State v. Dorsey, A22A0589

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPipkin, Judge
Docket NumberA22A0589
Decision Date01 July 2022



No. A22A0589

Court of Appeals of Georgia, Second Division

July 1, 2022


Pipkin, Judge

Jimmy Dorsey rejected a plea offer extended by the State and proceeded to a jury trial, after which he was convicted of armed robbery and related crimes and sentenced as a recidivist to serve life in prison without the possibility of parole plus five years probation. Dorsey moved for a new trial arguing, in relevant part, that his trial counsel was constitutionally ineffective by misadvising him regarding the consequences of rejecting the State's favorable plea offer and the effect his status as a recidivist would have on his sentence if he were convicted after a trial. The trial


court agreed and granted Dorsey a new trial. The State appeals that ruling.[1] For the reasons explained below, we affirm the trial court's conclusion that Dorsey's trial counsel was constitutionally ineffective, but we vacate the part of the trial court's judgment setting aside Dorsey's convictions and granting him a new trial because, under the circumstances of this case, such relief is not the proper remedy.

1. Whether trial counsel rendered constitutionally ineffective assistance presents a mixed question of law and fact. See State v. Lexie, 331 Ga.App. 400, 400 (771 S.E.2d 97) (2015). When this Court reviews a trial court's judgment with respect to a claim of ineffective assistance of counsel, "we defer to the trial court's findings of fact unless clearly erroneous, but owe no such deference to its conclusions of law which we apply independently to the facts." (Citation and punctuation omitted.) Id.

The record shows that, in July 2014, Dorsey was indicted for and pleaded not guilty to armed robbery, aggravated assault, false imprisonment, and possession of


a firearm during the commission of a crime.[2] In April 2017, the State filed notice of its intent to seek recidivist punishment pursuant to OCGA § 17-10-7 (a) and (c). In the weeks before Dorsey's September 2017 trial, the State extended a plea offer of twenty years to serve seven on a reduced charge of "some form of robbery." In response, trial counsel e-mailed the prosecutor on September 6, 2017, indicating that Dorsey would "plea to everything in the original plea offer if [the State] would come down on the probation time (from 20 serve 7 to 10 serve 7)." On September 17, 2017, the day before Dorsey's trial commenced, trial counsel again e-mailed the prosecutor, this time to ask whether Dorsey could accept the State's original plea offer. The prosecutor responded, "No, he rejected that offer and a few subsequent ones." Before jury selection commenced, the trial court inquired whether a plea offer was on the table. Trial counsel responded that Dorsey had previously rejected a plea offer and that, as a result, the offer had been withdrawn. The prosecutor later explained that she withdrew the plea offer because Dorsey "was going back and forth and he was waffling."


Following a jury trial, Dorsey was found guilty of all counts. At the sentencing hearing, Dorsey's counsel informed the trial court that, when discussing with Dorsey the State's plea offer and the possible sentence Dorsey faced if he proceeded to trial, he failed to account for the effect of the sentencing provisions of both OCGA § 17-10-7 (a) and (c),[3] as well as the prohibition against probating a life sentence.[4] As a result, trial counsel incorrectly informed Dorsey that the trial court had discretion to impose a sentence of life imprisonment with or without parole on a conviction for armed robbery when, in fact, the trial court had no discretion but to sentence Dorsey to serve life without parole. Trial counsel also misadvised Dorsey that, if the trial court imposed a sentence of life with the possibility of parole, the court could "decide how much of [his] sentence would be parole eligible." Trial counsel did not realize his errors until after the trial had concluded. Trial counsel stated that Dorsey told him


"that had he known that the [trial court] would not have any discretion at sentencing that he would have gone ahead and pled guilty."

Dorsey timely moved for a new trial, alleging as error trial counsel's failure to correctly advise him during plea negotiations as to the sentence he faced if he proceeded to trial and was found guilty of armed robbery. Testifying at the motion for new trial hearing, trial counsel elaborated on the erroneous advice he gave during plea negotiations. According to trial counsel, he advised Dorsey that an armed robbery conviction carries a ten-year mandatory minimum sentence but that Dorsey "would have to receive the maximum sentence," that is, life imprisonment. Trial counsel explained to Dorsey - incorrectly - that while he would be required to serve the ten-year mandatory minimum in prison, the trial court could probate the remainder of the sentence at its discretion. He also told Dorsey - again, incorrectly - that any sentence beyond the mandatory minimum ten years was parole eligible. In a thorough and well-reasoned order, the trial court agreed that trial counsel was ineffective and granted Dorsey a new trial. The State challenges that ruling on appeal.

"If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. 156, 168 (II) (B) (132 S.Ct. 1376, 182 L.Ed.2d 398) (2012). To prevail on a claim that


his trial counsel was constitutionally ineffective, a defendant must demonstrate both that counsel's performance was deficient and that he suffered prejudice as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Walker v. State, 341 Ga.App. 742, 745 (2) (801 S.E.2d 621) (2017) (Strickland test applies to claims of ineffective assistance during plea negotiations). While "[t]here is a strong presumption that trial counsel provided effective representation[,] [w]hen trial counsel misunderstands the law . . . a defendant can establish that his trial counsel's conduct fell below an objective standard of reasonableness." (Citation and punctuation omitted.) Daniel v. State, 342 Ga.App. 448, 451 (2) (803 S.E.2d 603) (2017).

(a) We first consider whether trial counsel's performance was deficient. Relying on trial counsel's statements at sentencing and his testimony at the motion for new trial hearing, the trial court found that it was. Specifically, the trial court concluded that counsel was deficient by failing to take into account both of the recidivist-sentencing statutes at play in this case and by subsequently misadvising Dorsey that the trial court was not required impose a life sentence when, in fact, the court had no discretion to do otherwise given Dorsey's status as a recidivist.


With regard to the offer of a plea bargain, "[a] defendant is entitled to be fully informed of certain consequences of his decision to accept or reject a plea offer, including the right to the informed legal advice of counsel regarding the possible sentences that could be imposed following a conviction at trial." (Emphasis supplied.) Gramiak v. Beasley, 304 Ga. 512, 514 (I) (A) (820 S.E.2d 50) (2018). In addressing a claim of ineffective assistance similar to that at issue here, our Supreme Court has held that

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. . . . [T]he recidivist statute is, and has been, a prominent feature of our criminal justice system - anyone who is subject to it should be informed accurately about its consequences.

Alexander v. State, 297 Ga. 59, 65 (772 S.E.2d 655) (2015). See also Daniel, 342 Ga.App. at 451 (2) (a) (trial counsel was deficient where he mistakenly believed that trial court had discretion not to sentence defendant as a recidivist and, as a result, failed to advise defendant during plea negotiations that, if convicted at trial, he faced a mandatory sentence and would be ineligible for parole). The record supports the trial


court's finding that trial counsel misadvised Dorsey about the sentence he faced if he proceeded to trial, and we agree that counsel's performance was deficient.

The State challenges this conclusion, asserting that because Dorsey "knew that a life sentence was a possibility" when he rejected the plea, "he was not denied effective assistance of counsel merely because he was not told that a life sentence was mandatory." In the State's view, "[t]he law only requires that a defendant be informed that the consequences of rejecting a plea could be harsher than the consequences of accepting the plea." But the United States Supreme Court has roundly repudiated such an analysis, holding that "[a]n inquiry into whether the rejection of a plea is knowing and voluntary . . . is not the correct means by which to address a claim of ineffective assistance of counsel." Lafler, 566 U.S. at 173 (III). See also Missouri v. Frye, 566 U.S. 134, 141 (II) (A) (132 S.Ct. 1399, 182...

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