary burden for establishing Strickland prejudice in the plea bargain context. Thus, we agree with the Court of Appeals’ interpretation of Lloyd:
The above-quoted language should not be used to alter the well-established “clearly erroneous” standard of review for ineffective assistance of counsel. Simply because an inference “could be drawn even where the evidence is disputed or unclear on this question,” does not mean that a trial
court is required to do so in cases where the evidence is disputed. . . . [W]e decline to apply this language from Lloyd to find prejudice in this case merely because the defendant testified after the fact that he would have accepted the State‘s plea offer but for counsel‘s ineffective assistance.19
The sum total of Cleveland‘s evidence that he would have accepted the plea offer but for his counsel‘s deficient performance is the following exchange between Cleveland and his new counsel at the motion for new trial hearing:
Q. ... Now, why didn‘t you take that offer?
A. Well — I guess, dumb.
Q. Well, did you know they were going to introduce evidence against you —
A. No, sir.
Q. — seized at — if you had known that they were going to introduce evidence that was seized from the house, would you have taken the plea offer?
A. Yes, sir. One year probation, thousand dollar fine. I‘ve been down 16 months now.
Unsurprisingly, the trial court did not find Cleveland‘s after-the-fact, self-serving assertion credible, just as the jury had rejected Cleveland‘s false claims at trial that he had nothing to do with the extensive drug manufacturing materials found in his house and van.20 Decisions regarding credibility are uniquely the province of the trier of fact.21
The record supports the trial court‘s finding that Cleveland failed to demonstrate, through his testimony at the motion for new trial hearing or otherwise, that but for his counsel‘s failure to avail himself of the State‘s open file policy, there is a reasonable probability that Cleveland would have accepted the State‘s pretrial plea offer. Before, during, and after trial, Cleveland adamantly and consistently insisted that he had nothing to do with the drugs and other items that formed the basis for his convictions. After rejecting a pretrial
Cleveland failed to carry his burden of proving a reasonable probability that, but for counsel‘s deficient performance, he would have pled guilty. Accordingly, he failed to show Strickland prejudice, and the trial court was correct to deny his motion for new trial.
Judgment affirmed. All the Justices concur, except Hunstein, P. J., who dissents.
HUNSTEIN, Presiding Justice, dissenting.
This case involves an ineffective assistance of counsel claim raised in regard to appellant Sean David Cleveland‘s decision to reject a plea offer, consisting of probation and a fine, and instead proceed to trial where, upon conviction, he faced a mandatory minimum sentence of ten years imprisonment. I agree with the majority and the Court of Appeals that appellant established that his defense counsel‘s performance was objectively unreasonable for purposes of the attorney competence prong of the Strickland v.
The following facts are necessary to an understanding of this case. Appellant was stopped for driving a van with no tag on it and arrested for traffic violations. An inventory search of the van revealed drugs and drug paraphernalia behind the driver‘s seat and inside a cigarette purse located in the rear of the van on the passenger side. As noted by the Court of Appeals, the items in the van “were either not visible or immediately recognizable as contraband.” Cleveland v. State, 290 Ga. App. 835, 838 (660 SE2d 777) (2008). Additionally, appellant claimed that the van was used primarily by another person and any contraband inside it belonged to that person.
Appellant, who had no previous criminal record, was charged with possession with intent to distribute methamphetamine and criminal attempt to traffic in methamphetamine, along with misdemeanor traffic offenses. The felony charges, however, were not based solely upon the evidence seized during the traffic stop but were also based upon incriminating evidence seized during a subsequent search of appellant‘s home. The evidence seized in the search of the home included, inter alia, “pure distilled ephedrine in a bottle in the home‘s refrigerator, a straw with residue in the bedroom, and numerous other items commonly used in the manufacture of methamphetamine in a burn pile on the property.” Cleveland v. State, supra, 290 Ga. App. at 837. Surveillance cameras throughout the property and a surveillance monitoring device were also discovered. Id.
As detailed in the Court of Appeals’ opinion, Cleveland v. State, supra, 290 Ga. App. at 838, defense counsel failed to discover that the State‘s case against appellant included any evidence other than that obtained during the traffic stop until after the start of appellant‘s trial. Thus, it is uncontroverted that defense counsel did not know about the evidence seized during the search of appellant‘s home prior to trial when appellant was offered a plea deal by the State that involved only probation and a fine, with no jail time. Counsel‘s advice
Compounding the errors caused by counsel‘s deficient performance in regard to the failures to examine the State‘s file in a reasonably professional manner and to provide meaningful advice in regard to the State‘s plea offer, the record establishes that defense counsel never sought to renew plea negotiations with the State after counsel learned about this critical evidence against his client.23 The prosecutor stated at the new trial hearing that he was never approached by defense counsel on appellant‘s behalf “about a different plea deal, or going back to the old plea deal, or anything else like that” at any time after defense counsel learned about the evidence from the search of appellant‘s home. The prosecutor‘s statement confirmed appellant‘s own testimony that defense counsel did not discuss making any sort of plea agreement with the State after they discovered the evidence from the home search would be used.24 Under these circumstances, I would recognize that defense counsel also performed deficiently by failing to approach the prosecutor about renewing plea negotiations after counsel learned about the incriminating evidence from the home search.
Appellant was tried and convicted of the felony charges. He was given the ten-year mandatory minimum sentence for attempted trafficking in methamphetamine25 and a consecutive ten-year sentence for possession with intent to distribute methamphetamine. Appellant timely moved for a new trial asserting, inter alia, ineffective assistance of counsel, and, at the hearing on his motion, gave testimony in which he acknowledged he would have accepted the State‘s plea offer had he known that the State was going to introduce
The majority and the Court of Appeals both correctly held that the “reasonable probability” standard applies to the assessment of the prejudice prong in those ineffectiveness claims based on rejected guilty pleas and that this standard was not altered by language in Lloyd v. State, supra, 258 Ga. at 648-649 (2) (b). I fully concur with this holding.27 However, I dissent from the majority‘s opinion and would reverse the judgment of the Court of Appeals because I find, based on my review of the record, that they both incorrectly assessed the evidence to conclude that appellant failed to establish a reasonable probability that he would have accepted the State‘s plea had defense counsel properly advised him about all of the evidence in the State‘s case against him.
I address the five evidentiary items set forth by the Court of Appeals for its holding, see Cleveland v. State, supra, 290 Ga. App. at 839, because, although those items were not directly adopted by the majority, neither were they expressly repudiated. The Court of Appeals first identified appellant‘s testimony at the hearing on the motion for new trial that he was “dumb” in declining the State‘s offer. That “dumb” decision, however, predated appellant‘s awareness that the State would be using the evidence seized from his home against him and thus it cannot shed any possible light on whether appellant would or would not have accepted the offer had he known of the home-search evidence.28 The Court of Appeals next referenced
Reserving, for the moment, the third item, the Court of Appeals next pointed to the fact that appellant, after learning during jury selection that the home-search evidence would be used against him, “did not seek to renew the earlier plea offer after learning about the true nature of the State‘s case.” Cleveland v. State, supra, 290 Ga. App. at 839. Appellant is not a lawyer and, prior to the events at issue, had no criminal record. He could not reasonably have been expected to know, once his trial had already started, that plea negotiations could still be pursued so as to request defense counsel to renew them. Appellant certainly could not have initiated any renewed negotiations on his own without benefit of counsel and, as discussed earlier, the record is clear that counsel performed deficiently by failing to take any steps on behalf of his client to re-initiate negotiations. This evidentiary item utterly fails to support the Court of Appeals’ conclusion that there is no reasonable probability appellant would have accepted a plea had he known “the true nature of the State‘s case.” Id.
Given that the State was never approached about renewing the plea after appellant learned of the critical evidence during jury selection, the Court of Appeals’ third fact is wholly unpersuasive, inasmuch as the prosecutor‘s statement that appellant was “adamant about going to trial,” id., necessarily reflected appellant‘s uninformed understanding of his legal situation prior to trial.
Finally, the Court of Appeals relied upon the showing in the record that appellant “knew that the police searched his house.”
The majority does not address these “facts” on which the Court of Appeals relied but instead grounds its holding on the basis that the “sum total” of appellant‘s evidence consisted of his “after-the-fact and self-serving” assertion that he would have pled guilty except for counsel‘s deficient performance. Maj. Op., p. 147. I agree with the majority that appellant‘s assertion, like most testimony by witnesses who are parties, is likely to be self-serving and that the self-serving nature of the testimony goes to his credibility. However, I disagree with the majority that appellant‘s testimony stands alone in the record. The majority‘s analysis incorrectly overlooks two intercon-
Because appellant was offered but then rejected the State‘s no-jail-time plea, the significant disparity between the plea terms and mandatory minimum sentence appellant faced is not compelling in and of itself. Compare, e.g., Cullen v. United States, supra, 194 F3d at 407-408. But that rejection was based on appellant‘s uninformed understanding that only the evidence seized during the traffic stop would be used against him at trial. As noted earlier, that evidence was either not visible in the van or did not appear to be contraband. Cleveland v. State, supra, 290 Ga. App. at 838. Given the access others had to the van, its primary use by another and the nature and location of the evidence seized, appellant‘s rejection of the State‘s plea offer was not unreasonable. However, the situation changes completely when the incriminating evidence derived from the search of appellant‘s home is factored into the equation. That evidence — the bottle of pure distilled ephedrine found in the kitchen refrigerator, the smoking devices located in the office and bedroom, the meth-manufacturing items found in the burn pile, the surveillance cameras and monitoring devices discovered throughout the property — could not be explained away like the van-search evidence. It was visible; it was pervasive; it was, quite simply, overwhelming evidence of guilt. When that evidence is taken into consideration, no competent attorney would consider advising a client to reject a probation-only plea deal when a mandatory, ten-year minimum sentence was the near-certain outcome of trying the case to a jury.
In the context of guilty pleas, the prejudice prong of the Strickland v. Washington test requires only that a defendant establish a reasonable probability that counsel‘s constitutionally ineffective performance affected the outcome of the plea process. See generally Hill v. Lockhart, 474 U. S. 52, 58-59 (106 SC 366, 88 LE2d 203) (1985). “‘“‘A reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Cit.)’ [Cit.]” Upton v. Parks, 284 Ga. 254, 255 (664 SE2d 196) (2008). In this case, because of counsel‘s ineffective performance, appellant did not know the
DECIDED MARCH 9, 2009.
James D. Lamb, for appellant.
J. Gray Conger, District Attorney, William D. Kelly, Jr., Assistant District Attorney, for appellee.