Hantz v. StateHantz v. State
- Reporters:
- , , ,
- Before:
- McFadden, Miller, McMillian
Lisa Hantz was convicted of driving under the influence of alcohol to the extent she was a less safe driver (“DUI”) and speeding. She appeals, claiming that her trial counsel was ineffective in failing to file a plea in bar.1 Because a single written judgment of conviction covers both her conviction for DUI and her plea to speeding, there was no basis for a plea in bar. The failure to file such a meritless plea does not constitute ineffective assistance of counsel. Accordingly, we affirm.
Construed in favor of the verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence showed that at approximately 4:00 a.m., on December 28, 2014, a state patrol trooper saw Hantz driving her car on Interstate 75 in heavy rain at a
Thereafter, the state charged Hantz by accusation with the offenses of DUI and speeding. Hantz, with the assistance of counsel, pled not guilty to the charges and requested a jury trial. The case was called for trial on the morning of April 22, 2015. Immediately prior to selecting a jury, Hantz and the state informed the court that she was going to enter a negotiated guilty plea to the speeding offense and proceed to trial only on the DUI charge. The court then held the plea hearing, accepted Hantz’s oral guilty plea to the speeding charge, and orally announced that it would follow the state’s sentencing recommendation of 12 months probation and a $250 fine. At that time, however, Hantz did not sign or tender a written guilty plea to speeding and the trial court did not enter a final written judgment of conviction and sentence on the speeding charge. Rather, immediately after the plea colloquy, the parties proceeded with the jury selection for the DUI trial. Once the jury was selected, the case stood in recess until the following morning.
The next day, April 23, 2015, the DUI charge was tried before the jury, which found Hantz guilty of the charge. Immediately after receiving the verdict and discharging the jury, the court held the sentencing hearing. At the conclusion of the hearing, the court orally announced a 12-month probated sentence for the DUI offense and stated that such sentence would run consecutive to the 12-month sentence for the speeding offense to which Hantz had pled guilty. Thereafter, on the same day, Hantz signed her written guilty plea to speeding, that written plea was filed in open court, and the trial court issued a single written order entering the judgments of conviction and sentences for the DUI and speeding offenses.
Hantz’s trial attorney filed a motion for new trial, challenging the sufficiency of the evidence and an evidentiary ruling. The trial court denied the motion, and trial counsel filed a notice of appeal. Trial counsel subsequently withdrew from the case, and new appellate counsel was appointed.
On appeal, Hantz claims that her trial counsel was ineffective in failing to file a plea in bar to prohibit the state from prosecuting the
Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, our appellate courts remand the case to the trial court for an evidentiary hearing on the issue. . . . Remand is not mandated[, however,] if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 [SCt] 2052, 80 LE2d 674) (1984). Under Strickland, a defendant must show that trial counsel’s performance was professionally deficient, and but for counsel’s unprofessional errors, there exists a reasonable probability that the outcome of the proceeding would have been more favorable.
Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009) (citations and punctuation omitted).
In the instant case, we need not remand the case to the trial court for an evidentiary hearing because we can determine from the record that Hantz cannot establish ineffective assistance of counsel. In support of her ineffectiveness claim, Hantz relies on
prosecution is barred if the accused was formerly prosecuted for a different crime . . . [and] such former prosecution . . .
[r]esulted in either a conviction or an acquittal and the subsequent prosecution . . . is for a crime with which the accused should have been charged on the former prosecution[.]
(Emphasis supplied.) In this case, contrary to Hantz’s argument, her guilty plea to speeding prior to the DUI trial did not result in a conviction.
As expressly defined in the criminal [c]ode, a “conviction” includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.
OCGA § 16-1-3 (4) . . . . [T]hus, a “[c]onviction” is not the verdict [or guilty plea]; it is the judgment [entered] on the verdict or guilty plea.
Dorsey v. State, 259 Ga. App. 254, 256 (576 SE2d 637) (2003) (citations and punctuation omitted).
Here, the trial court did not enter a final judgment of conviction on Hantz’s oral guilty plea at the plea hearing. Rather, the judge simply announced that he would accept the plea and would impose the 12-month probated sentence recommended by the state. “An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is. This is because what the judge orally declares is no judgment until it has been put in writing and entered as such.” Allen v. State, 333 Ga. App. 853, 854 (1) (777 SE2d 699) (2015) (citations and punctuation omitted). See also
As recounted above, the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense. “Consequently, the appellant has not been subjected to any former prosecution within the meaning of
Judgment affirmed. Miller, P. J., and McMillian, J., concur.