306 Ga. 722 FINAL COPY
S19A0927. BENTON v. HINES.
BLACKWELL, Justice.
In 2009, Bridgette Hines was convicted of armed robbery and
other crimes in connection with the robbery of a convenience store,
and she was sentenced to imprisonment for 20 years. Her convictions
were affirmed on appeal. See Hines v. State, 320 Ga. App. 854 (740
SE2d 786) (2013). Then, in 2017, Hines filed a petition for a writ of
habeas corpus, alleging that she was denied the effective assistance
of counsel on appeal. The habeas court agreed with Hines and set
aside her convictions. The Warden appeals, and we reverse.
1. The evidence presented at her trial shows that Hines,
Geoffrey Jupiter, and Ricky Timmons were involved in the robbery.
Hines and Jupiter were tried together, and Timmons testified
against them. Timmons had agreed to testify for the prosecution as
a part of a plea deal that allowed Timmons to plead guilty to simple robbery and avoid prosecution for the greater offense of armed
robbery.
At trial, Timmons testified that, late on the evening of January
1, 2009, Hines, her son (who was then 12 years of age), and Jupiter
picked him up from his house. Hines then drove the group to Lucky’s
convenience store near Jonesboro. Hines and her son went into the
store while the others waited in the car. Hines and her son then
returned to her car, and Hines drove the group to a nearby
residential area. There, Hines stopped and asked her son to remove
the car’s license plate. At some point, Hines gave Timmons a gun.
Hines then drove the group back to Lucky’s and parked on the far
side of the lot, away from the store. Timmons and Jupiter went
inside the store, both wearing masks and carrying guns. Timmons
told the clerk to “freeze” while Jupiter grabbed cash from behind the
counter. Both men then ran out, they got back into the car, and
Hines drove them away from the scene. Shortly afterwards, they
were stopped by law enforcement officers, at which point Timmons
and Jupiter jumped out of the car and ran away. Timmons was
2 caught almost immediately, but Jupiter escaped and was
apprehended later. Shortly after his arrest, Timmons gave a written
statement to investigators that was largely consistent with his trial
testimony.
To corroborate Timmons’s version of events, the State relied
primarily on the testimony of two law enforcement officers, each of
whom happened to be in the area at the time of the robbery. Each
officer testified, based on his observations, that two men ran across
Lucky’s parking lot and jumped into a car parked at the edge of the
lot, that the car then took off at a “high rate of speed” with its lights
off, and that there was no tag on the vehicle. The officers followed
and stopped the car, at which point two men jumped out and ran.
One of the officers gave chase and arrested Timmons, while the
other detained Hines (who was driving the car) and her son. A nine-
millimeter pistol was found under the driver’s seat, near where
Hines’s son was seated. The officers also found a BB gun outside the
vehicle, near the front passenger door. Cigars and cash were “all
3 over” the front passenger seat. Hines’s son had hundreds of dollars
in cash stuffed into the sleeve of his jacket.
After the prosecution rested, Hines testified in her own
defense. She explained that, earlier on the day in question, her son
saw that the license plate on her car “was hanging by one screw,”
and so he removed it and placed it next to the back window. She said
that she drove to Lucky’s with Jupiter and Timmons because the
store had a slot machine that she wanted to play for money, and
Jupiter had told her that he knew “the people” at Lucky’s who would
let her play for money. Hines further testified that, when they
arrived at Lucky’s, she and her son went inside the store, but the
clerk refused to let her play. As Hines got back in the car and began
to drive away, Timmons said he wanted to get some cigarillos, and
so she turned around in a nearby parking lot and drove back to
Lucky’s. Jupiter and Timmons got out of the car and went inside the
store. Hines testified that they were inside just long enough to make
a purchase when she saw them running from the store. She did not
see them wearing anything unusual or carrying any weapons. She
4 pulled out of the parking lot and into the street, and only then
remembered to turn on her headlights. Hines denied knowing about
the robbery before her car was stopped by the officers. Hines’s
testimony, however, was inconsistent with a statement she
previously had given to investigators. In that statement, she
indicated that Jupiter offered to pay her for “a ride,” that the license
plate was removed after the initial visit to Lucky’s, and that she saw
“the gun” before Jupiter and Timmons went inside the store.
After she was convicted and sentenced, Hines obtained new
counsel to represent her in post-conviction proceedings. Hines’s
motion for new trial was denied, and her attorney sought review in
the Court of Appeals, raising 16 claims of error, including several
claims of ineffective assistance of trial counsel. The Court of Appeals
affirmed, rejecting all these claims of error. See Hines, 320 Ga. App.
854.
On August 31, 2017, Hines filed a habeas petition in
Habersham County, initially asserting four claims of ineffective
assistance of appellate counsel. She later withdrew all of her claims
5 except one — that her appellate lawyer rendered ineffective
assistance when he failed to raise the issue of trial counsel’s
ineffectiveness as to the impeachment of Timmons. About her sole
remaining claim, Hines argued that her trial counsel failed to cross-
examine Timmons about the fact that he faced a potential life
sentence for armed robbery with no parole eligibility for 30 years,
but for his deal in which the State agreed that he could plead guilty
only to simple robbery and testify against Hines (and Jupiter).1 This
failure to impeach Timmons, Hines argued, was the basis for a claim
of ineffective assistance of trial counsel that her appellate counsel
should have raised on direct appeal. Because her appellate counsel
raised no such claim, she was denied the effective assistance of
counsel on appeal, she concluded. Following a hearing, the habeas
1 See OCGA § 16-8-41 (b) (“A person convicted of the offense of armed
robbery shall be punished by . . . imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). See also OCGA § 17-10-6.1 (c) (1) (“[F]or a first conviction of a serious violent felony [including armed robbery] in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release . . . until that person has served a minimum of 30 years in prison. . . .”). Compare OCGA § 16-8-40 (b) (“A person convicted of the offense of robbery shall be punished by imprisonment for not less than one nor more than 20 years.”).
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306 Ga. 722 FINAL COPY
S19A0927. BENTON v. HINES.
BLACKWELL, Justice.
In 2009, Bridgette Hines was convicted of armed robbery and
other crimes in connection with the robbery of a convenience store,
and she was sentenced to imprisonment for 20 years. Her convictions
were affirmed on appeal. See Hines v. State, 320 Ga. App. 854 (740
SE2d 786) (2013). Then, in 2017, Hines filed a petition for a writ of
habeas corpus, alleging that she was denied the effective assistance
of counsel on appeal. The habeas court agreed with Hines and set
aside her convictions. The Warden appeals, and we reverse.
1. The evidence presented at her trial shows that Hines,
Geoffrey Jupiter, and Ricky Timmons were involved in the robbery.
Hines and Jupiter were tried together, and Timmons testified
against them. Timmons had agreed to testify for the prosecution as
a part of a plea deal that allowed Timmons to plead guilty to simple robbery and avoid prosecution for the greater offense of armed
robbery.
At trial, Timmons testified that, late on the evening of January
1, 2009, Hines, her son (who was then 12 years of age), and Jupiter
picked him up from his house. Hines then drove the group to Lucky’s
convenience store near Jonesboro. Hines and her son went into the
store while the others waited in the car. Hines and her son then
returned to her car, and Hines drove the group to a nearby
residential area. There, Hines stopped and asked her son to remove
the car’s license plate. At some point, Hines gave Timmons a gun.
Hines then drove the group back to Lucky’s and parked on the far
side of the lot, away from the store. Timmons and Jupiter went
inside the store, both wearing masks and carrying guns. Timmons
told the clerk to “freeze” while Jupiter grabbed cash from behind the
counter. Both men then ran out, they got back into the car, and
Hines drove them away from the scene. Shortly afterwards, they
were stopped by law enforcement officers, at which point Timmons
and Jupiter jumped out of the car and ran away. Timmons was
2 caught almost immediately, but Jupiter escaped and was
apprehended later. Shortly after his arrest, Timmons gave a written
statement to investigators that was largely consistent with his trial
testimony.
To corroborate Timmons’s version of events, the State relied
primarily on the testimony of two law enforcement officers, each of
whom happened to be in the area at the time of the robbery. Each
officer testified, based on his observations, that two men ran across
Lucky’s parking lot and jumped into a car parked at the edge of the
lot, that the car then took off at a “high rate of speed” with its lights
off, and that there was no tag on the vehicle. The officers followed
and stopped the car, at which point two men jumped out and ran.
One of the officers gave chase and arrested Timmons, while the
other detained Hines (who was driving the car) and her son. A nine-
millimeter pistol was found under the driver’s seat, near where
Hines’s son was seated. The officers also found a BB gun outside the
vehicle, near the front passenger door. Cigars and cash were “all
3 over” the front passenger seat. Hines’s son had hundreds of dollars
in cash stuffed into the sleeve of his jacket.
After the prosecution rested, Hines testified in her own
defense. She explained that, earlier on the day in question, her son
saw that the license plate on her car “was hanging by one screw,”
and so he removed it and placed it next to the back window. She said
that she drove to Lucky’s with Jupiter and Timmons because the
store had a slot machine that she wanted to play for money, and
Jupiter had told her that he knew “the people” at Lucky’s who would
let her play for money. Hines further testified that, when they
arrived at Lucky’s, she and her son went inside the store, but the
clerk refused to let her play. As Hines got back in the car and began
to drive away, Timmons said he wanted to get some cigarillos, and
so she turned around in a nearby parking lot and drove back to
Lucky’s. Jupiter and Timmons got out of the car and went inside the
store. Hines testified that they were inside just long enough to make
a purchase when she saw them running from the store. She did not
see them wearing anything unusual or carrying any weapons. She
4 pulled out of the parking lot and into the street, and only then
remembered to turn on her headlights. Hines denied knowing about
the robbery before her car was stopped by the officers. Hines’s
testimony, however, was inconsistent with a statement she
previously had given to investigators. In that statement, she
indicated that Jupiter offered to pay her for “a ride,” that the license
plate was removed after the initial visit to Lucky’s, and that she saw
“the gun” before Jupiter and Timmons went inside the store.
After she was convicted and sentenced, Hines obtained new
counsel to represent her in post-conviction proceedings. Hines’s
motion for new trial was denied, and her attorney sought review in
the Court of Appeals, raising 16 claims of error, including several
claims of ineffective assistance of trial counsel. The Court of Appeals
affirmed, rejecting all these claims of error. See Hines, 320 Ga. App.
854.
On August 31, 2017, Hines filed a habeas petition in
Habersham County, initially asserting four claims of ineffective
assistance of appellate counsel. She later withdrew all of her claims
5 except one — that her appellate lawyer rendered ineffective
assistance when he failed to raise the issue of trial counsel’s
ineffectiveness as to the impeachment of Timmons. About her sole
remaining claim, Hines argued that her trial counsel failed to cross-
examine Timmons about the fact that he faced a potential life
sentence for armed robbery with no parole eligibility for 30 years,
but for his deal in which the State agreed that he could plead guilty
only to simple robbery and testify against Hines (and Jupiter).1 This
failure to impeach Timmons, Hines argued, was the basis for a claim
of ineffective assistance of trial counsel that her appellate counsel
should have raised on direct appeal. Because her appellate counsel
raised no such claim, she was denied the effective assistance of
counsel on appeal, she concluded. Following a hearing, the habeas
1 See OCGA § 16-8-41 (b) (“A person convicted of the offense of armed
robbery shall be punished by . . . imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). See also OCGA § 17-10-6.1 (c) (1) (“[F]or a first conviction of a serious violent felony [including armed robbery] in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release . . . until that person has served a minimum of 30 years in prison. . . .”). Compare OCGA § 16-8-40 (b) (“A person convicted of the offense of robbery shall be punished by imprisonment for not less than one nor more than 20 years.”). 6 court concluded that Hines was entitled to relief on this claim and
issued the writ.
2. To obtain habeas relief based on the denial of the effective
assistance of appellate counsel, a petitioner must establish that her
“appellate counsel was deficient in failing to raise an issue on appeal
and that, if counsel had raised that issue, there is a reasonable
probability that the outcome of the appeal would have been
different.” Trim v. Shepard, 300 Ga. 176, 177 (794 SE2d 114) (2016)
(citation and punctuation omitted). In analyzing an appellate
attorney’s performance, “the question is not whether [the] attorney’s
decision not to raise a particular issue was correct or wise, but
rather, whether his decision was an unreasonable one which only an
incompetent attorney would adopt.” Id. (Citation and punctuation
omitted.) A lawyer’s failure to raise a claim on appeal might be
unreasonable if that claim had “clear and strong merit under the
law as it existed at the time of the appeal,” Martin v. McLaughlin,
298 Ga. 44, 45 (779 SE2d 294) (2015), but if the claim had “doubtful
merit . . . it generally cannot be said that every competent lawyer
7 would have asserted it, and so, the failure to assert the claim
ordinarily would not amount to deficient performance,” Trim, 300
Ga. at 178. See also Hooks v. Walley, 299 Ga. 589, 591 (791 SE2d
88) (2016) (appellate counsel “does not have a duty to advance every
nonfrivolous argument that could be made” (citation and
punctuation omitted)).
Hines has failed to show ineffective assistance of appellate
counsel. As mentioned above, the underlying claim in this case (the
claim that Hines believes her appellate lawyer should have raised)
is that trial counsel rendered ineffective assistance in failing to
cross-examine Timmons about the maximum time he would be
facing if he had not made a plea deal and instead was convicted of
armed robbery. The merit of this claim, however, is doubtful at best.
Even if Hines could have shown that her trial counsel acted
deficiently in failing to impeach Timmons on this particular issue,
she likely would not have been able to show prejudice.2
2 The standard for showing trial counsel’s ineffectiveness is essentially
the same as for appellate counsel — the defendant generally must prove that
8 The trial transcript shows that Timmons was cross-examined
extensively about his plea deal by Hines’s and Jupiter’s attorneys.
The jury learned from this cross-examination that, by making a plea
deal, Timmons was avoiding a ten-year mandatory minimum
sentence “with no chance of parole.”3 The jury also learned that,
regardless of the sentence Timmons now would receive as a result of
his guilty plea, he would be eligible for parole immediately.4 So the
jury knew that Timmons received a significant benefit in exchange
for pleading guilty and testifying for the State. We cannot say that
the marginal value of additional impeachment based on Timmons’s
trial counsel’s performance was deficient and that this deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Eagle v. Linahan, 279 F3d 926, 938 (III) (11th Cir. 2001) (“The same standard applies whether we are examining the performance of counsel at the trial or appellate level.”). To show prejudice, a defendant must “demonstrate the reasonable probability that, absent the claimed professional errors by counsel, the result of his trial would have been different.” Roberts v. State, 296 Ga. 719, 724 (2) (770 SE2d 589) (2015).
3 See OCGA § 17-10-6.1 (b) (1), (c) (4) (a person convicted of armed robbery “shall be sentenced to a mandatory minimum term of imprisonment of ten years,” and this sentence “shall not be reduced by any form of parole or early release”).
4 We express no opinion as to the accuracy of Timmons’s (or the defense
attorneys’) representations to the jury about his potential sentence.
9 potential maximum sentence (which the jury had no reason to
believe he would actually receive) would have made a difference in
the jury’s assessment of his credibility, especially since his
testimony was corroborated by other evidence, including the
testimony of two police officers and Hines’s own incriminating
statement. See McCoy v. State, 303 Ga. 141, 143 (2) (810 SE2d 487)
(2018) (trial counsel’s failure to impeach witness with particular
information did not result in prejudice where such information had
“only marginal impeachment value” and the evidence of guilt was
strong). See also Sims v. State, 280 Ga. 606, 608 (3) (631 SE2d 656)
(2006).
Given the foregoing, Hines’s appellate lawyer reasonably could
believe that raising a claim of trial counsel’s ineffectiveness on the
issue of Timmons’s impeachment would not have succeeded on
appeal, and so Hines has not shown that her appellate lawyer was
deficient in failing to raise this claim. See Hooks, 299 Ga. at 594
(habeas petitioner failed to show that appellate counsel performed
deficiently in failing to raise a claim of trial counsel’s ineffectiveness,
10 even if that underlying claim was potentially meritorious). See also
Arrington v. Collins, 290 Ga. 603, 606 (1) (724 SE2d 372) (2012).
Accordingly, the habeas court erred when it granted the writ of
habeas corpus to Hines.
Judgment reversed. All the Justices concur.
11 DECIDED SEPTEMBER 3, 2019. Habeas corpus. Habersham Superior Court. Before Judge Caudell. Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, for appellant. Zell & Zell, Rodney S. Zell, for appellee.