Rosa Myra Cuvas was convicted by a jury of armed robbery (OCGA § 16-8-41), and she was sentenced to twenty years to serve ten in prison. 1 On appeal, she claims that she received ineffective assistance of trial counsel. She also contends that her sentencе amounted to cruel and unusual punishment inasmuch as she was 13 years old at the time of the offense. Finding no error, we affirm.
Viewed in the light most favorable to the jury’s verdict
(Drammeh v. State,
After directing the taxi to a dimly lit residential area, the passengers ordered the victim to stop and demanded money. The man in the back seat put a gun to the victim’s head and the man in the front seat took out a knife. According to the victim, Cuvas got out of the vehicle, opened the driver’s side door, checked the victim’s pockets, and took a cell phone.
After disconnecting the taxi’s radio, and taking $20 to $30, cell phones, and the keys to the vehicle, the two men and Cuvas fled on foot. The victim reconnected the radio and called a fellow cabbie, Jose Javier, for help. After Javier arrived, another driver radioed that he had seen three people walking. Based on this information, Javier drove the victim to a location approximately a mile from the site of the robbery. The victim saw Cuvas and the two men get into a car driven by a fourth person. The victim and Javier followed the car to а residence and then called the police.
1. Cuvas claims that she received ineffective assistance of trial counsel. We are not persuaded.
In order to prevail on a claim of ineffective assistance of counsel, a cоnvicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been diffеrent.
(Citation omitted.)
Coleman v. State,
*680 (a) Cuvas claims that her trial counsel rendered ineffective assistance by failing to obtain a DVD recording of Cuvas’s statement to the police. We disagree.
Defense counsel testified at the hearing on motion for new trial that he had filed a discovery demand in the case and the DVD recording of Cuvas’s statement was noted on the cover sheet of the State’s response, but he did not receive a copy of the DVD. He spoke with the prosecutor about the DVD, who represented that it would not be presented at trial. According to defense counsel, “that’s where it was left.” 2 The DVD was not introduced at trial. Defense counsel did not view the DVD until shortly before the hearing on Cuvas’s motion for new trial. The DVD was played for the trial court at the hearing on motion for new trial. 3
Cuvas argues that her trial counsel did not adequately prepare for trial because he did not view the DVD beforehand. Although counsel was aware that the DVD would not be played for the jury, evidence of Cuvas’s statement was introduced through the testimоny of the interviewing officer. Cuvas argues that by failing to review the DVD her counsel lost an opportunity to prepare a thorough, sifting, and meaningful cross-examination of the officer.
Trial counsel testified that he cross-examined the officer who took Cuvаs’s statement based on notes from his discussions with Cuvas, his investigator, the officer’s report, and the officer’s direct testimony. He maintained that he cross-examined the officer thoroughly with the intent to show “mistruth in [the officer’s] statements . . . and ... I was able to do so.”
4
Trial counsel also testified that if he had viewed the DVD before trial it would have been helpful, but he did not know if he would have asked additional questions on cross-examination. Assuming, but not deciding, that trial counsel’s failure to obtain and review the actual recording of Cuvas’s statemеnt to police constituted deficient performance, Cuvas does not show she was prejudiced thereby. It follows that she failed to establish ineffective assistance of trial counsel. See
Fuller v. State,
(b) Cuvas contends her trial counsel was ineffective (i) in failing to file a pre-trial motion to suppress evidence of her statement to police based on a violation of Miranda v. Arizona, 5 and (ii) in failing to pursue & Jackson-Denno 6 hearing to challenge the voluntariness of her statement. We disagree.
“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.)
Rivers v. State,
Nor doеs Cuvas show that her counsel was ineffective in failing to seek a
Jackson-Denno
hearing to suppress her statement. After detailing the numerous factors considered, the trial court found at the motion hearing that if a
Jackson-Denno
hearing had been held that Cuvas’s statements would have been found admissible notwithstanding that she was a minor. See
Medlin v. State,
*682 (c) Cuvas further argues that her trial counsel was ineffective because during the charge conference he failed to request a jury charge as to the voluntariness of her statement to police or the conditions precedent for consideration of her statement. We disagree.
During the charge conference, the trial court stated its impression that there was no issue as to voluntariness of Cuvas’s statement under
Jackson v. Denno
or as to whether she was informed of her constitutional rights, and trial counsel confirmed that he did not want a charge on those issues.
8
The officer’s testimony indicating that Cuvas had been informed of her rights and made her statement freely and willingly was not controverted. It was not reasonably probable that counsel’s failure to request a charge on those issues changed the outcome of the trial. See, e.g.,
Gonzalez v. State,
(d) Lastly, Cuvas suggests that her trial counsel’s performance was so lacking that it eliminated the need to inquire into whether she was рrejudiced thereby. We disagree.
Prejudice is presumed if a defendant is constructively denied counsel. See
Strickland v. Washington,
In this case, notwithstanding that trial counsel failed to review the DVD of Cuvаs’s statement to police, he discussed the statement with Cuvas directly and through an investigator and he reviewed the officer’s report of her statement. Counsel came to the conclusion that there were no legitimate issues with regard to the admissibility of the stаtement. He developed a theory of the defense, cross-examined State’s witnesses, argued to the jury on behalf of his client, and she was acquitted of two of the three felony charges.
*683 Considered in context, counsel’s failure to [review the DVD of her statement, to file a pre-trial motion to suppress her statement, to request a Jackson-Denno hearing, or to request charges with respect to the statement] is not a constructive denial of counsel, and [Cuvas] is not relieved of [her] burden of proving prejudice attributable to trial counsel’s error.
Machuca v. State,
2. Consistent with the statutory punishment for armed robbery, Cuvas was sentenced to twenty years to serve ten in prison. See OCGA § 16-8-41 (b), (d). She contends that her sentenсe is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 9
A presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.
(Footnote omitted.)
Pascarella v. State,
Cuvas was properly tried as an adult in superior court as she was alleged to have committed armed robbery with a firearm.
10
Although she was only 13 years old at the time of the robbery, she had no inherent right to be treated as a juvenile.
Bishop v. State,
We have previously upheld a sentence of ten years confinement imposed on a fifteen-year-old defendant for conspiracy to commit armed robbery.
Pascarella,
supra,
Judgment affirmed.
Notes
She was found not guilty of two counts of possession of a firearm or knife during commission of a felony.
There is no indication in the record that a transcript of the DVD was prepared before trial or that а transcript was reviewed by counsel.
Inasmuch as the actual DVD was not included in the record and transcripts submitted on appeal, we rely on the hearing on motion for new trial transcript in which the contents of the DVD are transcribed.
In his cross-examination of the officer, trial counsel showed that the officer wrote in his report of Cuvas’s interview that Cuvas would not identify who phoned for the. cab. This contrasted to the officer’s testimony that Cuvas admitted to contacting the taxi. The officer also testified on direсt that Cuvas had indicated she “lured” the taxi to the apartment complex. On cross-examination, the officer admitted that he had generated the term “lured” on his own.
Miranda v. Arizona,
Jackson v. Denno,
Cuvas does not cite to any authority relevant to the issue other than
Freeman v. Wilcox,
The pattern charge on conditions precedent to consideration of statement, referenced by the trial court, addresses the requirements, аmong other things, that the statement be voluntary and that the defendant knowingly gave up his or her constitutional rights. See Suggested Pattern Jury Instructions, Yol. II: Criminal § 1.32.50 (2007).
To the extent Cuvas’s argument can be characterized as a claim that the minimum sentencing requirement of OCGA § 16-8-41 is unconstitutional, the trial court did not discretely rule on the issue, and, if it had so ruled, a challenge to constitutionality of the statute is within the exclusive jurisdiction of our Supreme Court. See
Colton v. State,
“The superior court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed any of the following offenses: . . . (vii) Armed robbery if committed with a firearm.” OCGA § 15-11-28 (b) (2) (A).