Brown v. Parody , 294 Ga. 240 ( 2013 )

MELTON, Justice.

Following the grant of habeas relief to Timothy Parody premised on a finding that he received ineffective assistance of trial counsel, Dennis Brown, acting as the warden of Augusta State Medical Prison, appeals. For the reasons that follow, we reverse.

1. “In reviewing the grant or denial of a petition for habeas corpus, this Court accepts the habeas court’s factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the law to the facts.” (Citation omitted.) Henderson v. Hames, 287 Ga. 534, 536 (2) (697 SE2d 798) (2010). The record shows that, on January 13, 2011, Parody pled guilty but mentally ill to two counts of child molestation involving acts he committed on his younger brother. As part of a plea bargain, the State agreed to dismiss three additional charges of aggravated child molestation which Parody would have otherwise faced at a trial. After a hearing, the trial court accepted Parody’s plea, and Parody was sentenced to fifteen years of incarceration in a medical prison where he would receive treatment with an additional fifteen years of probation. On June 29, 2012, Parody, acting pro se, filed an application for writ of habeas corpus, contending that his trial counsel was ineffective because she failed to investigate all mitigating factors in regards to his mental health condition and his competency to stand trial. Following a hearing, the habeas court granted Parody’s request for habeas relief. This ruling was incorrect, as Parody proved neither deficient performance nor prejudice.

2. “Similar to other claims of ineffective assistance, a habeas petitioner seeking to overcome a procedural default must show professionally deficient performance by trial or direct appeal counsel and that the deficiencies had a reasonable probability of changing the outcome of the [proceeding]. See Strickland [o. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)]; Hall v. Lewis, 286 Ga. 767, 769 (692 SE2d 580) (2010).” Perkins v. Hall, 288 Ga. 810, 822 (III) (C) (708 SE2d 335) (2011).

(a) Although the habeas court found to the contrary, the undisputed facts of record show that trial counsel did not render ineffective assistance with regard to consideration of Parody’s competency. Prior to the entry of his plea, Parody underwent three mental evaluations. The first was conducted on March 9, 2010 by Jackie Cox Thompson, a doctor retained by Parody.¹ Dr. Thompson opined that Parody

does not comprehend or understand the consequences of his actions. It would be my recommendation that he have a full evaluation, be placed on appropriate medications to help him function more appropriately, and to look into a more stable living environment for him. I realize that he has serious charges against him, but I would like to see him have some kind of treatment, total evaluation, and then to re-visit whether he is competent to stand trial.

The second evaluation, performed at the request of the trial court, was one to determine Parody’s threat level to the community as a sex offender, not his mental capacity generally. This evaluation concluded that Parody presented a high risk of being a repeat sex offender, that Parody would benefit from continued treatment, and that, as a result, he was not a good candidate for incarceration in a general jail population. Finally, at the request of plea counsel, the trial court ordered that Parody be evaluated by Dr. Lynn M. Katzenmeyer, a psychologist at Georgia Regional Hospital. In a report dated December 3, 2010, Dr. Katzenmeyer found that Parody was competent to stand trial based on a “clear, rational appreciation of his criminal charge.” Dr. Katzenmeyer reached this conclusion by interviewing Parody and by reviewing, among other things, both of the prior evaluations listed above.

With all of this information, plea counsel discussed the options of entering a plea or going to trial with both Parody and his parents. All agreed that they wanted to avoid a trial if at all possible. To obtain this result, plea counsel pressed the State for a plea agreement, which was ultimately negotiated and offered. This agreement to enter a plea of guilty but mentally ill allowed Parody to avoid prosecution for the most serious charges against him,² to be placed in a medical prison rather than the general prison population, and to receive treatment — all things recommended by the experts evaluating his mental condition.

Despite the beneficial nature of the agreement, Parody’s plea counsel expressed her concerns regarding Parody’s mental capacity prior to the entry of the plea. As a cautionary matter, the trial court entered into an extended and wide-ranging colloquy with Parody at the plea hearing. During this conversation, Parody discussed his love of reading, his favorite novelist, his understanding of the specific charges against him, and his knowledge of the court system — including an unsolicited criticism that it too often seemed to be premised on an assumption of guilt rather than innocence. Following this colloquy, the trial court made its own assessment that Parody was competent to stand trial and enter his guilty plea. Therefore, at the time that the plea was entered, the trial court, through its own interaction, found Parody to be competent, and an expert at Georgia Regional found him competent as well, taking into consideration the two previous evaluations.

With the benefit of three separate evaluations, discussions with both her client and his parents, and a consideration by the plea court of Parody’s competency, plea counsel secured a beneficial plea agreement for Parody. As a result, the facts of record simply do not support the habeas court’s legal conclusion that plea counsel failed to conduct an effective investigation of her client’s mental competency. Based on all of the evidence before her, plea counsel’s actions were clearly reasonable, and there was no ineffective assistance. Strickland, supra.

In finding to the contrary, the habeas court ventured away from the failure to investigate claim that was actually asserted and, instead, narrowly focused on two things, rather than the entire state of the evidence. First, during the habeas hearing, the habeas court asked plea counsel whether all three of the mental evaluations showed that Parody was competent to stand trial. Plea counsel responded, “I believe so[, but] I can look back if you would like for me to, though.” Singling out this testimony, the habeas court found that “it highlights the defects” in plea counsel’s representation because the first and third mental evaluations were contradictory and plea counsel was ineffective for relying on the third evaluation. The habeas court’s conclusion is factually and legally incorrect. The first report actually determined that, while Parody appeared to be incompetent, he should receive a full evaluation at a later time to revisit his competency or lack thereof. In fact, his competency was revisited over eight months later by a Georgia Regional psychologist who took into account the first evaluation. Plea counsel acted reasonably by placing great weight on this study, which was performed shortly before the plea hearing and included an expert review of the results of prior evaluations. Second, the habeas court emphasized Parody’s behavior at the habeas hearing, finding that it raised “serious doubts as to whether [Parody] truly understood the nature of the proceedings in which he entered a plea of guilty but mentally ill.” The habeas court’s assessment of Parody’s mental state at the time of the habeas hearing, however, is only marginally relevant to the question of Parody’s mental state at the time of the plea hearing, almost two years earlier, when another court closely observed Parody’s behavior and reached a different conclusion. The habeas court does not address the plea court’s firsthand impression of Parody’s competence at the plea hearing. In any event, Parody’s behavior at the habeas hearing in no way shows that his plea counsel was deficient in her assistance with his entry of a prior guilty plea.

(b) Even if there had been deficient performance by counsel in this case, there has been no showing of prejudice. To show sufficient prejudice to warrant relief, a petitioner must show that “there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different [cit.].” Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Areview of the habeas court’s conclusory and unsupported ruling on prejudice shows that it did not even use the appropriate standard. That ruling, in its entirety, is as follows:

Had Trial Counsel investigated [Parody’s] mental condition and utilized evidence of his mental incompetence in either plea negotiations or a jury trial, this court respectfully submits that [Parody’s] outcome could have been different. As such, [Parody] was prejudiced by Counsel’s ineffective assistance of counsel and the second prong of the Strickland standard is established.

(Emphasis supplied.) Even overlooking that there was nothing identified that plea counsel failed to investigate, the test is not whether the result could have been different. The test is that there must be a reasonable probability that it would have been different. Nothing in the record supports a finding of prejudice, and there is absolutely no contention or support that Parody would have received a more beneficial result had anything been done differently.

Judgment reversed.

All the Justices concur, except Benham and Hunstein, JJ., who dissent.

1 At the time of this evaluation, Parody had a different lawyer than the one who handled his plea.

2 The aggravated child molestation charges each carried a maximum sentence of life imprisonment and a mandatory minimum sentence of 25 years. OCGA § 16-6-4 (d) (1).