Victor Graham v. State ( 2023 )

FIFTH DIVISION
MCFADDEN, P. J.,
BROWN and MARKLE, 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.
https://www.gaappeals.us/rules
December 14, 2023
In the Court of Appeals of Georgia
A23A1377. GRAHAM v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Victor Graham was convicted of incest and statutory rape. His sole
argument on appeal is that he received ineffective assistance of trial counsel. Because Graham
has not shown that he was prejudiced by any deficient performance, we affirm.
1. Facts
Because Graham’s sole argument is ineffective assistance of trial counsel, we limit our
recitation of facts to the evidence at trial presented that is relevant to that argument. See Hardy
v State, __ Ga. __, __ (1) (__ SE2d __) (2023) (Case No. S23A0443, decided Oct. 24,
2023) (involving only claims for ineffective assistance). During the summer of 2007, Graham’s
14-year-old biological daughter, S. G., lived with him. That fall, S. G. learned she was pregnant
and on March 4, 2008, S. G. gave birth to a child. A DNA test indicated that Graham was the
father of S. G.’s child.
2. Procedural history and post-conviction delay
The state charged Graham with the offenses of rape, statutory rape, and incest. The trial
court granted Graham a directed verdict as to rape, and the jury found Graham guilty of the
other two offenses.
Graham moved for a new trial in June 2009. Twelve years later, after obtaining new
post-conviction counsel, Graham amended that motion in June 2021 to add claims of
ineffective assistance of trial counsel. The trial court denied Graham’s amended motion for
new trial and, because the trial court failed to notify the parties of that ruling, the trial court
granted Graham’s motion for an out-of-time appeal.
But while that appeal was pending, our Supreme Court “determined that trial courts
lack jurisdiction to grant motions for an out-of-time appeal.” Graham v. State, 366 Ga. App.
626 (884 SE2d 32) (2023). So we vacated the order granting the out-of-time appeal and
remanded the case to the trial court. Id. at 628. We noted that Graham was “not foreclosed
from filing ‘a motion to set aside’ the order denying his motion for new trial, after which,
should the trial court grant the motion and re-enter the judgment, ‘the 30-day period would
begin to run again.’” Id. at 628 n. 1 (quoting Moore v. State, 308 Ga. 556, 557 (2) (842
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SE2d 65) (2020)). On remand, the trial court set aside and re-entered the ruling denying
Graham’s motion for new trial, and this timely appeal followed.
Consequently, there has been a 14-year delay between Graham’s 2009 conviction and
the 2023 motion-for-new-trial ruling that is the subject of this appeal. As our Supreme Court
has done,
we remind the bench and bar that long post-conviction delays put at risk the
rights of defendants and crime victims and the validity of convictions obtained
after a full trial, and we reiterate that it is the duty of all those involved in the
criminal justice system to ensure that the appropriate post-convictions motions
are filed, litigated, and decided without unnecessary delay.
Kinlaw v. State, __ Ga. __, __ n. 1 (__ SE2d __) (Case No. S23A0547, decided Oct. 11,
2023) (citation and punctuation omitted).
3. Ineffective assistance of counsel
On appeal, Graham argues that his trial counsel provided ineffective assistance. To
prevail on this claim, Graham “must show that counsel’s performance was deficient and that
the deficient performance resulted in prejudice to [him].” Hardy, __ Ga. at __ (2) (citation
and punctuation omitted).
If an appellant fails to meet his or her burden of proving either prong of [this]
test, the reviewing court does not have to examine the other prong. In reviewing
the trial court’s decision, we accept the trial court’s factual findings and
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credibility determinations unless clearly erroneous, but we independently apply
the legal principles to the facts.
Pritchett v. State, 314 Ga. 767, 780-781 (3) (879 SE2d 436) (2022) (citations and
punctuation omitted).
In his order, the trial court denied Graham’s motion for new trial on the ground that
Graham had not shown prejudice, although the trial court also made findings regarding
deficiency “for purposes of the record. . . .” As detailed below, we agree with the trial court
that Graham has not met his burden of proving prejudice. So we do not address whether or
not trial counsel performed deficiently in any respect.
“To satisfy the prejudice prong, a defendant must establish a reasonable probability
that, in the absence of counsel’s [alleged] deficient performance, the result of the trial would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. This burden is a heavy one.” Hardy, __ Ga. at __ (2) (citations
and punctuation omitted).
(a) Graham has not shown prejudice as to any of the alleged instances of deficient
performance by trial counsel
Graham alleges that his trial counsel was deficient because she failed to meet with him
enough times in person. Trial counsel testified, and the trial court found, that although trial
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counsel and Graham met in person only three times, trial counsel communicated with Graham
through correspondence and family members. “There exists no magic amount of time which
counsel must spend in actual conference with [her] client[.]” Morrison v. State, 303 Ga. 120,
125 (5) (a) (810 SE2d 508) (2018) (citation and punctuation omitted). Given the strong
evidence that Graham committed the offenses of incest and statutory rape — namely DNA
evidence that Graham was the father of the child born to Graham’s daughter when the girl was
under the age of 16 — Graham has not met his burden of showing that, had his trial counsel
met with him in person more often, there was a reasonable probability that the outcome of his
trial would have been different. See Warren v. State, 314 Ga. 598, 603 (2) (a) (878 SE2d
438) (2022) (finding no reasonable probability that trial counsel’s deficiency affected the
outcome of the trial where the evidence of the defendant’s guilt, which included DNA
evidence, was strong). See also OCGA § 16-6-3 (a) (“A person commits the offense of
statutory rape when he or she engages in sexual intercourse with any person under the age of
16 years and not his or her spouse[.]”); OCGA § 16-6-22 (a) (“A person commits the offense
of incest when such person engages in sexual intercourse . . . with a person whom he or she
knows he or she is related to either by blood or marriage as follows: (1) Father and child. . .
.”).
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Graham alleges that his trial counsel was deficient in failing to seek a continuance in
order to secure the testimony of two defense witnesses, who he asserts would have testified that
they lived with Graham during the time when he allegedly impregnated S. G. and observed no
sexual activity between them. (Only one of the two witnesses testified at the hearing on the
motion for new trial; the other was unavailable for medical reasons. ) Again, given the strong
evidence of Graham’s guilt, he has not met his burden of showing that, had these witnesses
testified to that effect, there was a reasonable probability that the outcome of the trial would
have been different.
Graham alleges that his trial counsel was deficient in failing to discuss a plea deal with
him or negotiate that deal with the state. Trial counsel testified, and the trial court found, that
she communicated a plea offer to Graham in writing. She testified that she explained to
Graham the risks of going to trial but did not pursue the issue further because Graham was
adamant that he did not want to plead guilty. Graham did not testify at the motion-for-new-
trial hearing or present other evidence that he would have accepted a plea deal. He has not met
his burden of “showing that, but for trial counsel’s alleged failures in this regard, he would
have accepted the [s]tate’s plea offer and that the trial court would have accepted its terms or,
alternatively, that the [s]tate and trial court would have accepted the terms of [a] counteroffer.”
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Calhoun v. State, 308 Ga. 146, 154 (2) (d) (839 SE2d 612) (2020) (punctuation and
footnote omitted).
Finally, Graham alleges that his trial counsel was deficient in failing to file a special
demurrer requiring the state to more precisely specify the dates on which the crimes allegedly
occurred. See State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005) (“Generally,
an indictment which fails to allege a specific date on which the crime was committed is not
perfect in form and is subject to a timely special demurrer. However, where the [s]tate can
show that the evidence does not permit it to allege a specific date on which the offense
occurred, the [s]tate is permitted to allege that the crime occurred between two particular
dates.”) (citations and punctuation omitted). The indictment alleged that Graham had
committed the charged offenses by having sexual intercourse with S. G. between May 1, 2007
and August 17, 2007, stating that the exact date of these offenses was “unknown to the Grand
Jury but known by [Graham].” Graham argues, without citation to authority, that he was
prejudiced by trial counsel’s failure to file a special demurrer because “a special demurrer could
have potentially led the trial court to require the [s]tate to re-indict [him] with a more narrow
date range, which then would have created more opportunity for [his] trial counsel to explore
or pursue an alibi defense.” Given the strong evidence of Graham’s guilt, he has not shown a
reasonable probability that this would have led to a different trial outcome.
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(b) Graham has not shown cumulative prejudice
Graham argues that his convictions should be reversed because he was prejudiced by the
cumulative effect of his trial counsel’s allegedly deficient performance. See State v. Lane, 308
Ga. 10, 17 (1) (838 SE2d 808) (2020). We find that “the cumulative prejudice from any
assumed deficiencies discussed [above] is insufficient to show a reasonable probability that the
results of the proceedings would have been different in the absence of the alleged deficiencies.
Accordingly, [Graham] is not entitled to relief under this theory.” Calhoun, 308 Ga. at 154
(2) (e) (citation omitted).
(c) We decline to extend the law to find “per se deficient performance”
Graham argues that the circumstances of this case “warrant[ ] a change in existing law
to protect criminal defendants from insufficient time or effort by their attorneys.” He asks us
to extend the law to find that his trial counsel’s performance was “per se deficient.” As stated
above, our Supreme Court has chosen not to specify an amount of time that trial counsel must
spend meeting with a defendant for trial counsel to have sufficiently prepared for trial. See
Morrison, 303 Ga. at 125 (5) (a). Graham’s proposed “per se” rule would have us alter or
ignore this binding precedent of our Supreme Court, which we cannot do. See Oliver v. State,
270 Ga. App. 429, 431 (3) (606 SE2d 874) (2004).
Judgment affirmed. Brown and Markle, JJ., concur.
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