Sutton v. State, A03A1158.

Citation587 S.E.2d 379,263 Ga. App. 188
Decision Date12 September 2003
Docket NumberNo. A03A1158.,A03A1158.
PartiesSUTTON v. The STATE.
CourtUnited States Court of Appeals (Georgia)

587 S.E.2d 379
263 Ga.
App. 188


No. A03A1158.

Court of Appeals of Georgia.

September 12, 2003.

587 S.E.2d 381
Donald B. Lowe III, Savannah, for appellant

Spencer Lawton, Jr., Dist. Atty., Jon Hope, Asst. Dist. Atty., for appellee.

587 S.E.2d 380
RUFFIN, Presiding Judge

A jury found Darren Lavon Sutton and his co-defendant, Travis Betterson, guilty of armed robbery, possession of a firearm during the commission of a felony, and theft by receiving a motor vehicle.1 On appeal, Sutton argues that he is entitled to a new trial because the trial court misinformed him about the sentencing possibilities before trial began, impacting his decision to reject the State's plea offer. Sutton also claims that the trial court should have severed his trial from the trial of his co-defendant and should have granted a mistrial following an error in the jury instructions. For reasons that follow, we affirm.

Viewed in the light most favorable to the jury's verdict,2 the evidence [263 Ga. App. 189] shows that in the early morning of July 24, 2000, Allen Griffin was at a gas station, preparing his truck for a trip to Florida. As Griffin checked his truck, he noticed a Cadillac arrive with two or three people inside. A man got out of the Cadillac and asked Griffin for directions to the rest room, and Griffin responded. A few moments later, another man ran toward Griffin with a gun and ordered him, at gunpoint, to empty his pockets onto the ground. Griffin saw the Cadillac move in front of his truck as the gunman picked up his possessions. Although Griffin did not see the gunman get into the Cadillac, the car drove away shortly after the gunman fled.

Griffin immediately reported the robbery and described the Cadillac to the police. Soon thereafter, an officer spotted a vehicle matching Griffin's description. A chase ensued, ending when the Cadillac crashed. The officer then saw two men climb out of the car and run into the woods. When police searched the woods, they found Sutton and Betterson lying on the ground.

An officer brought Griffin to the scene of the wreck, where he identified Sutton as the man who robbed him. A search of the Cadillac produced three guns, as well as items belonging to Griffin. The police subsequently discovered that the Cadillac had been reported stolen a few days earlier.

1. Sutton argues that he is entitled to a new trial because a comment made by the trial judge allegedly "interfered with the attorney/client relationship between [Sutton] and [his] trial counsel," influencing his decision to decline a plea bargain offered by the State. We disagree.

The record shows that, in March 2000, Sutton pled guilty to theft by receiving stolen property and obstructing an officer. The court sentenced him to probation under the First Offender Act.3 Prior to trial in this case, the court revoked Sutton's probation and adjudicated him guilty of those charges, sentencing him to five years in prison.

Shortly before this trial began, defense counsel placed Sutton on the stand to question him regarding the State's plea offer. Defense counsel informed him on the record that the minimum prison sentence for armed robbery is ten years, while the maximum prison sentence is life.4 Counsel then prepared to tell Sutton that, because he had been indicted as a recidivist, the judge would be required to sentence him to the maximum—life imprisonment. At that point, however, the prosecutor interrupted, expressing

587 S.E.2d 382
doubt as to whether a life sentence would be mandatory since Sutton was a "first offender probationer," rather than a convicted felon, at the time Griffin was [263 Ga. App. 190] robbed. The trial court interjected that "[t]he range of punishment [for armed robbery] is 10-20 [years in prison] or life." Sutton later rejected the plea bargain. After the jury found him guilty, the court resolved the earlier confusion and properly sentenced him to life in prison pursuant to OCGA § 17-10-7(a).5

We find no reversible error. Although the trial court did not inform Sutton that he would receive a mandatory life sentence if convicted, it clearly stated that life imprisonment was possible. We addressed a similar situation in Whitehead v. State,6 in which we held that defense counsel does not provide ineffective assistance when, because of confusion about the applicable law, counsel tells the defendant that a statutorily mandated life sentence is a possibility, but not a certainty. We noted that such advice alerts the defendant that "the consequences of refusing the State's [plea] offer ... could be harsher than the consequences of accepting it."7

While Sutton claims that the trial court, not his attorney, misled him, the Whitehead reasoning still applies. Because Sutton knew that he could receive a life sentence, he was sufficiently apprised of the risks of going to trial.8 Accordingly, Sutton is not entitled to a new trial on this basis.

2. Sutton also argues that the trial court erred in denying his motion for severance and his corresponding motion for mistrial. The decision whether to grant a defendant's motion for severance is within the...

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11 cases
  • Rouse v. State, S14A1165.
    • United States
    • Supreme Court of Georgia
    • November 17, 2014
    ...under OCGA § 17–8–57 because it did not address credibility of the witnesses or any fact at issue in trial); 296 Ga. 217Sutton v. State, 263 Ga.App. 188, 191, 587 S.E.2d 379 (2003) (no reversible error when trial court explained to jurors how to use verdict form, but instructed them “to rem......
  • Carson v. State, A03A1403.
    • United States
    • United States Court of Appeals (Georgia)
    • December 1, 2003
    ...U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 2. Howard v. State, 251 Ga.App. 243, 245(7), 553 S.E.2d 862 (2001). 3. Sutton v. State, 263 Ga.App. 188, 190(1), 587 S.E.2d 379 4. Lloyd v. State, 258 Ga. 645, 648(2)(b), 373 S.E.2d 1 (1988). 5. Woods v. State, 275 Ga. 844, 846(3), 573 S.E.2d......
  • Patel v. State, S07A0889.
    • United States
    • Supreme Court of Georgia
    • September 24, 2007
    ..."slip of the tongue" the [282 Ga. 415] appellate courts have excused from the strict mandate of OCGA § 17-8-57. Compare Sutton v. State, 263 Ga.App. 188(3), 587 S.E.2d 379 (2003); Atkins v. State, 253 Ga.App. 169(2)(b), 558 S.E.2d 755 (2002). We also reject the State's contention that the i......
  • Wall v. James, A20A2058
    • United States
    • United States Court of Appeals (Georgia)
    • January 15, 2021
    ...State , 273 Ga. App. 235, 238 (3), 614 S.E.2d 849 (2005) (explaining that "statements by attorneys are not evidence"); Sutton v. State , 263 Ga. App. 188, 191 (2), 587 S.E.2d 379 (2003) (same).12 See Butts Cnty. v. Pitts , 214 Ga. 12, 15, 102 S.E.2d 480 (1958) (taking judicial notice that A......
  • Request a trial to view additional results

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