Defendant Julius Muff was convicted by a jury of selling cocaine and received a mandatory life sentence due to a prior conviction for possession of cocaine with intent to distribute.
Deputy Charlese Barkley, an undercover agent for the Bibb County Sheriff’s Department, testified that she went to 1334 Third Street to purchase crack cocaine. When she arrived, a man without a shirt was on the porch, talking on a cordless phone. He walked down to her car, still talking on the phone, and she let him into the car because it was raining. Barkley waited while he finished his phone conversation. Another man came up to buy cocaine, and Barkley continued to wait while that purchase was completed. She then bought ten pieces of crack cocaine for $10 a piece. The man with the phone then left the car, and Barkley drove off. Within an hour of the purchase, Barkley identified defendant’s picture as that of the seller, picking it from a six-photograph lineup. Barkley also identified defendant at trial as the man from whom she bought cocaine.
Defendant presented evidence indicating that Barkley’s description of the man who sold cocaine actually fit his brother, who weighed about 20 pounds less than defendant, better than it fit him. Defendant also showed the jury a scar which he argued Barkley should have noticed if he had in fact been the man from whom she bought the cocaine. On rebuttal, however, defendant’s brother was brought into the courtroom and Barkley explicitly denied that he was the one who sold her cocaine.
1. Defendant first challenges the sufficiency of the evidence identifying him as the seller of the cocaine. Deputy Barkley identified defendant as the man who sold her the cocaine several times, without hesitation or equivocation, and further stated that defendant’s brother was not the seller. Barkley also testified that there was plenty of light at the time of the sale; that she saw the seller well that day;
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and that she again saw the seller a couple of days later. Viewing the evidence in the light most favorable to support the verdict, it is sufficient to allow a jury to find that defendant was the man who sold Barkley the cocaine beyond a reasonable doubt. See
Jackson v. Virginia,
2. In his second enumeration of error, defendant argues that his trial counsel was ineffective because he failed to inform the defendant that he faced a mandatory life sentence if he went to trial and was convicted. The State notified defendant of its intent to present a prior conviction for the purpose of sentencing, identifying the conviction by indictment number, court and date. However, the notice indicated the conviction was for possession of cocaine rather than possession with intent to distribute, and defendant’s trial counsel accepted this description and advised defendant accordingly. Defendant’s trial counsel acknowledged at the sentencing hearing that he had not told his client that he would necessarily face a life sentence if convicted. However, he further stated that because defendant maintained that he was the innocent victim of misidentification, he probably would not have encouraged defendant to accept a plea bargain even if he had been aware of the actual nature of the prior conviction. The trial judge agreed that defendant should not have pled guilty if he maintained his innocence, regardless of what was offered for his plea, and proceeded to sentence defendant to life. This discussion was simply a colloquy between counsel and thé judge during the sentencing hearing; however, no evidentiary hearing was held. Trial counsel filed a motion for new trial which was denied. Defendant has new counsel on appeal and raises this ineffective assistance issue here for the first time.
To show ineffective assistance of counsel, defendant must establish both that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See, e.g.,
Lloyd v. State,
“The defendant must further show that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.] Logically, such prejudice can only be shown by some indication that the defendant was amenable to the offer made by the state. Several state courts have summarily resolved this by assuming the defendant would accept any plea offer which was favorable when compared to the actual outcome. See for example
Lyles v. Indiana,
[
Although this case involves counsel’s failure to advise his client regarding the consequences of rejecting a plea rather than failure to communicate a plea, the
Lloyd
analysis controls our decision. In
Lloyd,
an evidentiary hearing yielded “the unmistakable conclusion that [the defendant] would
not
have accepted or even considered the offer to plead guilty to [a lesser crime],”
Judgment affirmed and case remanded with direction.