Benton v. State
| Decision Date | 17 August 2021 |
| Docket Number | A21A1118 |
| Citation | 861 S.E.2d 672,361 Ga.App. 19 |
| Court | Georgia Court of Appeals |
| Parties | BENTON v. The STATE. |
Steven Lee Sparger, Savannah, for Appellant.
Shalena Cook Jones Jones, Abigail Beth Long, for Appellee.
Turner Benton appeals his convictions for two counts of aggravated assault, arguing that (1) the trial court erred in sentencing him as a recidivist because the State failed to prove he had three prior convictions; (2) the trial court's jury instruction regarding aggravated assault (with a deadly weapon) violated his due-process rights; and (3) his counsel was ineffective in various respects. For the reasons noted infra , we affirm.
Viewed in the light most favorable to the jury's verdict,1 the evidence shows that on July 4, 2017, Tyrone Ransom was working in a convenience store when Benton approached him and appeared to be irritated. Benton accused Ransom of stealing his weed whacker and demanded that he admit it; but Ransom adamantly denied the allegation. The dispute then escalated, and the two men began fighting. And at some point during the altercation, Benton retrieved a knife from his pocket and stabbed Ransom, who was unarmed and unaware that Benton had a weapon. The entire altercation was recorded by surveillance cameras.
Thereafter, Benton was charged with two counts of aggravated assault. And following a jury trial, Benton was convicted of one of those charges and acquitted of the other. Benton then filed a motion for a new trial, and after a hearing, the trial court denied it. This appeal follows.
1. Benton first argues that the trial court erred in sentencing him under OCGA § 17-10-7 (c) because the State failed to prove he had three prior felony convictions, which is required for that statute to apply. We disagree.
In relevant part, OCGA § 17-10-7 (c) —which applies when a defendant is sentenced as a recidivist—provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.2
And in support of its request that Benton be sentenced as a recidivist, the State presented certified copies of his convictions for three prior felonies. In response, Benton's counsel informed the court that he had no objection to the admission of this evidence.
On appeal, Benton concedes that he was convicted of three prior felonies, but argues that, as to the first one, he was sentenced as a first offender, and later, was exonerated of that offense under the First Offender Act when he successfully completed probation. In this regard, the First Offender Act provides that, under certain circumstances, the court "may, without entering a judgment of guilt and with the consent of the defendant: (1) defer further proceeding and place the defendant on probation as provided by law; or (2) [s]entence the defendant to a term of confinement as provided by law."3 And particularly relevant here, OCGA § 42-8-60 (e) (1) further provides:
A defendant sentenced pursuant to this article shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant ... [c]ompletes the terms of his or her probation , which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, provided that such sentence has not otherwise been tolled or suspended ....4
So, turning to the conviction at issue, Benton pleaded guilty in 1990 to selling a controlled substance, and he was sentenced as a first offender to five years, with six months to be served in confinement and the remainder on probation. This much is undisputed between the parties. Benton also acknowledges that three different petitions for adjudication of guilt and imposition of sentence were filed as to that conviction, alleging that he violated his probation in various respects. Nevertheless, Benton argues that he was ultimately exonerated of his 1990 conviction under OCGA § 42-8-60 (e) (1) because his probation was never actually revoked by the trial court; but this contention is belied by the record. Indeed, the case number for the 1990 conviction is 090-0541-G, and the record includes three different orders in that case revoking Benton's probation. Curiously, Benton even cites to these revocation orders in support of his conclusory allegation that his probation was never revoked.5 In any event, Benton's probation in the 1990 case was revoked, he was not exonerated under OCGA § 42-8-60 (e), and thus, the conviction qualifies as a prior felony conviction such that the trial court did not err in sentencing him as a recidivist under OCGA § 17-10-7 (c).
2. Benton next argues the trial court's jury charge on aggravated assault was erroneous because it did not instruct the jury that the State was required to prove that the offense was committed in the specific manner alleged in the indictment. Again, we disagree.
As an initial matter, because Benton did not object to the aggravated-assault jury instruction below, we review this claim only for plain error.6 And as our Supreme Court has explained, "[u]nder plain error review, we will reverse the trial court only if the alleged instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings."7 But here, even if the trial court erred in giving this jury instruction (plain or otherwise), any such error was ultimately cured by the court.
Specifically, Benton contends that the trial court's aggravated-assault jury instruction was erroneous because the indictment charged him with committing aggravated assault by stabbing the victim with a knife, but the instruction did not specify the manner in which the offense was allegedly committed. It is, of course, "axiomatic that, in criminal prosecutions, the court's instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial."8 And this is particularly true when "the offense charged may be committed in one of several ways, but the indictment charges one specific method."9 But importantly, in reviewing a challenge to the trial court's jury instruction, this Court "views the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case."10
Here, the jury found Benton not guilty of aggravated assault as alleged in Count 1 of the indictment, but guilty of the offense as alleged in Count 2. And Count 2 of the indictment charged Benton with committing the offense of aggravated assault in violation of OCGA § 16-5-21, alleging that "on or about the 4th Day of July, 2017, [he] did make an assault upon the person of [Ransom] with a deadly weapon, to wit a knife, by stabbing him in the chest ...." And as we have explained, "[a]verments in an indictment as to the specific manner in which a crime was committed are not mere surplusage."11 Indeed, such averments must be "proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant's right to due process of law."12 Our analysis necessarily begins, then, with OCGA § 16-5-20 (a), which provides that:
A person commits the offense of simple assault when he or she either:
In this case, Benton argues that the trial court erred by instructing the jury on aggravated assault as defined in OCGA § 16-5-21 (a) (2), rather than OCGA § 16-5-21 (a) (1), because the indictment alleged that he attempted to inflict a violent injury on Ransom with a knife, not that he placed the victim in reasonable apprehension of immediately receiving a violent injury. And in support, Benton primarily relies on Talton v. State ,13 in which we held that a trial court's jury charge on aggravated assault was erroneous because the court instructed that "if the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred[,]"14 while the indictment alleged that the aggravated assault was committed by a specific method—shooting the victim with a pistol.15 The Talton Court explained that "[g]iven the way the indictment was drafted, the jury was required to find beyond a reasonable doubt that [the defendant] shot a handgun at [the victim] in order to find him guilty of aggravated assault."16 As a result, we held under those circumstances that "a limiting instruction would not remedy the error."17
Turning to the jury charge at issue, the trial court instructed as follows:
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Orozco v. State
...performance by failing to advise him about an appeal, we need not address Strickland ’s prejudice prong. See Benton v. State , 361 Ga. App. 19 (3) (a), 861 S.E.2d 672 (2021). ...
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Benton v. State
...of guilt. In the case before us, the trial court ruled that it did, and the Court of Appeals affirmed. See Benton v. State , 361 Ga. App. 19, 19-21 (1), 861 S.E.2d 672 (2021).However, as we explain more fully below, for his first offense, the court's revocation orders served only to revoke ......