Johnson v. the State.

• Decision Date: 13 June 2011
• Docket Number: No. S10G0617.,S10G0617.
• Citation: 289 Ga. 532,712 S.E.2d 811
• Parties: JOHNSONv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 532

712 S.E.2d 811

11 FCDR 1778

JOHNSON

v.The STATE.

No. S10G0617.

Supreme Court of Georgia.

June 13, 2011.

Garner & Wald, Michael E. Garner, Stephanie Nicole Wald, Columbus, for appellant.Julia Anne Fessenden Slater, District Attorney, Michele Cauley Ivey, Michael Eugene Craig, William Donald Kelly, Jr., Assistant District Attorneys, for appellee.CARLEY, Presiding Justice.

Jessie James Johnson was indicted on June 24, 2003 for armed robbery, aggravated assault and two counts of burglary. Derrell Dowdell, an attorney with the public defender's office, was the first lawyer assigned to Johnson's case. At some point, the State communicated a plea offer for Johnson to serve 25 years to Investigator Chris Lindsay of the public defender's office, who was assigned to Johnson's case. Lindsay relayed the offer to Johnson. On July 1, 2003, Mark Casto, also an attorney with the public defender's office, was assigned to Johnson's case as a replacement for Dowdell, who informed Casto of the State's offer and of Johnson's desire to plead not guilty and go to trial.

Due to ongoing health problems, Casto was not present at the docket call on August 1, 2003, but another attorney from the public defender's office, Jim Messner, entered a not guilty plea on Johnson's behalf. Casto first met with Johnson on August 4, 2003, during which Johnson gave Casto the names of two alibi witnesses. After the meeting, Casto investigated the alibi witnesses, but could not locate one of them, and the other witness, Johnson's sister, would not support an alibi defense. During a meeting two days before trial, on August 12, Casto reported to Johnson that he would be unable to present favorable testimony from the alibi witnesses. Casto then brought up the State's plea offer and informed Johnson that due to his prior record, he would face a mandatory sentence of life without possibility of parole if he was convicted on the armed robbery count. There is no evidence in the record that Johnson had been advised of this mandatory sentence prior to this time. Johnson asked Casto to propose a counteroffer of twenty years to serve ten, and Casto immediately telephoned Michele Ivey, the Assistant District Attorney handling the case, who rejected the counteroffer. About five minutes later, Casto again called Ms. Ivey and informed her that Johnson wanted to accept the original offer. However, Ms. Ivey stated that the original offer was withdrawn due to a standing policy of the District Attorney's Office that plea offers are held open only until the docket call, meaning that once a defendant pleads not guilty, the plea offer is considered rejected. Johnson was subsequently tried, convicted, and sentenced to life without parole.

Johnson filed a motion for new trial on September 10, 2003, contending that his trial counsel rendered ineffective assistance by failing to advise him that if he rejected the State's plea offer, he would face a mandatory sentence of life without parole if convicted on the armed robbery count. The trial court denied the motion for new trial, and the Court of Appeals affirmed. Johnson v. State, 301 Ga.App. 423, 687 S.E.2d 663 (2009). The Court of Appeals pretermitted whether Johnson's counsel rendered deficient performance, holding that Johnson failed to show prejudice because there was no reasonable probability that he would have accepted the original plea offer had counsel timely informed him that he was facing a mandatory sentence of life without parole. Johnson v. State, supra at 426, 687 S.E.2d 663. We granted certiorari to consider that ruling.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “[t]o prevail on a claim of ineffective assistance of trial counsel, [Johnson] bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. [Cit.]” Welbon v. State, 278 Ga. 312, 313(2), 602 S.E.2d 610 (2004). “There is a rebuttable presumption that counsel exercised ‘reasonable professional’ judgment, and counsel's decisions are examined in light of the circumstances existing at the time of trial rather than in hindsight. [Cit.]” Schofield v. Gulley, 279 Ga. 413(I), 614 S.E.2d 740 (2005). When reviewing an ineffective assistance claim, “we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]” Suggs v. State, 272 Ga. 85, 88(4), 526 S.E.2d 347 (2000).

In Lloyd v. State, 258 Ga. 645, 648(2)(a), 373 S.E.2d 1 (1988), this Court held that trial counsel has rendered “less than reasonably professional assistance” if he has not informed his client “that an offer to plead guilty has been made and ... advised [his client] of the consequences of the choices confronting him.” Furthermore, we have recognized that

“(p)rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” [Cit.] The plea bargaining process is a critical stage of criminal proceedings where an attorney's involvement is crucial.... [Cit.] “Indeed, with plea bargaining the norm and trial the exception, for most criminal defendants (the plea process) is the critical stage of their prosecution.” [Cit.] (Emphasis in original.)

Cleveland v. State, 285 Ga. 142, 144, 674 S.E.2d 289 (2009).

In the present case, it is clear that Johnson was not reasonably represented by any attorney during the plea bargaining process. Although there is a dispute as to whether Johnson was informed of the plea offer before the August 12 meeting with Casto, even if he was informed, it is apparent that no one from the public defender's office went to the State on Johnson's behalf to negotiate a plea deal prior to the entry of a not guilty plea at the docket call. Furthermore, defense counsel, prior to the expiration of the plea offer, made no “independent examination of the facts” in Johnson's case nor tried to contact the alleged alibi witnesses so that he could “ ‘offer his informed opinion as to what plea should be entered.’ ” Cleveland v. State, supra. Finally, trial counsel failed to inform Johnson prior to his rejection of the State's plea offer that he was facing a mandatory sentence of life without parole if convicted at trial. “ ‘If the accused's choice on the question of a guilty plea is to be an informed one, he must act with full awareness of his alternatives....' ” Lloyd v. State, supra at 647(2)(a), 373 S.E.2d 1. Therefore, without knowledge of the alternative of a mandatory life sentence if convicted at trial and without knowledge of the other information described above, Johnson “could not make an informed decision about whether to accept or reject the State's plea offer [and thus he] has fulfilled his burden of showing that his ‘counsel's representation fell below an objective standard of reasonableness.’ [Cit.]” Cleveland v. State, 290 Ga.App. 835, 839 (2), 660 S.E.2d 777 (2008) (holding that trial counsel was deficient in failing to inform his client of all the evidence in the State's case against him), aff'd, 285 Ga. 142, 144–45, 674 S.E.2d 289, supra at 142.

Moreover, the record also shows that Casto did not meet with Johnson until after the docket call and thus after the expiration of the plea offer, even though Casto, who had recently worked for the District Attorney's Office, admitted that he was aware of the Office's policy on plea offer deadlines. His “failure to promptly inform [Johnson] of the imminent expiration of [the] plea offer effectively deprive[d] [him] of a ‘last chance’ opportunity to avoid a potential sentence of much greater length than the term of the offer,” further...