Hambrick v. Brannen.

• Decision Date: 12 September 2011
• Docket Number: No. S11A0799.,S11A0799.
• Parties: HAMBRICK, Wardenv.BRANNEN.
• Court: Georgia Supreme Court

289 Ga. 682

715 S.E.2d 89

11 FCDR 2880

HAMBRICK, Warden

v.BRANNEN.

No. S11A0799.

Supreme Court of Georgia.

Sept. 12, 2011.

Samuel S. Olens, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., David Allan Zisook, Asst. Atty. Gen., for appellant.Michael D. Reynolds, Columbus, for appellee.HINES, Justice.

This is an appeal by the warden from the grant of defendant Randall Brannen's petition for writ of habeas corpus. The habeas court granted the writ on the basis that Brannen had ineffective assistance of counsel at his probation revocation and re-adjudication hearing due to what it characterized as counsel's failure to investigate Brannen's mental health condition. For the reasons that follow, we reverse the grant of the writ.

On August 23, 2006, Brannen entered into a negotiated agreement wherein he entered pleas to family violence battery, terroristic threats, and reckless conduct, and he was sentenced under the First Offender Act, OCGA § 42–8–60 et seq., to probated sentences of twelve months for each of the two misdemeanors and five years to be served on probation for terroristic threats. A revocation petition was brought based upon Brannen's commission of new felonies involving reported violence against his mother. Following a hearing in the matter, in August 2007, Brannen's first offender probation was revoked, he was adjudicated guilty of the crimes for which he had been given first offender treatment, and he was sentenced to serve five years in prison with credit for time served on probation. In July 2008, Brannen filed the present application for writ of habeas corpus, listing four grounds for relief, including his claim of the ineffective assistance of counsel at the probation revocation and re-adjudication hearing. Subsequently three of the grounds were abandoned with only the ineffectiveness claim remaining. ¹

The habeas court granted relief based upon its determinations that the attorney representing Brannen at the probation revocation and re-adjudiction proceeding was deficient for failing to investigate Brannen's mental health history,² and that had counsel done so, Brannen “might have been found to be incompetent to stand trial, legally insane at the time of the crimes, or guilty but mentally ill”; the court concluded that Brannen had met his burden in showing a reasonable probability of a different outcome.

In this Court's review of the grant of a petition for writ of habeas corpus, we are to accept the habeas court's factual findings and credibility determinations unless they are clearly erroneous, but this Court is to independently apply the law to the facts. Henderson v. Hames, 287 Ga. 534, 536(2), 697 S.E.2d 798 (2010). And, in the context of a habeas corpus proceeding, in order to prevail on a claim of the ineffective assistance of counsel, the petitioner must carry the burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), of demonstrating that counsel's performance was not reasonable under the circumstances, i.e., professionally deficient, and that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Hall v. Lee, 286 Ga. 79, 80, 684 S.E.2d 868 (2009). Moreover, in satisfying the Strickland test, Brannen must overcome the “strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct.” (Punctuation omitted.) Morgan v. State, 275 Ga. 222, 227(10), 564 S.E.2d 192 (2002). The habeas court determined that Brannen had satisfied the two-prong test; but, that is plainly not the case.

The habeas court found counsel's deficiency to be the alleged failure to investigate Brannen's mental health issues. In so doing, the habeas court relied upon Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656 (2005), but a review of that case shows that it is inapposite. In Martin, trial counsel performed no investigation into the defendant's mental health even though counsel knew, prior to trial, that the defendant had been hospitalized for treatment of mental illness, and such failure to investigate was the result of inattention rather than strategic choice. That is far from the situation in the present case. Brannen's counsel's testimony revealed that counsel made a strategic decision not to pursue an insanity defense based upon his prior experience, on Brannen's assurance and the attorney's perception that Brannen understood the revocation proceedings, and on an agreement with the State that it would “dead docket” the new felony charges in exchange for Brannen not contesting the probation revocation. Moreover, Brannen expressed his paramount concern which was his desire to get into a facility where he could get treatment, and Brannen, his parents, and counsel believed that the surest route to such treatment was to admit the allegations in the probation revocation and have mental health treatment be an integral part of Brannen's sentence. Finally, counsel spoke...