Daniel v. State
| Decision Date | 02 August 2017 |
| Docket Number | No. A17A0746.,A17A0746. |
| Citation | 803 S.E.2d 603 |
| Parties | DANIEL v. The STATE. |
| Court | Georgia Court of Appeals |
Donna Avans Seagraves, for Appellant.
James Bradley Smith, Charlotte, NC, Michael Douglas DeTardo, for Appellee.
Matthew Clinton Daniel was convicted by a jury of one count of first degree burglary ( OCGA § 16–7–1 ), four counts of entering an auto ( OCGA § 16–8–18 ), two counts of financial transaction card theft ( OCGA § 16–9–31 (a) ),1 and two counts of identity theft ( OCGA § 16–9–121 ). Daniel was sentenced to 20 years to serve as a recidivist pursuant to OCGA § 17–10–7 (c). Daniel appeals from the denial of his motion for new trial2 contending that his trial counsel was constitutionally deficient for (a) failing to advise him that if he rejected the State's plea offer and was convicted at trial the judge would be required to sentence him as a recidivist who would be ineligible for parole, (b) failing to object to the admission of prior felony convictions for sentencing purposes, and (c) failing to request a jury charge on accomplice corroboration. Daniel also alleges plain error in the trial court's failure to sua sponte charge the jury on accomplice corroboration. For the following reasons, we reverse the trial court's order and remand this case for proceedings consistent with this opinion.
"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation omitted.) Scarborough v. State , 317 Ga.App. 523, 731 S.E.2d 396 (2012).
So viewed, the evidence shows that in the late evening of August 9, 2014, after smoking methamphetamine together, Daniel and two women drove to a subdivision in Jackson County, Georgia for the purpose of breaking into vehicles and a home to steal things. The women, K. S. and D. H., dropped Daniel off at the subdivision and picked him back up after he called them. When they picked Daniel up, he had a bag, a sports jersey, and a wallet. Daniel provided K. S. with a credit card from the wallet, and she used the card to purchase cigarettes from a gas station. K. S. also unsuccessfully attempted to use a credit card at an ATM. Cameras at the gas station and ATM captured K. S.'s image.
K. S. and D. H. testified against Daniel at trial and the jury found him guilty on all counts. At sentencing, the State introduced evidence of prior felony convictions and the trial court sentenced Daniel as a recidivist to 20 years to serve under OCGA § 17–10–7 (c). Daniel filed a motion for new trial which the trial court denied, and this appeal followed.
1. Although not enumerated as error by Daniel, we find that the evidence at trial was sufficient to sustain his convictions.
To sustain a conviction for first degree burglary, the State was required to prove that Daniel entered a dwelling house without authority with the intent to commit a theft. OCGA § 16–9–31. The State met this burden when it presented testimony that a victim's wallet was stolen from within the home lived in by two of Daniel's victims. The evidence also showed that Daniel entered four cars with the intent to commit a theft, which was sufficient to sustain his four convictions under OCGA § 16–9–31 (a).
Daniel was also convicted as a party to the crimes of financial transaction card theft and identity fraud. Jordan v. State , 272 Ga. 395, 396, 530 S.E.2d 192 (2000) () (citation and punctuation omitted.) The evidence was sufficient to sustain these convictions. For the two identity fraud convictions, the State was required to prove that Daniel, without authorization, possessed a victim's financial transaction card information with the intent to use it fraudulently. OCGA §§ 16–9–120 (5) (), 16–9–121 (a). For the two convictions for financial transaction card theft, the State needed to prove that Daniel obtained a financial transaction card from a victim without the victim's consent. OCGA § 16–9–31 (a). The State introduced evidence that K. S. used both transaction cards given to her by Daniel as well as receipts evidencing the use and attempted use of the cards, and this evidence was sufficient to sustain the convictions.
2. Daniel argues that his trial counsel was constitutionally deficient for failing to correctly advise him about mandatory recidivist sentencing during plea negotiations and that, had he properly understood sentencing, he would have accepted the State's plea offer. We agree.
Prior to trial, the State filed a notice of intent to introduce Daniel's prior convictions and offered him a plea deal of fifteen years to serve six as a recidivist. In response, at Daniel's request, his trial counsel extended numerous plea offers that included drug treatment and excluded any plea to burglary, all of which the State rejected. During the plea negotiations, Daniel's trial counsel advised him that the trial court had discretion as to whether to sentence him as a recidivist who was ineligible for parole.3
On the day of trial, the State offered Daniel a blind plea to all charges. Although Daniel had previously maintained his innocence with regard to the burglary charge, his trial counsel announced at the start of trial that Daniel would be willing to plead guilty to just that charge. The State rejected Daniel's offer, and the case proceeded to trial, resulting in Daniel's conviction on all of the charges against him.
At sentencing, the State introduced evidence of five prior convictions without objection from Daniel's trial counsel. Daniel testified that he did not burglarize any house and that he had tried to work out a deal with the State, but the State would not drop the burglary charge. Daniel's counsel argued that it was within the trial court's discretion to determine whether any portion of Daniel's sentence would be paroled, but the State countered that this contention misstated the law. Daniel received a sentence considerably longer than the initial plea offered by the State.
To establish constitutionally ineffective assistance of counsel, Daniel must prove that his attorney's performance was deficient and that the deficiency prejudiced him because there is a reasonable probability that, but for the attorney's errors, the outcome would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Emilio v. State , 263 Ga.App. 604, 604 (1), 588 S.E.2d 797 (2003). "There is a strong presumption that trial counsel provided effective representation." (Footnote omitted.) Welbon v. State , 278 Ga. 312, 313 (2), 602 S.E.2d 610 (2004). When trial counsel misunderstands the law, however, a defendant can establish that his trial counsel's conduct fell below an objective standard of reasonableness. Thomas v. State , 246 Ga.App. 448, 450 (1), 540 S.E.2d 662 (2000).
"Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process." (Citation omitted.) Lafler v. Cooper , 566 U.S. 156, 162 (II) (A), 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
a. Deficient Performance
(emphasis supplied.) OCGA § 17–10–7 (c). Moreover, the Georgia Supreme Court has made clear that "[w]hen it comes to parole eligibility, ... an attorney's failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance." Alexander v. State , 297 Ga. 59, 65, 772 S.E.2d 655 (2015). In reaching this conclusion, the Georgia Supreme Court acknowledged that the recidivist statute has been a long standing feature of our criminal justice system, that it is "succinct, clear and explicit and it applies automatically upon an offender's conviction as a recidivist." (Citations and punctuation omitted.) Id.
Here, although trial counsel understood that persons sentenced as recidivists were ineligible for parole, he mistakenly believed that the trial court had discretion to not sentence Daniel as a recidivist. Because trial counsel misunderstood the law in this regard, he did not advise Daniel during plea negotiations that he faced a mandatory sentence as a recidivist and would be ineligible for parole pursuant to OCGA § 17–10–7 (c) if he was convicted at trial. Consequently, we hold that trial counsel's performance was constitutionally deficient in the plea process and our inquiry turns to whether Daniel can demonstrate prejudice. Alexander , supra, 297 Ga. at 65, 772 S.E.2d 655 ; Badger v. State , 310 Ga.App. 157, 160, 712 S.E.2d 582 (2011).
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