Walker v. StateWalker v. State
Wаlker was indicted in two counts with sale of cocaine and possession of cocaine with intent to distribute.
“ ‘When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below the objective standard of reasonableness,’ — that is, ‘reasоnable considering all the circumstances.’ [Quoting
Strickland v. Washington,
Appellant claims counsel was ineffective: (a) in agreeing to allow him to be tried in prison clothing rather than seeking a continuance to obtain suitable civilian clothing; (b) in failing to advise him that a conviction for sale of cocaine would result in a mandatory life sentence.
(a) Prior to commencement of trial, defense counsel advised the сourt that appellant was attired in prison clothing. A deputy sheriff assigned as the court’s bailiff gave sworn testimony that he offеred appellant blue jeans and a shirt to wear at trial, but that he refused the civilian clothing, stating that he would remain in the jail-issued clothing, which consisted of blue pants and pullover top, rather than dress in the offered clothing. He wanted his own clothing. Appellant’s counsel inquired whether the clothing worn by appellant displayed any markings identifying it as prison garb, to which the sheriff replied in the negative.
Counsel explained his failure to seek a continuance: “The State had filed a . . . notice of presenting similar transactions. . . . [The] prosecuting attorney had already told me that week that he did not have his witnessеs there for the similar transactions. There was no way in the world that I was going to move for a continuance . . . and have the State ready to present evidence of the similar transactions.” Appellant has not “ ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.’” [Cits.]”
Jowers v. State,
(b) Prior to trial, the Statе agreed to accept a guilty plea presumably to a lesser offense, in exchange for which it would recommend the imposition of a five-year sentence, to serve two years. Trial counsel stated on the record priоr to the commencement of trial: “[Appellant] was going to take the plea, we had him over here Monday. At that point, he advised me that he was no longer interested in the plea. . . .”
Trial counsel testified at the hearing on motion for new trial that he informed appellant on numerous occasions that if convicted, he was facing a life sentencе because of a previous drug conviction. On the day appellant changed his mind about accepting the plea offer, “I asked him specifically you realize you are talking about a life sentence, and he just blew it off.” He exрlained the differential in jail time with respect to the two sentences: “We talked about that until I was blue in the face. I spеcifically told him that he was looking at seven years without parole.” He adamantly refused counsel’s repeatеd recommendation that he accept the offer to plead.
Although counsel expressed some misunderstanding as to whether conviction of either count (selling or possession with intent to distribute) carried a mandatory life sentence, the court was authorized to find that he repeatedly informеd appellant that if convicted he would receive a life sentence as a repeat drug offender and strongly urged him to accept the plea offer.
Even assuming counsel was mistaken and incorrectly advised appellаnt about the sentencing consequence following conviction for selling cocaine, he has not demonstrated thаt “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.]” Jowers, supra at 462 (2). It is only after the fact that he says he would have accepted the plea offer, but when he made the decision he still faсed possible conviction of possession with intent, which he rightly had been informed carried a mandatory life sentencе.
In Lloyd v. State, supra at 645 (2), a defendant was denied “reasonably professional assistance” under Strickland where counsel failed to communicate that an offer to plead guilty had been extended by the State. In assessing whether prejudice had been shоwn under the second prong of Strickland, the Court applied a case-by-case analysis: “We prefer to examine the fаcts of each case and grant relief where there is at least an inference from the evidence that the dеfendant would have accepted the offer as made or something similar.” Id. at 648. Prejudice was not shown in Lloyd because thе evidence led to “the unmistakable conclusion that [defendant] would not have accepted or even cоnsidered the offer to plead guilty. ...” Id. at 648-649.
The plea offer was communicated to Walker, who repeatedly rejеcted counsel’s advice that he accept it. “[Prejudice can only be shown .by some indication that the defendant was amenable to the offer made by the state.” Id. at 648. The undisputed evidence shows that appellant knew about the offer but was disinterested despite his counsel’s repeated entreaties. Prejudice has not been shown.
Appellant has not been denied effective assistance of counsel under Strickland.
Judgment affirmed.