Upton v. Johnson, S07A1089.

• Decision Date: 29 October 2007
• Docket Number: No. S07A1089.,S07A1089.
• Citation: 652 S.E.2d 516
• Parties: UPTON v. JOHNSON.
• Court: Georgia Supreme Court

652 S.E.2d 516

UPTON v. JOHNSON.

No. S07A1089.

Supreme Court of Georgia.

October 29, 2007.

Steven Mark Rodham, The Womack Law Firm, P.C., Lafayette; Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., Department of Law, Atlanta, for Appellant.

Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellee.

BENHAM, Justice.

This appeal is from the grant of habeas corpus relief based on ineffective assistance of counsel, specifically on the failure to research double jeopardy issues and the provision of incorrect advice on that subject, leading to a guilty plea. James Johnson was indicted in Whitfield County for kidnapping, false imprisonment, criminal attempt to commit murder, and possession of tools for the commission of a crime. He was indicted three months later in Cobb County for kidnapping with bodily injury and two counts of aggravated assault. All the charges arose from an incident in which Johnson, waiting in his estranged wife's Cobb County home when she arrived, accused her of having been with another man, assaulted her, rendered her unconscious, put her in the trunk of her car, put their child in the car, and drove away. She awoke as he drove and opened the trunk partially, attracting the attention of passers-by. After driving from Cobb County to Whitfield County, Johnson stopped at a service station where the victim was able to escape with the aid of bystanders while Johnson drove away with their child in the car.

Pursuant to a plea agreement, Johnson entered a guilty plea in Cobb County to a single charge of kidnapping with bodily injury for which he received a life sentence. Under the agreement, the other charges in Cobb County were nolle prossed, as were all the charges in Whitfield County. Johnson subsequently filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel and coercion of his guilty plea by counsel. At the hearing on his petition, Johnson testified, and the habeas corpus court found as a fact, that counsel had told Johnson that if he did not plead guilty in Cobb County and accept a life sentence, he would also be prosecuted in Whitfield County and could be sentenced there to a consecutive term of imprisonment for life without the possibility of parole. The habeas corpus court also found as a fact that if Johnson had known he could not be sentenced to a consecutive term of life without parole in Whitfield County, he would have insisted on going to trial in Cobb County. The habeas corpus court ruled that counsel had incorrectly told Johnson he would be subject to the "90% rule" formerly applied by the Georgia Board of Pardons and Parole, and had failed to research issues relating to double prosecution in different counties. Finding counsel's performance deficient for failing to determine the viability of the separate prosecutions, for misadvising Johnson that the parole board's 90% rule applied, and for telling him he could receive life without parole in Whitfield County when application of the constitutional principle of double jeopardy required the contrary conclusion, the habeas corpus court set aside the conviction. The warden appeals that judgment.

"To prove ineffective assistance of counsel in connection with a guilty plea ..., a defendant must prove that his counsel was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty." Smith v. Williams, 277 Ga. 778(1), 596 S.E.2d 112 (2004). In the present case, the habeas corpus court found deficient performance of trial counsel in giving incorrect advice and found as a fact that Johnson would have gone to trial rather than plead guilty had he not been told he was subject to a consecutive term of life without the possibility of parole. "`The proper standard of review requires that we accept the habeas court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Wetherington v. Carlisle, 273 Ga. 854, 855, 547 S.E.2d 559 (2001). When there is evidence to support the habeas corpus court's factual findings, those findings cannot be found to be clearly erroneous. Id. The record in this case contains evidence in the form of Johnson's testimony to support the habeas corpus court's findings, so we must accept its findings regarding what trial counsel told Johnson and its finding that Johnson would not have pleaded guilty had he known he could not be sentenced in Whitfield County to a consecutive life sentence without parole.

The dissent's argument regarding the prejudice prong is based on a single statement in the trial court's order in which the trial court appears to attempt to explain why Johnson would not have pleaded guilty had he been advised properly. The trial court's musing regarding Johnson's motivation was not necessary to its decision and was not supported by Johnson's testimony. In fact, Johnson's testimony was unequivocal that he would not have entered a guilty plea had he known that a sentence of life without parole was not a possibility in Whitfield County. Because the dissent's argument that the prejudice prong was not met was based solely on a phrase in the trial court's order for which there was no evidentiary support, the argument is devoid of merit. Thus, no issue of merger properly arises in this case and the dissent's discussion of Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006), is irrelevant.

Since the prejudice prong of an ineffective assistance of counsel claim is established by showing the existence of a reasonable probability that, but for counsel's errors, the accused would not have pleaded guilty and would have insisted on going to trial (Davis v. Murrell, 279 Ga. 584, 585, 619 S.E.2d 662 (2005)), the prejudice prong of Johnson's claim is established by the habeas corpus court's finding. Accordingly, we turn to consideration of the correctness of the habeas corpus court's conclusion that trial counsel's performance was deficient.

Since the prejudice found by the trial court related only to trial counsel advising Johnson he could be sentenced to life without parole in Whitfield County, we need consider in regard to the deficiency prong of the ineffectiveness claim only the question of whether that advice was faulty. Of the crimes for which Johnson was indicted in Whitfield County, only kidnapping had any potential for imposition of a life sentence.¹ The kidnapping charge on its own, since bodily injury was not alleged, would have carried a maximum sentence of 20 years under OCGA § 16-5-40(b)(1), but since Johnson had prior felony convictions, a possibility existed of his being sentenced to life without parole under OCGA § 17-10-7(b)(2). Thus, if the kidnapping charge in Whitfield County were not barred by double jeopardy, the advice on which the habeas corpus court found Johnson to have relied in making his plea decision would not necessarily have been defective.

The habeas corpus court, considering the Cobb County indictment, the establishment of the factual basis for the guilty plea in Cobb County, the allegations of the Whitfield County indictment's kidnapping count, and this Court's decision in Perkinson v. State, 273 Ga. 491(1), 542 S.E.2d 92 (2001), concluded the kidnapping charge in Whitfield County would have been barred by the constitutional principle of double jeopardy because the two charges referred to a single offense, rendering counsel's advice defective. Appellant argues that the habeas corpus court erred in applying Perkinson to the present case because its finding that the two kidnapping charges were the same offense was based on speculation regarding what the evidence would have been in the Whitfield County prosecution. That argument is based primarily on the fact that in Perkinson, the parties stipulated to what would have been shown in the second prosecution whereas the habeas corpus court in the present case relied on the factual basis for the Cobb County kidnapping charge and the language of the two indictments. Our review of the record persuades us a stipulation such as that in Perkinson was not necessary here because the factual basis for the Cobb County guilty plea, when considered with the two indictments, establishes without speculation that the two kidnapping charges set forth the same elements of the crime, conclusively showing they stemmed from a single continuous transaction in which Johnson abducted the victim in Cobb County and drove her into Whitfield County, and thus allege the same offense.

The dissent in this case adopts the State's speculation argument, but again fails to take into account the record. The record of the guilty plea hearing in Cobb County, introduced into evidence at the habeas corpus hearing, contains a narrative that tracks the occurrences on which the indictments were based from their inception in Cobb County all the way through to Johnson's arrest in Whitfield County. To suggest there were some unknown facts on which a separate Whitfield County kidnapping charge could have been based is unwarranted. The facts were established in the record and the dissent's speculation cannot change the fact that both kidnapping charges were based on the single kidnapping of the same victim on the same day.

Since, as in Perkinson, the kidnapping charges in the two counties were the same offense and the kidnapping prosecution in Whitfield County would be barred by double jeopardy, trial counsel's advice that Johnson could be prosecuted for kidnapping in Whitfield County and be sentenced to a consecutive term of life imprisonment without the possibility of parole was, as the habeas corpus court concluded, incorrect. Here, as in Gerisch v. Meadows, 278 Ga. 641(3), 604 S.E.2d 462 (2004), counsel's faulty advice "was not within the range of competence required of attorneys in criminal cases." Id. That being so, the habeas corpus c...