Wright v. State

• Decision Date: 03 July 2013
• Docket Number: No. A13A0164.,A13A0164.
• Citation: 322 Ga.App. 622,745 S.E.2d 866
• Parties: WRIGHT v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 622

745 S.E.2d 866

WRIGHT

v.The STATE.

No. A13A0164.

Court of Appeals of Georgia.

July 3, 2013.

Ashleigh Bartkus Merchant, Marietta, for Wright.

Peter Harry Boehm, Layla Hinton Zon, for the State.

McMILLIAN, Judge.

Mark Wright was convicted by a jury of two counts of child molestation, ¹ and sentenced to twenty years, ten to serve in prison. He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to convict him and that his counsel was ineffective. Having reviewed the record and transcript, and considered his claims of error, we now affirm.

[322 Ga.App. 623]1. Although Wright offers no specific argument in support of his enumeration that the evidence was insufficient to support his conviction, we have considered the evidence adduced at trial, including the victim's testimony, and find it sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to authorize Wright's conviction of two counts of child molestation as charged in the indictment.

2. Wright next challenges the effectiveness of his trial counsel.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga.App. 494, 498(2), 555 S.E.2d 819 (2001). And “[a] trial court's determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Andrews v. State, 320 Ga.App. 816(1), 739 S.E.2d 445 (2013).

Moreover, in determining whether counsel's performance was deficient, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation and punctuation omitted.) Ellis v. State, 292 Ga. 276, 286–287(4)(e), 736 S.E.2d 412 (2013). Thus,

decisions on which witnesses to call, whether to put on evidence so as to preserve the final word in closing argument, how to conduct cross-examinations, what motions to file, and what objections to make are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel.

(Citations omitted.) Schwindler v. State, 254 Ga.App. 579, 589(10), 563 S.E.2d 154 (2002). See also Sevostiyanova v. State, 313 Ga.App. 729, 738(11)(e), 722 S.E.2d 333 (2012).

(a) We first consider ² Wright's contention that his trial counsel was ineffective because he did not properly advise Wright of the risks associated with going to trial and the possible penalties he faced if convicted, with the result that Wright refused to accept the State's plea deal, which he says he now realizes he should have accepted.

As to this issue, the record shows that the State offered Wright a plea bargain deal of twenty years, two to be served in confinement. Following his conviction, Wright was sentenced to 20 years on each count, to run concurrently, with ten years to serve.

According to Wright's testimony at the motion for new trial hearing, he did not know that he was facing the possibility of a twenty-year sentence on each child molestation count until the day of trial. Further, he decided not to take the State's offer because his counsel advised him that he would have to register as a sex offender and because counsel told him that he believed Wright's case was “strong.”

Trial counsel also testified at the motion for new trial hearing, and stated he informed Wright on at least one occasion that he could be sentenced to 20 years on each child molestation count, and that although he informed Wright that he “believed” the judge would sentence him to five years, he also advised him that he could not be sure what the judge would do. Further, trial counsel testified that Wright wanted the charges dismissed and was not willing to accept any plea deal that required confinement. Moreover, at a motions hearing about six months before trial, the trial judge questioned Wright on the record to make sure that Wright had been told about the State's plea offer, confirmed that Wright had rejected that offer, and confirmed that Wright understood that he could be sentenced to whatever the judge thought was fair if he went to trial and was found guilty.

Based on the foregoing, we find that the record belies Wright's assertion that his trial counsel made “affirmative misrepresentations as to the penalties [he] faced.” Thus, his reliance on cases such as State v. Patel, 280 Ga. 181, 183, 626 S.E.2d 121 (2006), in which trial counsel made affirmative misrepresentations in response to his client's direct inquiries about the consequences of the entry of a plea of nolo contendere on his medical license is clearly misplaced.

Further, “in order to succeed on his claim he must show not only deficient performance, but also resulting prejudice. In the context of a rejected plea offer, such prejudice can only be shown by some indication that the defendant was amenable to the offer.” (Citation and punctuation omitted.) Port v. State, 295 Ga.App. 109, 112–113(2)(b), 671 S.E.2d 200 (2008). Although Wright argues on appeal that he would have taken the State's plea offer if he had known the maximum penalty, the record again shows otherwise. First, as stated above, not only does the record, in fact, show that Wright knew otherwise, but it also shows that he was not amenable to any offer that involved any time spent in confinement, which, according to trial counsel, was the only offer the State was willing to make. Thus, Wright has also failed to meet the prejudice prong of the ineffectiveness test. Id. Accordingly, this enumeration presents no grounds for reversal of the denial of Wright's motion for new trial.

(b) In his next enumeration, Wright claims that his counsel was ineffective because he failed to preserve all parts of the trial for review on appeal. However, although appellate counsel questioned both Wright and his trial counsel about the failure to have voir dire and the opening and closing remarks of counsel transcribed, Wright has posited no argument in support of this enumeration in his brief on appeal. Thus, this claim of error is deemed abandoned pursuant to Court of Appeals Rule 25(c)(2).

(c) Wright also contends that his trial counsel was ineffective because he did not object when the trial court, at the jury's request, replayed the victim's videotaped interview and because he did not request that the trial court give instructions on replaying the video.

As Wright acknowledges, the decision whether to grant a jury's request to view a videotape of testimony or a statement a...