308 Ga. 423 FINAL COPY
S20A0153. DRESBACH v. THE STATE.
PETERSON, Justice.
Irwin Clint Dresbach appeals his convictions for felony murder
and other crimes in connection with the shooting death of Jennifer
Gatewood.1 Dresbach argues that his trial counsel was ineffective
1 Gatewood was killed on April 5, 2014. In July 2014, a Fulton County
grand jury indicted Dresbach for malice murder, two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of methamphetamine, possession of a firearm during the commission of a felony, and three counts of possession of a firearm by a convicted felon. The State nolle prossed one count of possession of a firearm by a convicted felon, and a jury found Dresbach guilty on the remaining counts following a December 2015 trial. The trial court sentenced Dresbach to life without parole on one felony murder count, an eight-year consecutive term to serve for possession of methamphetamine, a five-year consecutive probated term for possession of a firearm during the commission of a felony, and a five-year consecutive probated term on one count of possession of a firearm by a convicted felon. The trial court purported to merge the remaining counts. The State argues that the trial court made sentencing errors in Dresbach’s favor, but it failed to file a cross-appeal and has failed to identify on appeal any exceptional circumstances requiring us to correct any errors. As a result, we decline to consider that issue. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017) (when the State fails to cross-appeal a sentencing error that benefits the defendant, we will exercise our discretion to correct the error only under exceptional circumstances). After entry of his sentence, Dresbach filed a timely motion for new trial in December 2015, and amended the motion through new counsel in February 2017. On January 16, 2019, the trial court denied Dresbach’s motion for new trial following a for failing to explain adequately the strength of the evidence against
him, causing Dresbach to proceed to trial instead of accepting the
State’s plea offer. We affirm because Dresbach has failed to establish
a reasonable probability that he would have accepted the State’s
plea offer but for trial counsel’s alleged deficiency.
Viewed in the light most favorable to the jury’s verdicts, the
trial evidence showed the following. Dresbach had been convicted of
at least six felonies, including possession of methamphetamine with
intent to distribute. He was dating Gatewood in the spring of 2014.
Gatewood and Dresbach were friends with Vicki Barfield, and the
three friends would smoke methamphetamine together. On April 4,
Gatewood and Dresbach checked into a hotel. A hotel employee
sensed conflict between them and observed that Dresbach appeared
angry or upset.
Barfield was with the couple when they checked in, visited
them at least twice during the night, and returned sometime after
hearing. Dresbach timely appealed, and his case was docketed to this Court’s term beginning in December 2019 and submitted for a decision on the briefs. 2:00 a.m. on April 5 to smoke methamphetamine with the couple.
Barfield left around 3:09 a.m. and went to a nearby gas station to
play video games. While Barfield was at the gas station, Dresbach
called to ask Barfield to call 911. Dresbach sounded panicked and
“hysterical,” telling Barfield that he thought Gatewood had been
shot and asking her to make sure Gatewood was okay and to tell
Gatewood that he loved her. Barfield asked why Dresbach could not
call 911, and he replied, “What are you trying to do, set me up?”
Dresbach insisted that Barfield check on Gatewood and call 911, and
he hung up when Barfield said she would. Barfield went to the hotel,
knocked on the door, and, when there was no response, asked a hotel
employee to let her in because she was concerned that Gatewood was
hurt. Once inside, Barfield and the hotel employee found Gatewood’s
dead body. Gatewood died from a single gunshot wound to the chest.
Police located Dresbach two weeks later at another hotel,
where he had checked in under a different name. Before arresting
Dresbach, police noticed a gun in his waistband; Dresbach put the
gun down when instructed. Dresbach’s gun was submitted for testing, and a GBI firearms examiner determined that the gun had
fired the bullet that was recovered from Gatewood’s body. The
firearms examiner testified that a person had to apply 6.75 pounds
of pressure on the trigger to fire the gun.
During a police interview in which Dresbach was advised of his
Miranda2 rights, as well as in his trial testimony, Dresbach
admitted shooting Gatewood but claimed it was an accident.
Dresbach testified that he had smoked methamphetamine with
Gatewood and Barfield, had not slept for days, and was under the
influence when he began to undress in the bathroom to join
Gatewood in the shower. He claimed that he pulled his gun out of
his waistband, had it in his hand when he took his shirt off, fumbled
the gun, and accidentally pulled the trigger and shot Gatewood.
Dresbach admitted that he had the gun on him throughout the
night, including when he and Gatewood went to the store, and that
he generally kept a round in the chamber whenever he had the gun
on his person.
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 1. Dresbach does not challenge the sufficiency of the evidence
to support his convictions, but it is our customary practice in murder
cases to review the record independently to determine whether the
evidence was legally sufficient. Having done so, we conclude that the
evidence was sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Dresbach was guilty of the crimes
for which he was convicted. See Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979).
2. Dresbach argues that his trial counsel was ineffective for
failing to explain to him fully (1) the strength of the evidence against
him and (2) Georgia law governing his asserted defenses, claiming
that, had he been so advised, he would have accepted the State’s
plea offer of life with the possibility of parole. But Dresbach has not
pointed to evidence sufficient to show that he would have accepted
a plea offer even if counsel had advised him more fully about his
case. Therefore, his ineffectiveness claims fail.
For Dresbach to prevail on any of his claims, he must satisfy
the familiar standard of Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984), which requires Dresbach to
show both that his trial counsel’s performance was constitutionally
deficient and that he was prejudiced by this deficient performance.
See Mims v. State, 304 Ga. 851, 854-855 (2) (823 SE2d 325) (2019).
Because a defendant must satisfy both Strickland prongs, we need
not conduct the Strickland inquiry in any particular order or even
address both components of the test if the defendant makes an
insufficient showing on one. Strickland, 466 U.S. at 697; see also
Lawrence v. State, 286 Ga.
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308 Ga. 423 FINAL COPY
S20A0153. DRESBACH v. THE STATE.
PETERSON, Justice.
Irwin Clint Dresbach appeals his convictions for felony murder
and other crimes in connection with the shooting death of Jennifer
Gatewood.1 Dresbach argues that his trial counsel was ineffective
1 Gatewood was killed on April 5, 2014. In July 2014, a Fulton County
grand jury indicted Dresbach for malice murder, two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of methamphetamine, possession of a firearm during the commission of a felony, and three counts of possession of a firearm by a convicted felon. The State nolle prossed one count of possession of a firearm by a convicted felon, and a jury found Dresbach guilty on the remaining counts following a December 2015 trial. The trial court sentenced Dresbach to life without parole on one felony murder count, an eight-year consecutive term to serve for possession of methamphetamine, a five-year consecutive probated term for possession of a firearm during the commission of a felony, and a five-year consecutive probated term on one count of possession of a firearm by a convicted felon. The trial court purported to merge the remaining counts. The State argues that the trial court made sentencing errors in Dresbach’s favor, but it failed to file a cross-appeal and has failed to identify on appeal any exceptional circumstances requiring us to correct any errors. As a result, we decline to consider that issue. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017) (when the State fails to cross-appeal a sentencing error that benefits the defendant, we will exercise our discretion to correct the error only under exceptional circumstances). After entry of his sentence, Dresbach filed a timely motion for new trial in December 2015, and amended the motion through new counsel in February 2017. On January 16, 2019, the trial court denied Dresbach’s motion for new trial following a for failing to explain adequately the strength of the evidence against
him, causing Dresbach to proceed to trial instead of accepting the
State’s plea offer. We affirm because Dresbach has failed to establish
a reasonable probability that he would have accepted the State’s
plea offer but for trial counsel’s alleged deficiency.
Viewed in the light most favorable to the jury’s verdicts, the
trial evidence showed the following. Dresbach had been convicted of
at least six felonies, including possession of methamphetamine with
intent to distribute. He was dating Gatewood in the spring of 2014.
Gatewood and Dresbach were friends with Vicki Barfield, and the
three friends would smoke methamphetamine together. On April 4,
Gatewood and Dresbach checked into a hotel. A hotel employee
sensed conflict between them and observed that Dresbach appeared
angry or upset.
Barfield was with the couple when they checked in, visited
them at least twice during the night, and returned sometime after
hearing. Dresbach timely appealed, and his case was docketed to this Court’s term beginning in December 2019 and submitted for a decision on the briefs. 2:00 a.m. on April 5 to smoke methamphetamine with the couple.
Barfield left around 3:09 a.m. and went to a nearby gas station to
play video games. While Barfield was at the gas station, Dresbach
called to ask Barfield to call 911. Dresbach sounded panicked and
“hysterical,” telling Barfield that he thought Gatewood had been
shot and asking her to make sure Gatewood was okay and to tell
Gatewood that he loved her. Barfield asked why Dresbach could not
call 911, and he replied, “What are you trying to do, set me up?”
Dresbach insisted that Barfield check on Gatewood and call 911, and
he hung up when Barfield said she would. Barfield went to the hotel,
knocked on the door, and, when there was no response, asked a hotel
employee to let her in because she was concerned that Gatewood was
hurt. Once inside, Barfield and the hotel employee found Gatewood’s
dead body. Gatewood died from a single gunshot wound to the chest.
Police located Dresbach two weeks later at another hotel,
where he had checked in under a different name. Before arresting
Dresbach, police noticed a gun in his waistband; Dresbach put the
gun down when instructed. Dresbach’s gun was submitted for testing, and a GBI firearms examiner determined that the gun had
fired the bullet that was recovered from Gatewood’s body. The
firearms examiner testified that a person had to apply 6.75 pounds
of pressure on the trigger to fire the gun.
During a police interview in which Dresbach was advised of his
Miranda2 rights, as well as in his trial testimony, Dresbach
admitted shooting Gatewood but claimed it was an accident.
Dresbach testified that he had smoked methamphetamine with
Gatewood and Barfield, had not slept for days, and was under the
influence when he began to undress in the bathroom to join
Gatewood in the shower. He claimed that he pulled his gun out of
his waistband, had it in his hand when he took his shirt off, fumbled
the gun, and accidentally pulled the trigger and shot Gatewood.
Dresbach admitted that he had the gun on him throughout the
night, including when he and Gatewood went to the store, and that
he generally kept a round in the chamber whenever he had the gun
on his person.
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 1. Dresbach does not challenge the sufficiency of the evidence
to support his convictions, but it is our customary practice in murder
cases to review the record independently to determine whether the
evidence was legally sufficient. Having done so, we conclude that the
evidence was sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Dresbach was guilty of the crimes
for which he was convicted. See Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979).
2. Dresbach argues that his trial counsel was ineffective for
failing to explain to him fully (1) the strength of the evidence against
him and (2) Georgia law governing his asserted defenses, claiming
that, had he been so advised, he would have accepted the State’s
plea offer of life with the possibility of parole. But Dresbach has not
pointed to evidence sufficient to show that he would have accepted
a plea offer even if counsel had advised him more fully about his
case. Therefore, his ineffectiveness claims fail.
For Dresbach to prevail on any of his claims, he must satisfy
the familiar standard of Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984), which requires Dresbach to
show both that his trial counsel’s performance was constitutionally
deficient and that he was prejudiced by this deficient performance.
See Mims v. State, 304 Ga. 851, 854-855 (2) (823 SE2d 325) (2019).
Because a defendant must satisfy both Strickland prongs, we need
not conduct the Strickland inquiry in any particular order or even
address both components of the test if the defendant makes an
insufficient showing on one. Strickland, 466 U.S. at 697; see also
Lawrence v. State, 286 Ga. 533, 533-534 (2) (690 SE2d 801) (2010).
Where, as here, a defendant claims that trial counsel’s deficient
advice led to the rejection of a plea offer, a defendant must show
three things to establish prejudice:
(1) that but for the ineffective advice of counsel, there is a reasonable probability that the plea offer would have been presented to the court, meaning that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances; (2) that the trial court would have accepted the terms of the negotiated plea; and (3) 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. Yarn v. State, 305 Ga. 421, 426 (4) (826 SE2d 1) (2019) (citations and
punctuation omitted).
Dresbach argues that he was unaware that his own testimony
virtually guaranteed a guilty verdict on the felony murder count
predicated on possession of a firearm by a convicted felon, and that
trial counsel led him to believe that he had a realistic chance of an
acquittal or being found guilty on a lesser charge of voluntary
manslaughter. Trial counsel testified at the motion for new trial
hearing that they thought Dresbach had a viable accident defense to
the felony murder charge despite his convicted felon status and
thought the evidence supported a charge on involuntary
manslaughter and a charge drawn from Ford v. State, 262 Ga. 602,
603 (1) (423 SE2d 255) (1992), that a “status felony,” such as
possession of a firearm by a convicted felon, is not inherently
dangerous. Trial counsel admitted that without the requested jury charges, which were denied by the court, the jury could find
Dresbach not guilty of murder only by ignoring the law.3
Bypassing the deficiency prong, we conclude that Dresbach
cannot establish prejudice because he has failed to show that he
would have accepted a more favorable plea offer. See Yarn, 305 Ga.
at 427-428 (4) (defendant failed to show he would have accepted plea
offer when he failed to offer any direct evidence that he would); see
also Merzbacher v. Shearin, 706 F3d 356, 366-367 (4th Cir. 2013) (a
defendant must present credible evidence to establish a reasonable
probability that he would have accepted a plea deal but for trial
counsel’s deficiency). It is undisputed that the State presented
3 Although the jury was charged on accident, the parties acknowledge
that, even if the jury could find that the shooting were accidental, the undisputed evidence amply supported a conviction for felony murder predicated on possession of a firearm by a convicted felon, given that Dresbach admitted that he was carrying a loaded and chambered gun while under the influence of methamphetamine and decided to remove the gun from his waistband while Gatewood was nearby. See, e.g., Shivers v. State, 286 Ga. 422, 423-425 (3) (688 SE2d 622) (2010) (whether status felony is inherently dangerous depends on the facts of the case); Metts v. State, 270 Ga. 481, 482- 483 (1)-(2) (511 SE2d 508) (1999) (affirming felony murder conviction predicated on possession of a firearm by a convicted felon where defendant “pointed a loaded, cocked gun in the direction of a window, on the other side of which he knew there was a human being”). Dresbach with an offer to plead guilty and receive life with the
possibility of parole. The State told the trial court that it informed
trial counsel of the plea offer and that trial counsel responded that
Dresbach was not interested in the offer. During a colloquy with the
trial court, Dresbach stated that he was aware that he faced the
possibility of life without parole if he was found guilty at trial, he
discussed defenses with trial counsel, and he “absolutely” wanted to
go to trial. The evidence contemporaneous with the plea rejection
does not support Dresbach’s claim now that he was interested in the
plea offer. See Yarn, 305 Ga. at 427 (4) (noting that courts are to
“look to contemporaneous evidence to substantiate a defendant’s
post hoc assertions that he would have chosen differently had
counsel performed adequately” (citations and punctuation omitted)).
And evidence developed after trial does not support Dresbach’s
claim that his approach would have changed if only his counsel had
better advised him. At the hearing, trial counsel testified that,
despite the difficult facts presented in the case, Dresbach was not
interested in pleading guilty to life with the possibility of parole, because Dresbach found spending a minimum of 30 years in jail
simply “unacceptable.” See Ellison v. State, 299 Ga. 779, 781 n.1
(792 SE2d 387) (2016) (explaining that under OCGA § 17-10-6.1 (c)
(1), a defendant sentenced to life for murder is required to serve at
least 30 years before becoming eligible for parole). Trial counsel said
Dresbach told him from “day one” that he was not interested in such
a plea.
Despite the evidence showing that Dresbach was categorically
opposed to accepting a life sentence with the possibility of parole,
Dresbach maintains that there is a reasonable probability that he
would have accepted such a plea had trial counsel more fully advised
him of the strength of the evidence against him. But he offers
nothing more than argument in support. See Gramiak v. Beasley,
304 Ga. 512, 516 (I) (C) (820 SE2d 50) (2018) (“Arguments and
representations made in court briefs . . . do not constitute record
evidence to support a finding of fact.”).
Dresbach does not even cite his testimony at the motion for new
trial hearing, likely because, as the State points out, his testimony was equivocal and speculative as to whether he would have pleaded
guilty. At the hearing, Dresbach merely said that he would have
given the idea of pleading guilty “a lot more consideration,” and
there was a “good likelihood” that he would have accepted the plea
offer. When asked again, Dresbach said it was “very possible” that
he would have pleaded guilty. When asked to clarify whether “it’s
possible or you would?,” Dresbach did not explain, but simply said,
“yes.”
The evidence contemporaneous with Dresbach’s rejection of the
plea shows that he never wanted to plead guilty, and his after-the-
fact testimony is equivocal at best. Dresbach therefore cannot
establish prejudice from any trial counsel deficiency, and his
ineffective assistance claim fails.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Blackwell, Boggs, Warren, Bethel, and Ellington, JJ., concur. DECIDED APRIL 6, 2020. Murder. Fulton Superior Court. Before Judge LaGrua. Lauren B. Shubow, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Teri B. Walker, Richard B. Caplan, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.