☢ test - Í

Cunningham v. State, 239 Ga.App. 889, 522 S.E.2d 480 (September 9, 1999). No ineffective assistance where counsel assisted defendant in entering guilty plea pursuant to First Offender Act, based on defendant’s representation that he was eligible therefor. Unbeknownst to counsel, defendant had previously entered a first offender plea, and when this was discovered by the district attorney, the trial court revoked the first offender status here. “[D]efendant misrepresented his status as a first offender no less to his attorney at trial than he did to the trial court. As defendant will not be heard to fault the trial court for his fraud on the court, neither will he be heard to fault his trial attorney for such fraud for he, and he alone, is the responsible party. Johns v. State, 223 Ga.App. 553, 479 S.E.2d 388 (1996).” Nhek v. State, 271 Ga. 245, 517 S.E.2d 521 (June 1, 1999). No ineffective assistance where counsel advised defendant to plead guilty to three felonies including the predicate to felony murder, while contesting the murder charge itself. Counsel’s strategy was to show that the conspiracy to commit the other felonies had ended when the murder occurred. “Counsel hoped to gain sympathy for Nhek as one who was merely caught up in the circumstances, and argue to the jury that he should be placed in the same position as the fellow conspirators [who, unlike defendant, were not present when the shooting occurred]; guilty of the robbery conspiracy but not guilty of malice murder or felony murder. She believed it would be possible for the jury to have some empathy with Nhek if it knew he would be held responsible in some manner. She chose this strategy even though she recognized that the State could argue Nhek had thereby admitted the predicate felony for felony murder.” “Counsel also argued that, contrary to the State's argument, pleading guilty to the conspiracy charge did not automatically result in guilt on the felony murder charge, noting that three other conspirators had pled guilty to the conspiracy, but were not considered guilty of felony murder.” “The fact that present counsel would pursue a different strategy does not render trial counsel's strategy unreasonable. DeYoung v. State, 268 Ga. 780, 785-786(5), 493 S.E.2d 157 (1997).” Accord, Freeman v. State , 284 Ga. 830, 672 S.E.2d 644 (January 26, 2009). 50. IMMIGRATION See subheading ADVICE ON IMMIGRATION CONSEQUENCES, above 51. IMMUNITY, FAILURE TO FILE MOTION Smith v. State, 309 Ga.App. 241, 709 S.E.2d 823 (March 17, 2011). Conviction for aggravated assault affirmed; no ineffective assistance “in failing to file a motion for immunity from prosecution/plea in bar pursuant to OCGA § 16-3- 24.2 based upon Smith's claim of self-defense. But ‘[c]ounsel's decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer's exclusive province and do not amount to ineffective assistance of counsel.’ Howard v. State, 252 Ga.App. 465, 468(1) (556 S.E.2d 536) (2001). Smith's trial counsel testified that he considered filing such a motion, but determined that he would have to put Smith on the stand and he ‘wasn't sure he wanted to go that route.’ Moreover, Smith cannot demonstrate how the failure to pursue such a motion harmed him. ‘[T]o avoid trial under OCGA § 16-3-24.2, a defendant must show that he is entitled to immunity by a preponderance of the evidence.’ (Citations omitted.) State v. Thompson, 288 Ga. 165, 169 (702 S.E.2d 198) (2010). The evidence in this case was, in effect, a swearing contest.” 52. IMPEACH WITNESSES, FAILURE TO, See subheading WITNESSES, FAILURE TO IMPEACH, below 53. IMPROPER JURY CONTACT, FAILURE TO OBJECT Chandler v. State, 309 Ga.App. 611, 710 S.E.2d 826 (May 17, 2011). Child molestation and child cruelty convictions affirmed; no ineffective assistance for failure to object (in fact, consenting) to alternate juror’s presence during deliberations, as “Chandler has failed to present any evidence to show that there is a reasonable probability that the outcome of the trial would have been different but for the alternate juror's presence.” “‘[A]lthough although [Chandler] would have been entitled to a presumption of harm if counsel had timely objected to the trial court's plan, [he] is no longer entitled to this presumption of harm in a claim of ineffective assistance of counsel.’ London v. State, [260 Ga.App. 780, 782–783(2), 580 S.E.2d 686 (2003)].” Bass v. State, 285 Ga. 89, 674 S.E.2d 255 (January 26, 2009). Reversing 288 Ga.App. 690, 655 S.E.2d 303 (November 30, 2007). Defendant received ineffective assistance where counsel failed to object to sheriff, a critical state’s witness, serving as bailiff during two days of jury trial. Deficient performance: “‘When a key witness against a defendant doubles as the officer of the court specifically charged with the care and protection of the jurors, associating with them on both a personal and an official basis while simultaneously testifying for the prosecution, the adversary system of justice is perverted. [Cit.]’ Radford v. State, 263 Ga. 47, 49-50(6) (426 S.E.2d 868) (1993). Thus, in Radford, consistent with Turner v. Louisiana, 379 U.S. 466 (85 S.Ct. 546, 13 L.Ed.2d 424) (1965), we recognized that a criminal defendant's right to an impartial jury cannot be reconciled with a practice in which the trial court permits a substantial