Walker v. the State , 341 Ga. App. 742 ( 2017 )


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  •                               THIRD DIVISION
    ELLINGTON, P. J.,
    ANDREWS and RICKMAN, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules
    June 14, 2017
    In the Court of Appeals of Georgia
    A17A0437. WALKER v. THE STATE.
    ANDREWS, Judge.
    Harden Walker was found guilty by a jury of rape and false imprisonment and
    was sentenced to life imprisonment plus five years. Walker appeals claiming the
    evidence of venue was insufficient and that the trial court erred by denying his motion
    for a new trial on the basis of ineffective assistance of counsel. For the following
    reasons, the judgment of conviction is affirmed, the sentence is affirmed on condition,
    and the case is remanded with directions.
    1. Walker’s only challenge to the sufficiency of the evidence concerns whether
    the State carried its burden to produce evidence establishing venue – that the charged
    offenses were committed in Fulton County, as alleged in the indictment.
    In criminal cases, venue (the county where the charged crime was committed)
    is an essential element which must be proved beyond a reasonable doubt. Ga. Const.
    1983, Art VI, Sec. II, Par. VI; Bell v. State, 
    284 Ga. 790
    , 792 (671 SE2d 815) (2009).
    As with any element of a charged crime, the State may use direct or circumstantial
    evidence to prove venue. 
    Id. at 793
    .
    The State presented the following evidence to prove the charged crimes.
    Walker was indicted in 2010 on charges that in July of 1990 he committed the
    offenses of rape and false imprisonment against the victim. A short distance from a
    night club located in Midtown Atlanta, the victim accepted a ride from two men who,
    against the victim’s will, drove the victim to a nearby field where both men
    threatened to kill the victim’s family and then, forcibly and against the victim’s will,
    had sex with the victim in the car. After the men could not start the car, the victim
    escaped and ran screaming to a nearby house located in the 600 block of Vernon
    Avenue in Fulton County where the occupant called police. When City of Atlanta
    police arrived at the house, they immediately took the victim to Grady Hospital where
    a sexual assault exam was performed, DNA samples were collected from the victim’s
    vagina, and a rape kit containing the samples was sent to the GBI crime lab. Because
    it was dark, the victim never got a good look at the men so she was unable to identify
    2
    the rapists to police. Without a suspect whose DNA profile could be compared to the
    DNA samples from the victim’s vagina, the case remained cold for about 20 years.
    In 2010, pursuant to a request by the City of Atlanta police, the crime lab tested the
    samples from the victim’s rape kit, established that male DNA was in the samples,
    and generated a profile of the male DNA which matched known DNA profiles of
    Walker contained in an existing DNA database and in buccal swabs obtained from
    Walker by search warrant. The City of Atlanta police officer assigned to investigate
    the case in 1990 testified that the night club and the house the victim ran to
    immediately after the rape were located in Fulton County and that the incident
    occurred in Fulton County.
    The evidence was sufficient for the jury to find beyond a reasonable doubt that
    Walker was guilty of the charged offenses of rape and false imprisonment. OCGA §§
    16-6-1 (a) (1); 16-5-41 (a). The direct and circumstantial evidence was also sufficient
    for the jury to find beyond a reasonable doubt that the charged offenses were
    committed in Fulton County, as alleged in the indictment.
    2. Walker contends on two grounds that his trial counsel was ineffective, and
    that the trial court erred by denying his motion for a new trial on these grounds.
    3
    To prevail on a claim of ineffective assistance, [Walker] must
    prove both that the performance of his lawyer was deficient and that he
    was prejudiced by this deficient performance. Strickland v. Washington,
    
    466 U.S. 668
    , 687(III) (104 SCt 2052, 80 LE2d 674) (1984). To show
    that the performance of his lawyer was deficient, [Walker] must prove
    that she performed her duties at trial in an objectively unreasonable way,
    considering all the circumstances, and in the light of prevailing
    professional norms. 
    Id.
     at 687–688(III)(A). See also Kimmelman v.
    Morrison, 
    477 U.S. 365
    , 381(II)(C) (106 SCt 2574, 91 LE2d 305)
    (1986). And to show that he was prejudiced by the performance of his
    lawyer, [Walker] must prove “a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would have
    been different. A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.” Strickland, 
    466 U.S. at 694
    (III)(B). See also Williams v. Taylor, 
    529 U.S. 362
    , 391(III) (120
    SCt 1495, 146 LE2d 389) (2000). This burden, though not impossible
    to carry, is a heavy one. See Kimmelman, 
    477 U.S. at 382
    (II)(C).
    Arnold v. State, 
    292 Ga. 268
    , 269-270 (737 SE2d 98) (2013). In considering an
    ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings
    and credibility determinations unless clearly erroneous, but we independently apply
    the legal principles to the facts.” Leonard v. State, 
    292 Ga. 214
    , 217 (735 SE2d 767)
    (2012) (citation and punctuation omitted)
    In the first ground, Walker contends that trial counsel was ineffective for
    pursuing a defense that the crime lab’s DNA test results were faulty when discovery
    evidence showed otherwise. At the hearing on Walker’s new trial motion, his trial
    counsel testified that, prior to trial, she subpoenaed all of the crime lab testing data
    4
    on the DNA obtained from the victim’s vagina after the rape, hired a DNA expert
    from Georgia Tech to review the DNA testing, and the expert reviewed the testing
    data and told her that the crime lab testing was inadequate and “wasn’t enough to
    prove that it was Mr. Walker’s DNA.” Counsel relied on this expert opinion to
    formulate a defense for the trial. Counsel testified that, after the State presented
    witnesses at trial from the crime lab establishing the crime lab testing procedures, she
    spoke to her expert witness during a recess of the trial, and the expert reviewed the
    testing data again and told her that he had made a mistake in his initial review and
    that the crime lab DNA testing was accurate. According to trial counsel, if she had
    called the expert as a witness at trial, the expert would have confirmed the crime lab
    testing, so she made a strategic decision not to call him. We find no error in the trial
    court’s conclusion that Walker failed to show that trial counsel’s performance was
    deficient. Under the circumstances, counsel’s decision not to call the expert witness
    at trial was a reasonable strategic decision. Moreover “[a] defendant is not
    constitutionally entitled to any certain level of effective assistance from experts that
    are reasonably selected by trial counsel.” Smith v. State, 
    283 Ga. 237
    , 239 (657 SE2d
    523) (2008) (citation and punctuation omitted). Walker does not claim that the expert
    was not reasonably selected by trial counsel, and we find under the circumstances that
    5
    counsel’s reliance on the expert’s erroneous initial opinion was not deficient
    performance. The trial court did not err by denying Walker’s motion for a new trial
    on this ground. Strickland, supra.
    In the second ground, Walker contends that trial counsel was ineffective for
    failing to adequately advise him regarding a pre-trial plea offer from the State. The
    two part test under Strickland, 
    supra,
     also applies to Walker’s allegations of
    ineffective assistance during plea negotiations. Alexander v. State, 
    297 Ga. 59
    , 63
    (772 SE2d 655) (2015). During pre-trial plea negotiations, the State offered to
    recommend to the trial court that Walker serve 20 years in prison in exchange for his
    guilty plea to the charged offenses of rape and false imprisonment. It is undisputed
    that, when the State made the plea offer, both the prosecutor and Walker’s trial
    counsel erroneously believed that 20 years was the maximum sentence that Walker
    could receive on the rape charge, when, in fact, he could receive a life sentence.
    Based on counsel’s erroneous advice that 20 years was the maximum rape sentence,
    Walker rejected the plea offer, went to trial, was convicted on both charges, and
    received a sentence of life imprisonment for rape plus five years for false
    imprisonment. Walker testified at the hearing on the new trial motion that trial
    counsel told him about the State’s 20 year plea offer and that “more than likely” he
    6
    would have taken the plea offer if trial counsel had advised him that the maximum
    sentence for rape was life imprisonment. Although Walker testified that he did not
    learn about the possibility of life imprisonment until sentencing, trial counsel testified
    that, just prior to opening statements, the prosecutor told her that the maximum
    sentence for the rape charge was life imprisonment and that Walker was also made
    aware at that time that the maximum sentence was life.
    “If a plea bargain has been offered, a defendant has the right to effective
    assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 
    566 U.S. 156
    , 168 (132 SCt 1376, 182 LE2d 398) (2012). Because trial counsel’s erroneous
    advice that 20 years was the maximum rape sentence was clearly deficient
    performance under the first Strickland prong, the issue is whether Walker proved
    under the second Strickland prong that counsel’s deficient performance prejudiced
    the defense.
    Where counsel’s deficient advice has led a defendant to reject a plea offer and
    stand trial, to establish prejudice under the second Strickland prong,
    a defendant must show that but for the ineffective advice of counsel
    there is a reasonable probability that the plea offer would have been
    presented to the court (i.e., that the defendant would have accepted the
    plea and the prosecution would not have withdrawn it in light of
    intervening circumstances), that the court would have accepted its terms,
    7
    and that the conviction or sentence, or both, under the offer’s terms
    would have been less severe than under the judgment and sentence that
    in fact were imposed.
    Lafler, 
    566 U.S. at 164
    . In addressing the prejudice prong, the trial court ruled that
    Walker learned during the trial that the maximum sentence for rape was life rather
    than 20 years, that “before and during trial, [Walker] repeatedly rejected a plea offer
    of twenty years to serve,” and that “nothing in the record suggests that [Walker]
    would have acted any differently had the proper sentence guidelines been conveyed
    to him prior to trial.” Essentially, the trial court ruled that Walker failed to show he
    was prejudiced by counsel’s deficient advice because (with knowledge that life was
    the maximum sentence) he repeatedly rejected the State’s 20 year plea offer. We find
    no support in the record for this ruling. Evidence showed that Walker rejected the
    State’s pre-trial 20 year plea offer prior to learning that life imprisonment was the
    maximum sentence for rape. But there is nothing in the record showing that, after trial
    counsel and Walker learned from the prosecutor that life was the maximum sentence,
    the State re-offered a 20 year plea deal or Walker rejected it. Accordingly, we vacate
    the trial court’s ruling on the prejudice prong.
    We remand the case with directions that the trial court reconsider the prejudice
    prong and make appropriate factual findings and legal conclusions under the above-
    8
    stated test in Lafler, 
    supra.
     For example, assuming that Walker demonstrated a
    reasonable probability that but for counsel’s deficient advice he would have accepted
    the pre-trial 20 year plea offer, to establish prejudice, Lafler requires additional
    findings that the prosecutor would not have withdrawn the plea offer in light of
    intervening circumstances, or that, assuming the plea offer would have been
    presented to the court, the court would have accepted its terms.1 If the trial court finds
    on remand that Walker failed to show prejudice, then the sentence Walker received
    at trial is affirmed. If the trial court concludes on remand that the prejudice prong was
    established under the Lafler standard, then the court must address the proper remedy.
    1
    The trial court is not required to accept a plea agreement between the state
    and the defendant. State v. Germany, 
    246 Ga. 455
    , 456 (271 SE2d 851) (1980);
    Morrison v. State, 
    276 Ga. 829
    , 835 n.25 (583 SE2d 873) (2003). Because “[a] plea
    agreement is, in essence, a contract between a defendant and the State,” contract rules
    may apply to disputes involving plea agreements, although, “[g]iven the unique
    nature of the agreement, we avoid slavish adherence to civil contract principles.”
    Brown v. State, 
    261 Ga. App. 115
    , 116-117 (582 SE2d 13) (2003); Puckett v. U.S.,
    
    556 U.S. 129
    , 137-139 (129 SCt 1423, 173 LE2d 266) (2009). The State has the
    authority to withdraw its consent to a negotiated plea and demand a trial “when it
    learns that the trial court does not intend to follow the [State’s] sentencing
    recommendation.” State v. Kelley, 
    298 Ga. 527
    , 527 (783 SE2d 124) (2016). The
    State may at anytime withdraw an unaccepted plea offer. State v. Harper, 
    271 Ga. App. 761
    , 762 (610 SE2d 699) (2005). Moreover, a defendant has no constitutional
    right to enforcement of a plea agreement withdrawn by the State after the defendant
    accepts the plea offer but before the defendant performs under the agreement by
    pleading guilty. Mabry v. Johnson, 
    467 U.S. 504
     (104 SCt 2543, 81 LE2d 437)
    (1984), disapproved on other grounds by Puckett, 556 U.S at 138 n.1.
    9
    The remedy would not be the grant of a new trial; rather, the remedy must address the
    injury caused by violation of the Sixth Amendment right to effective assistance of
    counsel during pre-trial plea negotiations “while at the same time not grant a windfall
    to the defendant or needlessly squander the considerable resources the State properly
    invested in the criminal prosecution.” Lafler, 
    566 U.S. at 170
    . Where a defendant
    declines a plea offer as a result of ineffective assistance of counsel and then receives
    a greater sentence at trial, the typical case involves “charges that would have been
    admitted as part of the plea bargain [that] are the same as the charges the defendant
    was convicted of after trial.” 
    Id. at 171
    . In these circumstances, which were present
    in Walker’s case, the court may exercise its discretion to re-sentence Walker. “[T]he
    court may exercise discretion in determining whether the defendant should receive
    the term of imprisonment the government offered in the plea, the sentence he received
    at trial, or something in between.” 
    Id. at 171
    . Walker has the right to appeal from the
    trial court’s decision on the prejudice prong and any re-sentencing remedy.
    Judgment of conviction affirmed, sentence affirmed on condition, and case
    remanded. Ellington, P. J., and Rickman, J., concur.
    10