WILLIAMS v. THE STATE
A16A0497, A16A0498
Court of Appeals of Georgia
June 9, 2016
787 SE2d 333
DOYLE, Chief Judge.
a non-particularized motion to suppress, a motion reserving the right to file additional motions, and a motion for new trial.
Martinez makes general assertions that his trial counsel should have done more, but at the hearing on the motion for new trial, he did not proffer what additional investigation would have revealed nor how any such information could have led to a different result. Thus Martinеz failed to proffer any witnesses or other evidence to show how additional preparation would have led to useful information for trial. “In the absence of offering such evidence at the motion for new trial hearing, appellant cannot show prejudice.” Powell v. State, 297 Ga. 352, 357 (5) (d) (773 SE2d 762) (2015) (citations omitted).
Judgment affirmed in part and reversed in part, and case remanded for resentencing. Ellington, P. J., and Mercier, J., concur.
DECIDED JUNE 9, 2016.
Lon P. Kemeness, for appellant.
C. Paul Bowden, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellee.
WILLIAMS v.
A16A0497, A16A0498
Court of Appeals of Georgia
June 9, 2016
787 SE2d 333
DOYLE, Chief Judge.
Stacey Donnell Williams was charged in Gwinnett County Superior Court with two unrelated counts of armed robbery.1 After the charges were severed, Williams was convicted on Count 2, and he entered a negotiated guilty plea as to Count 1. In Case No. A16A0497, Williams appeals the trial court‘s denial of his motion for nеw trial as to Count 2, arguing that (a) his constitutional right to be present was violated when he was absent from a calendar call; (b) he was entitled to a discharge and acquittal because the State failed to comply with his speedy trial demand; and (c) trial counsel was ineffective by failing to move for discharge and acquittal and by failing to object to certain evidence going out with the jury. In Case No. A16A0498, Williams appeals the denial of his motion to withdraw his guilty plea as to Count 1, arguing that (a) the strength of the evidence did not negate his innocence; (b) trial counsel was ineffective by recommending that he accept the plea and by failing to move for discharge and acquittal; and (c) he was entitled to discharge and acquittal because the Statе failed to comply with his statutory speedy trial demand. For the reasons that follow, we affirm both cases.
Viewed in favor of the verdict,2 the record shows that on August 31, 2012, Franshaun Colvin called Williams and asked to purchase drugs from him. As arranged, Colvin took the bus to a gas station in Gwinnett County, where Williams picked him up and drove him to an apartment complex. When they arrived at the complex, Williams left Colvin in the
Colvin tried to find Williams‘s apartment, but called the police when he was unable to locate it. When he first relayed to police the events of the robbery, Colvin omitted that he intendеd to purchase drugs from Williams, but he then conceded that he was meeting Williams to do so. Police obtained a search warrant for Williams‘s residence, where they found a small, silver handgun concealed behind the couch.
On December 5, 2012, in a single indictment, the State charged Williams with two counts of armed robbery: Count 1 alleged that on July 31, 2012, Williams and a co-defendant committed armed robbery of Matthew Barrett; Count 2 alleged the August 31, 2012 armed robbery of Colvin. On January 7, 2013, Williams‘s appointed counsel, Thomas Wight, filed a statutory demand for speedy trial.
On March 22, 2013, Wight moved to withdraw as counsel for Williams, stating that he was taking an extended absence from the practice of law beginning April 1, 2013, and that attorney Dawn Belisle had agreed to defend Williams. Belisle later testified that she agreed to represent Williams on the express condition that Williams withdraw his speedy trial demand, and Wight agreed, telling her that Williams was going to do so. Belisle told Williams that she was going to request a continuance, and he agreed.
On April 16, 2013, Belisle appeared at a calendar call on Williams‘s behalf, where the following colloquy ensued:
[PROSECUTOR]: Your Honor, the next case is Stacey Donnell[ ] Williams, 12-B-5923-7. Your Honor, it is my understanding that the Speedy Trial Demand has been withdrawn on that case.
[BELISLE]: Correct, Judge. And as the [c]ourt knows, after inheriting this case, I would ask for a continuance on this case.
[TRIAL COURT]: Yes, I just did an order appointing you when Mr. [Wight] withdrew[,] so I‘ll continue that one and give you a chance to catch up. . . .
Thereafter, on April 22, 2013, the trial court entered an order granting Wight‘s motion to withdraw and appointing Belisle to defend Williams.
In December 2013, Williams was tried by a jury on Count 1 only, but the trial court entered a mistrial after the jury was unable to reach a verdict. In May 2014, Williams was tried by a jury on Count 2, and they found him guilty of armed robbery. On June 10, 2014, Williams filed his initial motion for new trial.
On June 25, 2014, Williams was re-indicted for the July 31, 2012 armed robbery of Matthew Barrett (Count 1 on the original indictment). On March 19, 2015, the trial court sentenced Williаms to serve 15 years in prison as to Count 2.3 On March 17, 2015, Williams entered an Alford4 plea to robbery as a lesser included offense of the newly indicted armed robbery charge, and he was sentenced to serve five years concurrent with his sentence in the first indictment.
On May 28, 2015, Williams, through newly appointed counsel, moved to withdraw his plea. On September 28, 2015, following a hearing, the trial court denied Williams‘s motion for new trial, and on October 9, 2015, it entered an order denying his motion to withdraw his guilty plea. These appeals followed.
Case No. A16A0497
In several enumerations of error, Williams contends that the trial court erred by denying his motion for new trial as to his armed robbery conviction in Count 2.
1. Williams argues that he was entitled to a discharge and acquittal on Count 2 because the State failed to comply with his statutory speedy triаl demand, which he contends
As aforementioned, after meeting with Williams and getting his approval for a continuance, Belisle appeared on his behalf at the April 16, 2013 calendar call and orally informed the trial court that Williams had withdrawn his speedy trial demand. This representation resulted in a waiver of Williams‘s demand for speedy trial, notwithstanding the fact that Williams was not presеnt at the calendar call.5 In so holding, we reject Williams‘s argument that he “did not have valid legal counsel” at the April 16, 2013 calendar call. Wight had filed a motion to withdraw, specifically indicating therein that Belisle was willing to defend Williams, Williams had met with Belisle and agreed to a continuance, Belisle appeared on Williams‘s behalf at the calendar call, making representаtions on his behalf, including requesting a continuance, and the trial court specifically stated at the calendar call that he had “[done]” an order appointing Belisle as counsel. Under these circumstances, we conclude that Belisle represented Williams at that proceeding despite the fact that the court did not enter the written order appointing her until April 22, 2013.
2. Williams argues that his constitutional right to be present at trial was violated when he was not in the courtroom at the April 16, 2013 calendar call. We find no basis for reversal.
The federal and Georgia Constitutions demand that a criminal defendant has a right to be present at all critical stages of the proceedings against him. A critical stage in a criminal prosecution is one in which а defendant‘s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way. Although denial of the federal constitutional right to be present is subject to harmless error review on direct appeal, the same is not true for claims of violation of the right to be present under the Georgiа Constitution. Even so, this right exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant‘s absence.6
Further,
the constitutional right to be present is not violated when the defendant‘s absence occurs during conferences addressing legal matters to which the defendаnt cannot make a meaningful contribution. . . . [T]he right is waived if the defendant personally waives it in court; if counsel waives it at the defendant‘s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.7
Here, Belisle testified at the hearing on the motion for new trial that she met with Williams bеfore she appeared on his behalf at the calendar call, and he agreed to a continuance. Because Williams has failed to prove that “his absence on April [16], standing alone, substantially affected the outcome of the case such that it could be considered a critical stage of the proceedings” or that he ever objected tо his absence, we find no reversible error.8
To establish that his trial counsel was constitutionally ineffective, [Williams] was required to prove both deficient performance by counsel and resulting prejudice. To prove deficient performance, [Williams] had to demonstrate that counsel performed [her] duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Because judicial scrutiny of counsel‘s performance must be highly deferential, the law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, [Williams] must show that no reasonable lawyer would have done what his counsel did, or failed to do what his counsel did not do. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim оnly if they were so patently unreasonable that no competent attorney
would have followed such a course. Even if a defendant can prove that his counsel‘s performance was deficient, he must also prove prejudice by showing a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have beеn different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a reasonable probability of a different, result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome.9
(a) Williams‘s contention that trial counsel was ineffective by failing to move for discharge based on the State‘s failure to comply with his speedy trial demand is without merit. As we held in Division 1, trial counsel effectively verbally withdrew the demand at the April 16, 2013 calendar call. Thus, any motion for discharge on this basis would have been denied. “[T]he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.”10
(b) Williams also asserts that trial counsel was ineffective by failing to object when the trial court allowed a printout of text messages from Williams‘s phone to go out with the jury during deliberations in violation of the continuing witness rule.11 The printout included an outgoing message from Williams‘s phone made five days after the robbery, stating “I‘ll just go back to robbing.”
The continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with
the jury to be read again during deliberations, while oral testimony is received but once.12
Pretermitting whether the text messages were written testimony subject to the continuing witness rule, given that the evidence contained in the text was also brought out during the trial and given the overwhelming evidence of Williams‘s guilt, including Colvin‘s testimony and the silver handgun found at Williams‘s house, Williams has failed to demonstrate that but for trial counsel‘s failure to object to the messages going out with the jury during deliberations there is a reasonable probability that the outcome of the trial wоuld have been different.15
Case No. A16A0498
In this case, Williams asserts that trial counsel erred by denying his motion to withdraw his guilty plea. We find no basis for reversal.
4. Williams contends that the trial court erred by accepting his negotiated Alford guilty plea because the strength of the State‘s evidence did not substantially negate his innocence. We disagree.
Alford permits a criminal defendant to plead guilty while claiming to be innocent, where the defendant intelli-
gently concludes that it is in his best interest to enter such a plea, but the plea is one of guilt and may be accepted only if the court determines there is a factual basis for a determination of guilt.16
Here, the trial court had already presided over the first trial in this case, which resulted in a hung jury. At the plea hearing, the prosecutor reminded the court of the evidence, including that the co-defendant, Jerome Welch, went to the victim‘s home, where Welch spent approximately 15-20 minutes texting on his cell phone. Welch then left, and when he returned, a second man pushed his way inside the home behind Welch, produced a gun, and took money and a debit card from the victim.17 The subsequent police investigation revealеd that Williams was one of the persons with whom Welch was texting while Welch was in the victim‘s home, and when police found Williams, he was in possession of a vehicle matching the description given by one of the victims, as well as a silver handgun matching the description of the gun used by the second robber. Cell tower records confirmed that Williams‘s phone was at or near the area of the victim‘s apartment at the time of the robbery.
After this factual recitation at the plea hearing, Williams affirmatively stated on the record that he wished to enter a guilty plea to the reduced charge of robbery, responding affirmatively when the trial court asked:
You‘re entering your plea as an Alford plea. Your attorney has explained that to you. I‘m assuming what that means, an
Alford plea meaning that you‘re not[ ] specifically admitting guilt; however, you understand what the evidence is, and rather than have another trial in your case and risk being convicted after trial and sentenced after trial, you believe it‘s in your best interest at this point in time to plead and receive the negotiated sentence?
Thus, the record “provided ample information from which the trial court could discern that the facts alleged by the State actually satisfied the elements of the charges to which [Williams] was pleading
guilty. Consequently, the superior court did not err in accepting [Williams‘s] Alford pleas. . . .”18
5. Williams further contends that trial counsel was ineffective by recommending that he enter the negotiated plea.
Once a sentence has been entered, a guilty plea may be withdrawn only to correct a manifest injustice. Where, as here, the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney‘s performance was deficient and that, but for counsel‘s errors, a reasonable probability exists that he would have insisted on a trial.19
Here, Williams did not testify at the hearings on his motion to withdraw his guilty plea or his motiоn for new trial. Thus, Williams failed to “produce any affirmative evidence . . . that but for his counsel‘s purportedly ineffective assistance, he would have insisted on going to trial. . . . Absent a showing of any prejudice, the trial court did not abuse its discretion [by] denying [Williams‘s] motion to withdraw his guilty plea.”20
6. For the reasons stated in Division 2, there is no merit to Williams‘s argument that the trial court erred by denying his motion to withdraw his guilty plea because he was entitled to a discharge based on the State‘s failure to comply with his speedy trial demand. Further, by entering his guilty plea, Williams waived his right to a speedy trial.21
7. Finally, for the reasons stated in Division 3 (a), there is no merit to Williams‘s contention that trial counsel was ineffective by failing to move for a discharge and acquittal based on the State‘s failure to comply with his sрeedy trial demand.
Judgments affirmed. Andrews, P. J., and Ray, J., concur.
DECIDED JUNE 9, 2016.
Frances C. Kuo, for appellant.