☢ test - Í
informed of the plea offer before the August 12 meeting with Casto, even if he was informed, it is apparent that no one from the public defender's office went to the State on Johnson's behalf to negotiate a plea deal prior to the entry of a not guilty plea at the docket call. Furthermore, defense counsel, prior to the expiration of the plea offer, made no ‘independent examination of the facts’ in Johnson's case nor tried to contact the alleged alibi witnesses so that he could ‘“offer his informed opinion as to what plea should be entered.”’ Cleveland v. State, [290 Ga.App. 835, 660 S.E.2d 777 (2008)]. Finally, trial counsel failed to inform Johnson prior to his rejection of the State's plea offer that he was facing a mandatory sentence of life without parole if convicted at trial. ‘“If the accused's choice on the question of a guilty plea is to be an informed one, he must act with full awareness of his alternatives....”’ Lloyd v. State, supra at 647(2)(a), 373 S.E.2d 1.” Record also shows that counsel was aware of District Attorney’s practice of withdrawing offers if not accepted at docket call. Distinguished, Bailey v. State , 313 Ga.App. 824, 723 S.E.2d 55 (January 31, 2012) (no deficient representation where defendant failed to show that State’s offer was open and available during time counsel was appointed); Johnson v. State , 322 Ga.App. 612, 744 S.E.2d 903 (July 2, 2013) (trial counsel properly reviewed these matters with defendant). 2. Prejudice . Defendant showed reasonable probability that, but for counsel’s deficient performance, he would have accepted State’s offer. “[O]nce Johnson was advised that he faced a mandatory life sentence if convicted at trial and that his alibi witnesses would not testify in his defense, he immediately asked his counsel to begin negotiating for a plea offer by attempting to see if the State would agree to a lower sentence. … Moreover, upon his counteroffer being summarily rejected, Johnson, within five minutes, tried to accept the original offer but was informed that the original offer had expired. … In short, if trial counsel, before the expiration of the State's plea offer, had investigated the facts of the case, informed Johnson that his alibi witnesses would not testify, advised Johnson that he faced a mandatory sentence of life without parole if convicted at trial, and proffered his own informed opinion as to whether Johnson should accept or reject the plea offer, it is quite evident that Johnson not only would have been amenable to the State's plea offer but actually would have accepted it.” Hines and Melton dissent. Accord, Cammer (November 21, 2011), above; Broom v. State , 331 Ga.App. 564, 769 S.E.2d 400 (March 6, 2015) (defendant failed to show reasonabile probability that he would have accepted state’s offer had he known about it before it expired). Mora v. State, 295 Ga.App. 641, 673 S.E.2d 23 (January 23, 2009). “Mora … contends that counsel was ineffective because she failed to inform him that the state intended to prosecute him as a recidivist, OCGA § 17-10-7, or explain the consequences of a life sentence. While the record reflects that trial counsel was confused about OCGA § 17- 10-7 and that she did not know the state intended to prosecute Mora as a recidivist, she testified that there is always a possibility of a life sentence for rape and that she discussed this possibility with Mora. She further explained that the state offered Mora a plea of twenty years but that Mora ‘was emphatic that he was not pleading guilty to rape.’ Although Mora contradicted trial counsel's testimony during the hearing on his motion for new trial, he never testified that he would have accepted a plea offer had he known that he was facing the prospect of being sentenced as a recidivist. In fact, Mora's testimony during the hearing on his motion for new trial confirms trial counsel's testimony that Mora was bent on proving his innocence: ‘I asked [trial counsel] if we could work out any kind of a plea. That is, I just wanted an opportunity to show that I wasn't guilty of any kind of a rape. And I asked her [at trial] if she couldn't obtain a reduction or a dismissal of the rape charge because I didn't rape anybody or do anything.’” Childrey v. State, 294 Ga.App. 896, 670 S.E.2d 536 (November 26, 2008). Charged with aggravated sodomy and related offenses, defendant rejected plea offers as low as five years to serve. Defense counsel erroneously advised defendant that the charge carried a minimum sentence of 10 years to serve, unaware that the mandatory minimum had been changed to 25 years to serve in 2006. Defense counsel correctly advised defendant that the maximum sentence was life in prison. Held, defendant received no ineffective assistance; based on Lloyd v. State , 258 Ga. 645, 373 S.E.2d 1 (1988), Whitehead v. State , 211 Ga.App. 121, 438 S.E.2d 128 (1993), Sutton v. State , 263 Ga.App. 188, 189-190(1), 587 S.E.2d 379 (2003), and Carson (December 1, 2003), below . Evidence supported trial court’s finding rejecting defendant’s contention that but for defendant’s erroneous advice, he would have accepted State’s offer. Accord, Biggins v. State , 322 Ga.App. 286, 744 S.E.2d 811 (June 17, 2013). Goldsby v. State, 273 Ga.App. 523, 615 S.E.2d 592 (June 6, 2005). “[Defendant] states that his attorney was ineffective because he never had a serious discussion about plea options with the prosecutor. At the hearing on [defendant’s] motion for a new trial, trial counsel testified that while he mentioned [defendant’s] interest in a possible plea bargain to the district attorney, the district attorney never responded. Thus, trial counsel did not aggressively pursue such plea. In Avans v. State, 251 Ga.App. 575, 576 (554 S.E.2d 766) (2001), we found that, where no plea offer was ever made by the state, counsel’s failure to initiate plea negotiations was not deficient professional conduct. Here, trial counsel initiated plea negotiations, but the district attorney did not respond. Moreover, trial counsel knew that his client would not plead guilty to trafficking. As counsel did not have a reasonable basis to believe that a plea could be negotiated, the trial court
Made with FlippingBook Ebook Creator