SECOND DIVISION MERCIER, C. J., MILLER, P.J., and HODGES, J.
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
January 5, 2024
In the Court of Appeals of Georgia A23A1780. PONDERS v. THE STATE.
HODGES, Judge.
A jury found Anthony Ponders (“Ponders”) guilty of child molestation.
Ponders appeals from the denial of his motion for new trial, asserting that he received
ineffective assistance of trial counsel in several respects. For the reasons that follow,
we affirm.
The evidence shows that A. M. lived with her grandparents, Rhonda and
Anthony Ponders, and a number of other relatives. On February 12, 2021, Ponders
woke up A. M. to clean up her dog’s feces and urine. A. M., who was 14 years old at
the time of the second trial,1 testified that Ponders “expos[ed] his self” while he was
1 Ponders’ first trial ended with a mistrial. in her room. According to A. M., Ponders spent five to ten minutes in her room with
his “penis . . . out” of his shorts about six feet away from her, and she believed
Ponders wanted her to see his penis. He walked from one side of the bed to the other
in a way that made her look at it, even though she did not want to see it. He also left
three dollars on her table, but did not say why. Earlier in the day, Ponders had taken
A. M. to a store and bought her ice cream and a vape.
Haley Ponders, Ponders’ daughter and A. M.’s aunt, walked by A. M.’s room
and saw Ponders inside with A. M. Haley testified that Ponders’ pants were down and
she saw his buttocks exposed. She was concerned about what was happening in the
room because Ponders was panicky when he saw her. In fact, A. M. testified that
Ponders “ran out [of] the room” when Haley walked by. Haley entered A. M.’s room
and talked to her about what she had witnessed. Haley also testified that she saw
money thrown on A. M.’s night stand. After Haley spoke with A. M., she told A. M.’s
grandmother to call the police, which she did after hearing what happened from both
A. M. and Haley. A. M. testified that she would not have said anything because she
was scared. The three women stayed locked in A. M.’s grandmother’s room until the
2 police came. When the police arrived, A. M. told them what had happened. She was
embarrassed and did not want to talk to them.
On cross-examination, A. M. testified that she told her grandmother shortly
after the incident that what happened could have been an accident. On redirect,
however, A. M. testified that she told the officer that she wanted the incident to be an
accident because it would be easier for her and her family, but it was not an accident.
A. M. testified unequivocally at trial that the incident was not an accident.
A. M.’s grandmother also testified at trial. According to her, Haley woke her
up, frantic, and told her what had happened. Haley said “that she [saw] her daddy
coming out of [A. M.’s] bedroom with his pants pulled down” and told her to call the
police. Haley then brought A. M. to the grandmother’s bedroom. A. M. was scared
and told her that Ponders came into her room and “showed himself to her[,] . . . going
from one side of her bed to the other to make sure that she [saw] it.” A. M. said she
tried to look away and not see it. The grandmother told police that Ponders had
exposed himself to A. M. and was possibly on drugs. She later saw three dollars in A.
M.’s room. The grandmother also testified about a phone conversation between
Ponders and his brother where, according to her, Ponders admitted he exposed
3 himself to A. M. but claimed he should have been charged simply with indecent
exposure. The recording was admitted into evidence and played for the jury.
An officer who responded to the scene wore a bodycam while he spoke with
individuals at the scene, and the bodycam footage was played during the
grandmother’s testimony at trial. The officer also testified that Ponders exhibited
manifestations of drug use, but noted that Ponders did not have any drugs on his
person and was not tested for drugs on the night of the incident.
A similar transaction witness also testified at trial regarding Ponders’ sexual
abuse of her as a child.
Ponders testified that his shorts accidentally “slid down” and he covered
himself up and started walking out of the door. According to Ponders, he gave A. M.
three dollars to buy Takis snack chips the next day because she had brought in some
kindling for the fireplace.
A jury found Ponders guilty of child molestation, and the trial court sentenced
him to 20 years, with the first 19 years to be served in prison and the remainder on
probation. Ponders filed a motion for new trial on the general grounds. Subsequently,
his new appellate counsel filed both a motion for new trial on the general grounds and
4 an amended motion for new trial claiming ineffective assistance of trial counsel. The
trial court denied Ponders’ motion as amended, and this appeal followed.
Ponders argues on appeal that he received ineffective assistance of counsel
because his trial counsel: (1) failed to object to alleged hearsay on numerous occasions;
(2) failed to properly utilize Department of Family and Children Services (“DFCS”)
records; and (3) failed to assist Ponders at the sentencing hearing. The trial court
concluded that Ponders’ trial counsel did not render ineffective assistance. We find
no reversible error.
To establish ineffective assistance of counsel, one must prove both deficient
performance by counsel and resulting prejudice. Strickland v. Washington, 466 U. S.
668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Brown v. State, 302 Ga. 454, 457
(2) (807 SE2d 369) (2017). “To show that his lawyer’s performance was deficient, [a
defendant] must demonstrate that the lawyer performed his duties in an objectively
unreasonable way, considering all the circumstances and in the light of prevailing
professional norms.” (Citation omitted.) Brown, 302 Ga. at 457 (2). Counsel’s
performance is deficient only if it falls below the wide range of competence demanded
of attorneys in criminal cases. Strickland, 466 U. S. at 687-689 (III) (A). “This burden,
5 although not impossible to carry, is a heavy one, because when reviewing ineffective
assistance of counsel claims, this Court applies a strong presumption that counsel’s
performance falls within the wide range of reasonable professional assistance.”
(Citations and punctuation omitted.) Prescott v. State, 357 Ga. App. 375, 385 (3) (850
SE2d 812) (2020); see also Jones v. State, 318 Ga. App. 342, 346 (3) (733 SE2d 400)
(2012) (concluding that a defendant must show by clear and convincing evidence that
the performance of his lawyer was not within the range of reasonable professional
lawyering). A defendant
bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
(Citation and punctuation omitted.) Brown, 302 Ga. at 457 (2). A finding of deficient
performance requires a showing of errors so serious that counsel was not functioning
as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U. S. at 687
(III); accord State v. Worsley, 293 Ga. 315, 323 (3) (745 SE2d 617) (2013).
6 Prejudice is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U. S. at 694 (III) (B);
Seabolt v. Norris, 298 Ga. 583, 584-585 (783 SE2d 913) (2016).
Even when a defendant has proved that his counsel’s performance was deficient in this constitutional sense, he also must prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, [a defendant] must demonstrate a ‘reasonable probability’ of a different result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome.
(Citations and punctuation omitted.) Brown, 302 Ga. at 457 (2).
An ineffective-assistance claim is a mixed question of law and fact, and we
accept the trial court’s factual findings unless clearly erroneous but independently
apply the law to those facts. Hulett v. State, 296 Ga. 49, 60 (5) (766 SE2d 1) (2014);
see also Strickland, 466 U. S. at 698 (IV). Importantly, “[t]he standard regarding
ineffective assistance of counsel is not errorless counsel and not counsel judged
ineffective by hindsight, but counsel rendering reasonably effective assistance.”
7 (Citation omitted.) Davis v. State, 290 Ga. 584, 587 (2) (b) (723 SE2d 431) (2012).
The defendant bears the burden of proof on both prongs of an ineffective-assistance
claim — if he fails to establish either prong, a reviewing court need not examine the
other. See Robinson v. State, 298 Ga. 455, 462-463 (6) (782 SE2d 657) (2016). In short,
the burden of proving a denial of effective assistance of counsel is a heavy one, and
after reviewing Ponders’ claims in accordance with these standards, we conclude that
Ponders has not met his burden of demonstrating that his trial counsel was ineffective.
1. Ponders first claims that trial counsel was ineffective by failing to object to
alleged hearsay on numerous occasions. He acknowledges, however, that the failure
to object to hearsay is not reversible if it stemmed from a strategic decision. See
Martin v. State, 360 Ga. App. 1, 7 (1) (b) (860 SE2d 582) (2021).
Generally, counsel’s decision to forgo objecting to hearsay testimony can be reasonable trial strategy. We evaluate the reasonableness of counsel’s strategic decision in conjunction with the attendant circumstances of the challenged conduct with every effort made to eliminate the distorting effects of hindsight. Thus, deficiency cannot be demonstrated by merely arguing that there is another, or even a better, way for counsel to have performed.
(Citations and punctuation omitted.) Id.
8 At the motion for new trial hearing in this case, Ponders’ trial counsel explained
that he did not object to the statements complained of because: (i) they probably
would have been admitted as a result of the child hearsay exception; and (ii) the
individuals who testified also testified at Ponders’ first trial, and trial counsel was
going to address any alleged hearsay through cross-examination. According to trial
counsel, based on his experience,
you can, in fact, alienate a jury by too many objections. It almost appears that you’re trying to hide something at times, so I let evidence come in sometimes because I understand that we’re going to be able to rebut it in some other fashion in the future and so forth without alienate -- in my mind, alienating a jury or creating some sort of concern.
This was especially true in Ponders’ case where, because this was his second trial,
counsel had a preview of what the evidence was going to be.
Pretermitting whether the complained-of statements actually constituted
objectionable hearsay,2 we conclude that trial counsel’s decision not to object, but to
2 The State asserts that the subject statements did not constitute hearsay, were non-responsive to questions, were admissible as exceptions to the hearsay rule — specifically, excited utterances, past inconsistent statements, child hearsay, and present sense impression — or were merely cumulative of other admissible evidence.
9 address the alleged hearsay through cross-examination, was a reasonable trial strategy
in this case. See Richards v. State, 306 Ga. 779, 781-782 (2) (a) (833 SE2d 96) (2019)
(finding that trial counsel’s strategic decision to not object to hearsay and rebut such
statements via cross-examination or exposing inconsistencies in other witnesses’
testimony is a reasonable trial strategy). Trial counsel’s strategy was calculated and
deliberate, he cross-examined and occasionally re-cross-examined witnesses, and his
strategic move was neither patently unreasonable nor outside the wide range of
reasonable professional assistance. See Hughs v. State, 312 Ga. 606, 612 (2) (864 SE2d
59) (2021) (“[A] tactical decision will not form the basis for an ineffective assistance
of counsel claim unless it was so patently unreasonable that no competent attorney
would have chosen it.”) (citation and punctuation omitted).
Moreover, Ponders only asked trial counsel two generic questions regarding the
alleged hearsay statements at the motion for new trial hearing; he did not separately
question trial counsel regarding each instance he asserts in his appellate brief. As our
Supreme Court has explained, “when trial counsel does not testify at the motion for
new trial hearing about the subject, it is extremely difficult to overcome the
presumption that his conduct was reasonable.” (Citation and punctuation omitted.)
10 Shaw v. State, 292 Ga. 871, 876 (3) (b) (742 SE2d 707) (2013); see also id. at 874 (3)
(a), n. 5 (holding that to carry his burden, the defendant must show deficiencies by
competent evidence, for a silent or ambiguous record is not sufficient to overcome the
presumption). Accordingly, we agree with the trial court that Ponders did not
demonstrate that trial counsel performed deficiently in this regard.
2. Ponders next asserts that his trial counsel was ineffective by failing to
properly utilize DFCS records to: (i) counter the State’s theory that he was high the
day in question; (ii) show that he gave A. M. dollar bills on a regular basis for non-
sexual reasons; and (iii) show that A. M. liked Takis snack chips to support Ponders’
claim that he gave her money for that purpose. We disagree.
At the outset, we note that Ponders’ counsel at the motion for new trial hearing
mentioned that the DFCS record log contained approximately 200 pages, but Ponders
only introduced a few of those pages into evidence at the hearing, and trial counsel was
not confronted with any of the pages or questioned about any evidence that was
included within the pages. Moreover, trial counsel testified at the motion for new trial
hearing that he reviewed the DFCS records and strategically chose not to use them at
trial.
11 Turning first to Ponders’ alleged drug usage on the day in question, Ponders
argues that trial counsel should have introduced what appears to be a 2009 DFCS
record log indicating that Ponders had been sent for a drug screen (though no result
was indicated), and a February 16, 2009 DFCS record log stating that Ponders brought
in a drug treatment completion certificate. First of all, the crime in this case occurred
12 years after the proffered evidence regarding Ponders’ drug screen and treatment
as noted in the DFCS record log, and Ponders does not indicate how these general
record logs are relevant to the February 12, 2021 incident. Based on the length of time,
alone, we cannot find that the DFCS record logs would counter the State’s theory that
Ponders was under the influence of drugs on the night of the incident. See Harris v.
State, 359 Ga. App. 356, 362 (2) (b) (857 SE2d 815) (2021) (finding no reasonable
probability that a three-year-old prescription for the same controlled substances found
in the defendant’s car would have changed the outcome of her trial for possession of
a controlled substance). Instead, trial counsel challenged the State’s theory through
cross-examination.
Second, the mere failure to utilize certain evidence is insufficient to constitute
ineffective assistance; the failure must be one indicating that the attorney performed
12 in an objectively unreasonable way. Brown, 302 Ga. at 457 (2). Here, trial counsel
testified that he did not have evidence that Ponders was not high on the night of the
incident, and trial counsel did not want to “get into . . . allegations . . . that might
enhance the allegations of the meth usage[,]” especially since Ponders had a
possession case involving methamphetamine pending against him at the same time as
the molestation trial. This strategic decision not to utilize the DFCS records —
showing Ponders’ drug treatment 12 years before the crime at issue — because they
could have highlighted Ponders’ drug usage was a reasonable tactical decision. “[W]e
cannot conclude that trial counsel provided ineffective assistance of counsel in failing
to use the [evidence] at trial.” Sellers v. State, 277 Ga. 172, 174 (4) (587 SE2d 35)
(2003); see also Brown v. State, 226 Ga. App. 238, 239-240 (1) (486 SE2d 385) (1997)
(concluding that counsel was not ineffective for failing to utilize records that had
neither exculpatory nor impeachment value).
As for Ponders’ other claims, he argues that trial counsel should have
introduced an undated DFCS record log indicating that A. M. told a representative
that “Pawpaw gives a dollar everyday” and that she and her brother “fight over TV
time and Tahkies [sic] (chips) a lot[.]” According to Ponders, this evidence would
13 have supported the defense theory that Ponders gave A. M. money for Takis snack
chips and not some sexual reason. We again find no merit in this assertion. First,
Ponders has not shown that he was the individual giving A. M. “a dollar everyday.”
The DFCS record log does not contain a specific date, but the heading of the page
introduced into evidence indicates the case name “Mcbee, Dorothy,” and the page
begins with “PGP[]s stated that they have taken care of their grandchildren for 11
years but MGP[]s help out too.” It is undisputed that A. M. and her brother lived with
the McBees, their paternal grandparents, until a few years prior to the trial in March
2022. It is further undisputed that A. M. referred to Ponders as “Pappy,” not
“Pawpaw.” Accordingly, the evidence would not, as argued by Ponders, support the
defense theory that Ponders gave A. M. a dollar every day for non-sexual reasons,
much less the three dollars he left on her table on the night of the incident. Second,
whether A. M. likes Takis was not in dispute during the trial; the issue was whether
Ponders gave A. M. money immediately after the child saw his penis as a form of
grooming.
Trial counsel’s strategic decision not to use the DFCS record log at trial was
neither patently unreasonable nor outside the wide range of reasonable professional
14 assistance. See Hughs, 312 Ga. at 612 (2). Accordingly, we agree with the trial court
that trial counsel did not perform deficiently by failing to introduce the pages of the
DFCS record log suggested by Ponders.
3. Finally, Ponders argues that trial counsel was ineffective by abandoning him
at the sentencing hearing. Specifically, Ponders claims that trial counsel “presented
no evidence in mitigation, asked no questions of the state’s witness, made no legal
argument, made no objections, and requested no leniency.” Ponders also asserts that
trial counsel “failed to prevent [him] from making inflammatory statements that
essentially blamed the victim and denied any responsibility on the part of Mr.
Ponders.” Indeed, the record shows that although trial counsel was physically present
at Ponders’ sentencing hearing, he did not, according to the trial court, “make any
attempt to further advance [Ponders’] case.” In fact, trial counsel admitted at the
motion for new trial hearing that he “did not participate at all in the sentencing
portion.” Ponders maintains that trial counsel’s inaction resulted in his receipt of the
maximum sentence permitted under law. See OCGA § 16-6-4 (b) (1) (“[A] person
convicted of a first offense of child molestation shall be punished by imprisonment for
not less than five nor more than 20 years and shall be subject to the sentencing and
15 punishment provisions of Code Sections 17-10-6.2 and 17-10-7.”). Although we do not
condone trial counsel’s inaction, we find that his inaction did not prejudice Ponders.
At the sentencing hearing, trial counsel informed the court that Ponders had
alleged numerous claims of ineffectiveness against him. In fact, it is apparent from the
sentencing transcript that Ponders had lost all faith in his trial counsel. When the trial
court asked Ponders if he wished for trial counsel to represent him with sentencing on
two unrelated cases being heard at the same time as the case before us, Ponders
declined, stating, “I don’t want him to be my attorney on [those cases].” The trial
court then continued those unrelated cases, and the State proceeded on sentencing in
the case before us.
The State first introduced evidence showing that Ponders was a habitual felon
and requested the maximum sentence for child molestation. When the State
concluded, Ponders’ trial counsel stated, “Your Honor, given the fact that I have been
accused of ineffective assistance, I don’t know that I can render any type of decision
with respect to admissibility or an objection at this time.” The State then called A.
M.’s grandmother, who explained how the crime had affected her family. When she
finished testifying, Ponders’ trial counsel stated, “Your Honor, again, I don’t know
16 that I can ask any questions given the circumstances.” Trial counsel did not offer any
mitigation evidence on behalf of Ponders. When asked if he wished to make a
statement in regard to sentencing after the State had concluded its presentation of
evidence, Ponders stated “yes” and then addressed the court. Specifically, Ponders
argued that everything that happened to the family was because a dog urinated on the
floor and his shorts fell down; it was not his fault.3 The trial court then sentenced
Ponders to 20 years, with the first 19 years to be served in prison and the balance to
be served on probation.
Trial counsel explained at the motion for new trial hearing that although he was
still the attorney of record in the case and had not filed a formal withdrawal, Ponders
had filed a written complaint alleging about seven or eight different issues as to [trial counsel’s] ineffectiveness and so forth. It was very clear that he was not happy with [trial counsel’s] representation and [trial counsel] felt, based upon the written complaint he had filed, that I really
3 Ponders stated, “This has affected our family. I wasn’t the one that caused everybody to move. That wasn’t me. They couldn’t — they didn’t pay the bills. [A. M.’s grandmother] asked them to leave, not me. A dog peed in the floor, my shorts fell down. I didn’t do this. It was not to fill my sexual gratification. It was on account of a dog peed in the floor and that’s what happened. And, Your Honor, I did not do this.” 17 could not go forward and continue to represent him with that — that complaint pending.
According to trial counsel, Ponders was “very adamant” that he did not want trial
counsel and wasn’t satisfied with trial counsel’s representation. That said, trial
counsel testified that he spoke with Ponders numerous times prior to the sentencing
hearing, specifically telling him that he could call witnesses and speak to the judge at
sentencing. And the parties stipulated at the motion for new trial hearing that Ponders
“would not have testified at sentencing if his counsel had instructed him not to.”
Pretermitting whether trial counsel’s lack of participation at Ponders’
sentencing was proper given counsel’s failure to withdraw or seek to demonstrate that
a conflict existed, his inaction does not warrant a new trial. As pointed out by the trial
court, the jury had already deliberated and returned a verdict. The question before us,
then, is whether such inaction warrants a new sentencing hearing. See Black v. State,
264 Ga. 550, 552 (1) (448 SE2d 357) (1994) (concluding that “any errors committed
during the sentencing phase do not justify a new guilt-innocence trial”); see also Hall
v. McPherson, 284 Ga. 219, 226 (3), 235 (5) (663 SE2d 659) (2008) (holding that
deficient performance in the sentencing phase only entitled the defendant to vacation
18 of his sentence); Schofield v. Gulley, 279 Ga. 413, 416 (I) (B) (614 SE2d 740) (2005)
(finding that ineffectiveness in the sentencing phase required only a new sentencing
trial). We find that it does not.
First, although Ponders makes some conclusory assertions that trial counsel’s
inaction resulted in the imposition of the maximum sentence, he presented no
evidence or proffer at the motion for new trial hearing showing what mitigating
evidence could have been presented or what actions or objections should have been
taken by trial counsel, “much less that such additional evidence [or actions] in
reasonable probability would have persuaded a rational trier of fact to reach a different
sentencing verdict.” Hulett, 296 Ga. at 69 (5) (c) (i); accord Harris v. State, 345 Ga.
App. 80, 82 (1) (d) (812 SE2d 342) (2018). “Because [Ponders] has not satisfied his
burden of demonstrating that he was prejudiced by counsel’s performance at
sentencing, this claim of ineffective assistance must fail.” Davis v. State, 286 Ga. 74,
78 (4) (686 SE2d 249) (2009) (concluding that the defendant did not demonstrate that
he was prejudiced by trial counsel’s performance at sentencing when he failed to
“suggest what evidence might have served to mitigate his sentence; he offered no
19 witnesses and proffered no affidavits on this issue at the hearing on the motion for new
trial”).
Apparently recognizing his failure to demonstrate what evidence trial counsel
could have presented in mitigation,4 what questions he could have asked of the State’s
witness, what legal arguments or objections he could have made, or what statements
could have been offered as a plea for leniency at the sentencing hearing to minimize
his sentence, Ponders’ appellate brief focuses on trial counsel’s failure to counsel him
not to make a statement to the court. Ponders correctly notes that the trial court’s
order failed to recognize the parties’ stipulation that he would have followed his
counsel’s advice not to make a statement. Notwithstanding this fact, we conclude that
the trial court correctly denied Ponders’ ineffective assistance claim in this regard
because Ponders cannot show that he was prejudiced by trial counsel’s failure to
prevent him from making an inflammatory statement to the court.
Ponders’ statement at sentencing did not differ from his testimony at trial.
Ponders consistently stated during the trial that he stepped in dog urine and that his
4 In fact, trial counsel testified that none of the potential mitigation witnesses suggested by Ponders returned his phone calls. 20 shorts fell down accidentally. He also denied taking any action for sexual gratification,
but blamed the dog urine on the floor. Ponders’ statements denying responsibility at
the sentencing hearing were simply reiterations and cumulative of his testimony at
trial. Because the same judge who decided Ponders’ sentence also presided over his
trial and had heard the evidence presented, and because this judge, “knowing whether
[Ponders’] statement would have affected the choice of sentence, found that counsel
was not ineffective[, w]e cannot say that this finding was ‘clearly erroneous.’”
(Citation omitted.) Baines v. State, 201 Ga. App. 354, 355 (1) (a) (411 SE2d 95) (1991);
see generally Hampton v. State, 282 Ga. 490, 493 (2) (b) (651 SE2d 698) (2007)
(stating that a “trial court’s finding is entitled to particular deference given that the
trial judge who conducted the evidentiary hearing on the amended new trial motion
was the same judge who presided over [the defendant’s] trial”). The trial court did
not err in denying Ponders’ motion for new trial on this ground.
Judgment affirmed. Mercier, C. J., and Miller, P. J., concur.