David v. StateDavid v. State
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- Before:
- Andrews
Joseph Kelly David appeals from the trial court’s order denying his motion to withdraw his guilty plea to the offense of first degree homicide by vehicle and denying his motion in arrest of judgment attacking the validity of the indictment. For the following reasons, we affirm.
1. David pleaded guilty to the offense of homicide by vehicle in the first degree as set forth in
The two-prong test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to address claims that trial counsel was ineffective also applies to claims that a guilty plea attorney was ineffective. Hill v. Lockhart, 474 U. S. 52 (106 SC 366, 88 LE2d 203) (1985). Accordingly, David was required to show that his counsel’s performance was deficient and that, but for the deficiency, there was a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U. S. at 59; Williams v. Duffy, 270 Ga. 580, 581 (513 SE2d 212) (1999). In addressing claims that counsel’s performance was deficient, a court must determine whether counsel’s advice was reasonable under the circumstances, and must apply the strong presumption that counsel’s conduct fell within the wide range of reasonable professional conduct and that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Williams, 270 Ga. at 581; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). The trial court’s determination that a defendant was afforded effective assis *469 tance of counsel must be upheld on appeal unless clearly erroneous. Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).
David pleaded guilty under an agreement with the prosecutor that he would not be sentenced to more than seven years to serve, and after a presentence investigation, the trial court imposed a sentence of six years to serve. At the hearing on the motion to withdraw, David claimed his defense counsel failed to explain the plea agreement, promised him that he would not receive a sentence in excess of five years to serve, misled him into believing he could receive only probation, and misrepresented his eligibility for parole. David claimed that, if he had been told he could receive more than five years to serve, he would have insisted on going to trial. David also claimed he told defense counsel from the start that he did not want to plead guilty and wanted to go to trial on the charges. Defense counsel testified that, although he expressed hope that David would receive a sentence not exceeding five years to serve, he explained to David that he could receive a sentence of up to seven years to serve under the plea agreement, that he made no promises to David with respect to the sentence he would receive, and that he informed David of the applicable parole guidelines. He also testified that David consistently said he wanted to accept responsibility for the death of his passenger and plead guilty. The trial court, which acted as the finder of fact, accepted defense counsel’s testimony and concluded that defense counsel made no guarantees regarding sentencing, and that David was aware he could receive a sentence of up to seven years to serve. Boyd v. State, 275 Ga. 772, 776 (573 SE2d 52) (2002).
David further contends that, despite his desire to go to trial, defense counsel was unprepared for trial because he failed to properly investigate the case, preserve evidence, and hire an expert and file motions to challenge the State’s evidence regarding his alleged blood alcohol level. Defense counsel testified that he met with David on numerous occasions to discuss the case, visited the accident scene, gathered evidence including lab and police reports showing David’s blood alcohol level, and interviewed David and his wife, who was with David prior to and at the scene of the accident, to confirm there was evidence David had been consuming alcohol prior to the accident. Defense counsel also testified he discussed with David that the State indicted him on two alternative counts of vehicular homicide alleging he caused the death by operating the vehicle in violation of
*470 The evidence showed that defense counsel adequately evaluated the merits of the case so that he was able to advise David of his options and the consequences of pleading guilty. Thompson v. State, 208 Ga. App. 825, 826 (432 SE2d 250) (1993). “When a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision so to plead is voluntarily and knowingly made.” (Citation and punctuation omitted.) Walker v. Hopper, 234 Ga. 123, 125 (214 SE2d 553) (1975). The record contains evidence showing David’s desire to plead guilty and supporting the trial court’s conclusion that defense counsel satisfied this standard.
We find no clear error in the trial court’s determination that defense counsel’s performance was not deficient and that there was no basis for David’s claim that ineffective assistance of counsel prevented him from entering a knowing and voluntary guilty plea. Hill, 474 U. S. at 59; Williams, 214 Ga. App. at 106. The record of the plea hearing shows that David voluntarily and knowingly pleaded guilty to Count 1 of the indictment with an understanding of the nature of the charges and the consequences of his plea. 1 Green v. State, 265 Ga. 263 (454 SE2d 466) (1995). Accordingly, we find no abuse of discretion in the trial court’s denial of the motion to withdraw the guilty plea. Thomas v. State, 234 Ga. App. 652, 653 (507 SE2d 523) (1998).
2. David contends the trial court should have granted his motion in arrest of judgment by which he contended that the allegation in the indictment that he violated
David pleaded guilty to the offense of vehicular homicide as set forth in
Any person who, without malice aforethought, causes the death of another person through the violation of . . . Code Section . . . 40-6-391 . . . commits the offense of homicide by vehicle in the first degree.
Based on evidence that David was 17 years of age at the time he drove the vehicle in the accident and that his blood alcohol level was measured at 0.08 grams after the accident, the State charged that the statutory predicate for the offense of vehicular homicide was violation of subsection (k) (1) of
A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s *471 alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
Accordingly, the indictment alleged that David committed first degree vehicular homicide when he caused the death of a passenger in the vehicle he was driving through the violation of
Contrary to David’s contention, violation of
David contends that violation of
Finally, we find no merit in David’s contention that violation of subsection (k) (1) of
3. David claims the trial court erred by denying his motion in arrest of judgment in which he argued that his conviction for vehicular homicide violated his equal protection rights under the State and Federal constitutions.
As it did in August 1999 at the time of the subject vehicular homicide offense, subsection (k) (1) of
Because the constitutionality of a statute is an issue falling within the exclusive jurisdiction of the Supreme Court of Georgia (Ga. Const, of 1983, Art. VI, Sec. VI, Par. II), we transferred this case to the Supreme Court for consideration of the constitutional challenge while pointing out in the transfer order that the Supreme Court had previously decided an analogous constitutional challenge in
Barnett v. State,
270 Ga. 472 (510 SE2d 527) (1999), dealing with the constitutionality of
The Supreme Court considered our transfer order and returned the case to this Court with the following order: “Because the constitutional challenge raised has been previously addressed by this Court, this case is hereby returned to the Court of Appeals.”
We conclude the Supreme Court declined to exercise jurisdiction to consider the constitutional challenge raised by David because it concluded the challenge had been previously considered and rejected by its decision in
Barnett. Williams v. State,
273 Ga. 848 (546 SE2d 522) (2001). Accordingly, we find that David’s conviction for first degree vehicular homicide under
As the Supreme Court held in
Barnett
on an analogous equal protection challenge, if the statute at issue does not operate to disadvantage a suspect class or interfere with a fundamental right, it need only bear a rational relationship to a legitimate state purpose.
Barnett,
270 Ga. at 472. The disparate treatment under
Judgment affirmed.
Barnes and Adams, JJ, concur.
Notes
The State entered a nolle prosequi on Count 2 of the indictment alleging operation of the vehicle under the influence of alcohol to the extent that it was “less safe.”