Carson v. State, A03A1403.

• Decision Date: 01 December 2003
• Docket Number: No. A03A1403.,A03A1403.
• Citation: 264 Ga. App. 763,592 S.E.2d 161
• Parties: CARSON v. The STATE.
• Court: Georgia Court of Appeals

592 S.E.2d 161

264 Ga. App. 763

CARSON v. The STATE.

No. A03A1403.

Court of Appeals of Georgia.

December 1, 2003.

Reconsideration Denied December 16, 2003.

Certiorari Denied April 27, 2004.

Lynn G. Fant, Marietta, for appellant.

Patrick H. Head, District Attorney, Mazier Mazloom, Amy H. McChesney, Assistant District Attorneys, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Reginald Kinderly Carson appeals his conviction for armed robbery of Thomas Curry, a 65-year-old terminally ill cancer victim whom Carson had pummeled in the head with a metal object in order to steal the proceeds from his Social Security check. Carson, a five-time felon, also appeals his subsequent recidivist sentence of life imprisonment without possibility of parole, contending in a single enumeration that he received ineffective assistance of trial counsel pursuant to the Sixth Amendment. For the reasons set forth below, we affirm both the conviction and sentence.

The unsavory motivation for Carson's action in both this Court and the court below is clear—Carson was hoping that he could delay his prosecution long enough for his victim to die and become unavailable to testify against him.

The record shows that trial counsel was appointed to represent Carson on March 15, 2001, and that he went to see Carson the next day. The testimony of both trial counsel and Carson conclusively established that counsel informed Carson that the State had not been able to locate the victim, who was elderly and had cancer, and that without the victim, the State's case was weak. Although Carson initially stated that his trial counsel had not discussed the victim's availability to testify with him at all, he later recanted: "Only thing [trial counsel] told me ... he said tell you the truth, I wish he were dead. And then when I looked at him I said what? He said yeah. Because without him there's no case." (Emphasis supplied.)

At the time the State made Carson a plea offer of "25 to do 15," the State was aware that the victim might not survive until trial, and his whereabouts were unknown. Carson, by his own admission, was well aware that, without the victim, the State "had no case." At the October 15, 2001 pretrial hearing, the trial court advised Carson that no negotiated plea would be accepted after that date. Carson, with full knowledge that he could receive a life sentence upon conviction in this case, rejected the plea offer.

Some time after Carson unequivocally rejected the State's plea offer, his victim was found by the State and was available to testify at trial which began April 29, 2002. At trial, Carson complained that he was dissatisfied with the services of his trial counsel and did not want counsel to represent him. The trial court denied Carson's tactical motion for substitution of counsel and required him to go forward with his current counsel.

Carson then indicated that he was ready to accept the plea that the State had offered him months earlier. The prosecutor, however, informed the court that the court-imposed deadline for a negotiated plea had passed, and the plea offer was no longer available in any event. Carson was told that, at that time, the only plea he could enter was a nonnegotiated plea, and that if he entered such a plea, he would lose his right of appeal. Carson decided that he would not enter a nonnegotiated plea, but would go forward with the trial.

Carson argued that this Court should enforce the original plea offer. Because Carson did not accept the plea, there is no plea agreement to enforce. Carson knew that he might be sentenced to life in prison, but he also knew that if he agreed to the plea offer, he would be foreclosing the possibility that the man he had beaten and robbed might die before he could be brought to trial. Weighing these possibilities, he chose to reject the plea offer, and the integrity of our criminal justice system requires us to affirm the trial court's ruling.

In this appeal, Carson specifically contends that his trial counsel rendered ineffective assistance by failing to inform him that (1) he would receive a mandatory sentence of life without parole if he rejected a plea offer extended by the State and (2) the State intended to introduce certain damaging evidence against him if he chose to go to trial.

Under the standard established in Strickland v. Washington,¹ one asserting his trial counsel's performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel's representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense.

Howard v. State.² Carson has failed to make these necessary showings with respect to either one of his contentions.

We first address Carson's argument that his counsel failed to advise him that he could receive a mandatory life sentence. Carson was advised by his attorney of the possibility of a life sentence, and trial counsel made Carson aware of "the range of possible sentences" he faced if he rejected the plea. Although Carson's attorney did not explain that a mandatory life sentence was probable, he informed Carson that such result was possible. In other words, Carson knew "that the consequences of refusing the State's plea offer could be harsher than the consequences of accepting it." (Punctuation omitted.) Sutton v. State;³ see also OCGA § 17-10-7. That is all the law requires.

Furthermore, Carson has wholly failed to show that his trial counsel's alleged deficiency prejudiced him. In a case in which a defendant complains that his trial counsel was deficient for failing to adequately inform him of the consequences of accepting a plea, "such prejudice can only be shown by some indication that [at the time the defendant rejected a plea he] was amenable to the offer made by the state." Lloyd v. State.⁴ Here, the evidence indicates that Carson had no intention of accepting the State's plea offer because he was aware that the victim, and key witness, in the case was ill with cancer and might be deceased by the time of trial if trial were delayed. Thus, even if trial counsel's performance had been deficient, Carson was not prejudiced by the deficiency.

Carson further contends that his trial counsel rendered ineffective assistance by failing to inform him about the details of the State's case against him. The record, however, clearly shows that this enumeration is patently without merit. The trial court's determination that Carson was not denied effective assistance of counsel is not clearly erroneous, and we affirm this ruling.

Our aim in reviewing the conduct of criminal prosecutions is to ensure that there is a level playing field for both the State and criminal defendants; the rights we uphold and the rules we enforce exist for the advancement and preservation of justice. Our criminal justice system is designed to ensure that a defendant's constitutional rights are protected, and that a fair trial is provided. It is the responsibility of the trial court to ensure that the system is not manipulated by any party, while protecting the defendant's constitutional and statutory rights. The trial judge here has acted responsibly in satisfying both obligations.

Judgment affirmed.

SMITH, C.J., ANDREWS, P.J., RUFFIN, P.J., and MILLER, J., concur.

ELLINGTON, J., concurs in the judgment only.

PHIPPS, J., dissents.

PHIPPS, Judge, dissenting.

The evidence supports Carson's conviction, but I respectfully dissent from the majority's affirmance of Carson's mandatory sentence of life imprisonment without possibility of parole for his perpetration of two armed robberies. Although it is certainly within the province of the legislature to provide for severe mandatory sentences, we should not sanction their imposition unless the defendant has been afforded all of the rights and protections the law extends. Under the Sixth Amendment guarantee of effective assistance of counsel, Carson had a right to be told that if he rejected a plea bargain offered to him by the state and was convicted of armed robbery at trial, he would be given a mandatory sentence of life imprisonment without possibility of parole due to the state's intent to utilize his prior armed robbery conviction in aggravation of punishment under what is known as Georgia's "two strikes and you're out" law. Yet, Carson's defense attorney did not realize that Carson could receive a sentence of life imprisonment without possibility of parole until the case came on for trial. Thus, Carson was deprived by his attorney of the mandatory sentencing information he needed to make an informed and voluntary decision about whether to accept or reject a negotiated plea. Under the circumstances, I would vacate Carson's sentence and remand this case to the trial court for further proceedings.

In moving for a new trial, Carson complained that his attorney had been ineffective in failing to inform him of the sentence he faced if he rejected the state's plea offer. The trial court denied Carson's motion, ruling that he had not carried his burden of showing ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. [Cits.]⁵

The issue is a mixed question of law and fact; therefore, we accept the trial court's factual findings unless clearly erroneous, but we independently apply the law to the facts.⁶ In my opinion, the trial court incorrectly applied the controlling law to the undisputed facts.

OCGA § 17-10-6.1(a) sets...