Zant v. Means, S99A0924.

• Decision Date: 18 October 1999
• Docket Number: No. S99A0924.,S99A0924.
• Citation: 522 S.E.2d 449,271 Ga. 711
• Parties: ZANT v. MEANS.
• Court: Georgia Supreme Court

522 S.E.2d 449

271 Ga. 711

ZANT v. MEANS.

No. S99A0924.

Supreme Court of Georgia.

October 18, 1999.

Reconsideration Denied November 15, 1999.

Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Frank A. Ilardi, Daniel G. Ashburn, Angelica M. Woo, Assistant Attorneys General, for appellant.

Stephen T. Maples, Bernard Knight, Decatur, for appellee.

HINES, Justice.

This appeal is from the grant of a petition for habeas corpus on a claim of ineffective assistance of trial counsel. Because the habeas court ruled that Means was prejudiced by counsel's conduct without there being any evidence showing such prejudice, we reverse.

Means was indicted in 1992 on charges of kidnapping, rape, and aggravated assault. When he was apprehended in Colorado, he told police that he had "raped a girl back there," but Means later told counsel that he believed he was not guilty of rape because no penetration occurred, although he ejaculated outside the victim's vagina. Counsel arranged for a DNA test which showed that the victim's vaginal sample contained DNA from only the victim. By plea agreement, Means pled guilty to the rape charge and received a recommended sentence of 20 years; an order of nolle prosequi was entered on the kidnapping and aggravated assault charges. At the plea hearing and after recitation of the facts of the case, Means stated that he was, in fact, guilty of rape. Means filed a petition for habeas corpus relief challenging his conviction and sentence, claiming ineffective assistance of counsel. He contends that the victim's medical record prepared after the event included her statement that the perpetrator did not penetrate her, and that counsel had not arranged to see this document, and that if he had, counsel would have recognized a complete defense to the rape charge.¹ Counsel testified that he had not seen the record and had not spoken with the victim, but that even if he had, his advice would have remained that Means plead guilty to rape. Because of counsel's examination of the DNA test result and his discussions with Means, counsel was convinced that Means had a viable "no penetration" defense to the rape charge, but counsel also testified that even after discussing this with the prosecuting attorney, the only plea arrangement to which the prosecuting attorney would agree was a guilty plea on the rape charge. Counsel saw no viable defense to the kidnapping or aggravated assault charges and recognized the possibility that the victim could testify at trial that there had been penetration. Considering that the maximum penalty for rape was life in prison and the other charges each carried 20-year maximum sentences, counsel believed that by far the wisest course was to accept the State's offer of a guilty plea on the rape charge and a recommendation of a 20-year sentence.

The habeas court found that counsel's performance was deficient and granted the writ.² Zant contends this was error.

In order to prevail on a claim of ineffective assistance of counsel, Means must show both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As Means pled guilty, he must prove that had it not been for the deficient performance of counsel, he would not have pled guilty and instead would have gone to trial. Thompson v. Greene, 265 Ga. 782, 785(2), 462 S.E.2d 747 (1995).

Because Means has failed to show prejudice, we need not address the habeas court's determination that counsel's performance was deficient. A claim of ineffective assistance of counsel is a mixed question of law and fact. Strickland, supra at 698, 104 S.Ct. 2052; Lajara v. State, 263 Ga. 438, 440(3), 435 S.E.2d 600 (1993). 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. Turpin v. Mobley, 269 Ga. 635, 639(3), 502 S.E.2d 458 (1998).

As regards prejudice, the habeas court's order recites: "Petitioner has also shown that but for this unprofessional lack of assistance by Counsel, the result of the proceedings would have been different. Under the available facts in this case it would have been reasonable after obtaining the evidence in the case for Counsel to file a pre-trial motion or recommended [sic] to his client that since he had a defense to the charge of rape that they go to trial." However, the only evidence of the effect of any examination by counsel of further evidence is counsel's testimony that he would not have made any such recommendation even if he had seen the document at issue. Knowing he had a "no penetration" defense to the rape charge, Means still chose to plead guilty to that charge, stating that he was, in fact, guilty. At the habeas hearing, there was no evidence that Means would have insisted on going to trial despite co...