Cosby v. State
| Decision Date | 12 October 2022 |
| Docket Number | A22A0701 |
| Citation | 365 Ga.App. 574,879 S.E.2d 671 |
| Parties | COSBY v. The STATE. |
| Court | Georgia Court of Appeals |
Derek M. Wright, Atlanta, for Appellant.
Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Atlanta, Elizabeth C. Rosenwasser, for Appellee.
Kenyatta Cosby appeals the denial of his motion to withdraw his non-negotiated guilty plea to charges of rape, kidnapping, aggravated battery and three counts of aggravated assault. He maintains that (1) the trial court erred by failing to hold a competency bench trial as required by OCGA § 17-7-130 (d) ; (2) the trial court erred by failing to inquire into his competency, sua sponte, before accepting his guilty plea; (3) his plea counsel rendered ineffective assistance of counsel for failing to request a competency trial; and (4) the trial court erred by failing to advise him of the mandatory minimum sentences for rape and kidnapping. For the following reasons, we affirm.
The record shows that in October 2016, a Fulton County grand jury indicted Cosby for rape, kidnapping, aggravated battery, sexual battery, and three counts of aggravated assault. Cosby filed a plea of mental incompetency to stand trial, and in August 2017, the trial court found him to be incompetent. Pursuant to OCGA § 17-7-130 (c), the court ordered the Department of Behavioral Health and Developmental Disabilities ("DBHDD") to evaluate Cosby and determine whether he was competent to stand trial or whether he could attain competency in the future. The case was placed on judicial hold in the interim. In January 2018, Dr. Patricia O'Connell, a DBHDD psychologist, determined that Cosby was competent. The judicial hold was removed in April 2018.
Cosby's jury trial began in March 2020. The victim testified that in September 2016, she agreed to give Cosby a ride to his house.
When she pulled into the driveway, Cosby took the car key out of the ignition, and when she tried to get it back, Cosby punched her several times in the face, choked her, and bit her shoulder and leg. At some point, Cosby pulled the victim from the car, slammed her head into the ground, and then dragged her by her feet into his back yard, where he raped her. A neighbor, who had called 911 during the incident, testified that he saw Cosby strike the victim and drag her from her car. The responding officer testified that when he arrived at the scene, he found the victim on her hands and knees, bruised and crying for help, while Cosby was thrusting into her from behind. The officer's body camera captured the incident, and the video was admitted and played for the jury.
Once the State rested, Cosby inquired about entering a guilty plea. The trial court explained that it would accept a non-negotiated guilty plea at any time:
You can enter a plea at any time that you want to. However, I would not say in advance of the plea what I would give you. All that we could do is make sure that you are aware of what the penalties are and what the range would be, but I would not pronounce my sentence until you decided to enter a guilty plea and I accepted your plea. And you would not be able to withdraw your plea or take it back if you didn't like the sentence.
The prosecutor then listed the penalties that Cosby was facing on each charge. At first, Cosby declined to enter a guilty plea: But he changed his mind when the court denied his motion for a directed verdict, telling the judge,
During the plea colloquy, the trial court engaged Cosby in an extensive and thorough conversation, wherein he acknowledged that he understood the charges against him; he had reviewed the guilty-plea form with the assistance of counsel; he had discussed the facts and potential defenses with counsel; he was satisfied with counsel's representation; he understood that the court could impose any sentence authorized by law, regardless of the State's recommendation; he understood that he would have to register as a sex offender; he understood the rights he was waiving by entering into a guilty plea; and he understood the collateral consequences of pleading guilty.
The trial court inquired twice during the plea colloquy into Cosby's medications. Cosby denied being under the influence of any substances other than the medication he normally took for seizures and depression, and explained that his medication "sometimes" affected his ability to understand the proceedings, so he had not taken it that morning.
The trial court also inquired of plea counsel, who explained that Cosby had suffered a traumatic brain injury
about three years before the incident that "affected him significantly," and that he had been diagnosed with schizophrenia, bipolar disorder, and depression. Plea counsel was nevertheless satisfied that Cosby was competent, that he understood what was going on, and that the plea was voluntary. The trial court then took victim-impact testimony, after which Cosby apologized to the victim and the court, saying he "underst[oo]d all of [his] rights that [he] gave up to trial," and asking the court to "spare" him. The trial court accepted Cosby's guilty plea, explaining that it had no reason to doubt his competency, and sentenced him to 45 years in confinement, followed by life on probation.
Soon after sentencing, with the assistance of new counsel, Cosby moved to withdraw his guilty plea, asserting in part that his plea was not knowing and voluntary because he had not been competent to enter it and that plea counsel had rendered ineffective assistance by not requesting a competency hearing. In support, Cosby tendered Dr. O'Connell’s January 2018 report finding him competent to stand trial, medical records showing that his prescription medications had been changed after he returned to the county jail, and records showing that he had previously been found incompetent on several occasions. He also presented testimony from plea counsel, Dr. O'Connell, and himself.
Plea counsel testified that he did not believe Cosby was incompetent or in need of a new evaluation at the time of the guilty plea, basing that opinion on his experience with other competency cases, his review of Cosby's records, and his interactions with Cosby.1 Dr. O'Connell testified that Cosby had been competent to stand trial when she evaluated him in January 2018, but that she had no basis for determining whether he was still so in March 2020 when he entered his plea, and that she was not qualified to say what effect on Cosby's competency a change in his medications would have had. On that evidence, the trial court denied Cosby's motion, finding that he had failed to show he was incompetent when he pleaded guilty. This appeal followed.
1. In his first enumeration of error, Cosby contends that the trial court erred by failing to conduct a competency hearing within 45 days of DBHDD's evaluation finding him competent to stand trial before accepting his guilty plea. We discern no reversible error.2
If an accused files a motion requesting a competency evaluation, the trial court "may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused's mental competency to stand trial" and to make recommendations to restore the accused to competency if the accused is determined to be mentally incompetent to stand trial. OCGA § 17-7-130 (b) (1). Once a DBHDD-licensed psychologist determines that the accused has received treatment that makes him "mentally competent to stand trial, the department shall notify the court," and the trial court "shall hold a bench trial to determine the accused's mental competency to stand trial within 45 days of receiving the department's evaluation[.]" OCGA § 17-7-130 (d) (1).
Cosby argues that the trial court failed to comply with the requirements of OCGA § 17-7-130 [(d)] (1) when it did not hold a competency hearing within 45 days of receiving the DBHDD's evaluation. "Because the statutory procedures of OCGA § 17-7-130 (d) were triggered by the trial court's entry of [an] order directing his evaluation[,] the court was bound to implement the remaining dictates of the statutory scheme."
Crawford v. State , 355 Ga. App. 401403 (2), 844 S.E.2d 294 (2020) (citation and punctuation omitted). However, failure to comply with OCGA § 17-7-130 (d) (1) does not require a reversal. Rather, our precedent holds that when an appellant raises as error the trial court's failure to hold a mandatory hearing on competency, the trial court must conduct a post-conviction competency hearing. See Beach v. State , 351 Ga. App. 237, 242-243 (2) (b), 830 S.E.2d 565 (2019) (). See also Crawford , 355 Ga. App. at 403-04, 844 S.E.2d 294 ().
Here, there is no dispute that the trial court failed to hold the statutorily required competency hearing after Dr. O'Connell found Cosby competent in January 2018 and before Cosby entered his guilty plea. But we reject Cosby's argument that "the record is devoid of any competency hearing in...
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