Noble appeals from his convictions and sentences on charges of armed robbery, OCGA § 16-8-41 (a), kidnapping, OCGA § 16-5-40 (a), and possession of a firearm during the commission of a crime involving the person of another, OCGA § 16-11-106 (b) (1).
The victim was accosted at a pay telephone by three men who told him to give them his car keys. One of the men forced the victim into his own car at gunpoint, and he was driven away and robbed. He identified a man named Thurmond as the one who held the gun on him. Noble accompanied Thurmond and twice told him to shoot the victim. The third man was not identified. The robbers eventually stopped the car and told the victim to get into the trunk, but he was able to escape.
The stolen car was recovered in North Carolina after it had run off the road. Investigation of the accident led to Noble’s arrest. Thurmond was also arrested in North Carolina but Noble was tried in Georgia alone.
1. Noble enumerates as error the denial of his motion for new trial on the ground of ineffective assistance of counsel in that trial counsel did not subpoena Thurmond, who Noble claims was a material witness because he allegedly would have confessed to the crimes and absolved Noble of involvement.
To prevail on a claim of ineffectiveness of counsel, a defendant must first show “that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. [Cit.] ‘There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.’ [Cit.]”
White v.
State,
At the hearing on the motion, Noble testified that he had overheard Thurmond confess to the police in North Carolina that he had acted alone in the armed robbery and kidnapping for which Noble was convicted. Noble also testified that Thurmond would have testified that Noble was in Thurmond’s house at the time the crime was committed.
Noble’s trial counsel testified that he did not believe Thurmond should be called because he was in custody in North Carolina after pleading guilty to a crime very similar to the one for which Noble was tried. That crime occurred at a motel in North Carolina where Noble and Thurmond, among others, were staying together under fictitious names, and it apparently was committed close in time to Noble’s arrest. Counsel believed this information, which in his opinion was prejudicial, would necessarily be revealed if Thurmond testified. He also testified he did not know exactly what Thurmond would testify but assumed his North Carolina confession was not exculpatory of Noble because the State had not provided it in response to Noble’s Brady motion. He discussed the situation with Noble, who agreed with the decision not to pursue Thurmond’s testimony.
The court specifically found counsel’s version more credible than Noble’s. This finding on conflicting evidence was not clearly erroneous. See
Smith v. State,
2. Noble alleges error because one judge presided throughout the trial and pronounced guilt, but a different judge pronounced sentence. Noble has not shown how this enumeration was preserved for appellate consideration as required by Rule 27 (a) (1), and he did not present this issue in the trial court. A separate sentencing hearing was held and he noted the appearance of the second judge but did not object. The general rule is that “the sentencing trial judge in reaching his sentence should have heard the entire case as well as additional evidence in extenuation, mitigation, and aggravation of punishment.”
Strickland v. State,
In Strickland, the original judge left the trial after the first of two days because of illness. The parties agreed to have a second judge complete the trial, and the defendant’s agreement to the procedure was placed on the record. After the defendant was pronounced guilty he consented to have sentence imposed without a presentence investigation, but the judge stated he would wait until the next time he held court in that county. When that day arrived, however, the first judge conducted the sentencing. Although the defendant noted the appearance of the original judge, he made no objection. Strickland enumerated as error both allowing the substitution in the first instance and allowing the original judge to return for sentencing. The court held it was error to allow the first judge to return for sentencing because the parties had stipulated that the second judge would “conclude the trial,” which included sentencing. Id. at 476 (1). By giving effect to the earlier stipulation, the court recognized that a defendant may agree to a substitution of judges.
In
Griner v. State,
Each of these cases recognized that a defendant may agree to a
substitution of judges, although in each there was an affirmative agreement. However, an express agreement to substitution is not necessary to show waiver. If a defendant does not object to sentencing by the substitute judge, he
Finding waiver by silence is consistent with the general rule in other jurisdictions that review is waived by a failure to object. See
Commonwealth v. Clay,
If the enumeration is seen as an attack on the sentence itself rather than on the substitution of the judge, it was still waived. While appeal may be taken from a void sentence even if no objection was made in the court below,
State v. Baldwin,
Nor is there a rule of Georgia appellate practice that
any
sen-
fencing issue is nonwaivable. Appellants have waived a variety of enumerations concerned with sentencing by their failure to object in the trial court: imposition of consecutive sentences for two crimes when one was allegedly a lesser included offense of the other,
Alonso v. State,
Noble also contends the sentencing judge improperly used a presentencing report as evidence in aggravation to fix the length of the sentence, and without sufficient notice to the defense. See OCGA §§ 42-8-29; 42-8-34 (b). First, it is Noble’s responsibility
Judgment affirmed.