304 Ga. 512 FINAL COPY
S18A0784. GRAMIAK v. BEASLEY.
BENHAM, Justice. This case involves the grant of a post-conviction petition for habeas
corpus. After a jury trial, Isaac Beasley was found guilty of rape, aggravated
sodomy, kidnapping with bodily injury, and aggravated assault. He was
convicted and sentenced to 20 years for the rape offense, 10 years for
aggravated sodomy, to be served consecutive to the rape sentence, life
imprisonment for kidnapping with bodily injury, to be served concurrent with
the sentence for rape, and 10 years for aggravated assault, to be served
concurrent with the sentence for aggravated sodomy. Beasley’s direct appeal
was affirmed by the Court of Appeals in an unpublished decision. Beasley v.
State, 331 Ga. App. XXV (Case No. A14A1522) (March 16, 2015) Beasley
then filed a pro se habeas petition in which he asserted he received
ineffective assistance of appellate counsel for failure to raise on direct appeal
Beasley’s claim that trial counsel failed to advise him that he faced a mandatory life sentence if convicted of the kidnapping charge. He claimed
that if he had been properly advised by trial counsel, he would have accepted
the State’s offer of a twenty-year sentence, to serve ten years in prison, with
respect to the rape charge and to nolle pros the remaining charges. After the
habeas court hearing at which Beasley appeared pro se, but did not testify,
Beasley obtained counsel who submitted a proposed order granting the
habeas petition.
The habeas court adopted counsel’s proposed order setting aside the
convictions and sentences. The final order concluded that Beasley’s trial
counsel provided deficient representation when he failed to advise Beasley
that he would face a mandatory life sentence if convicted of kidnapping with
bodily injury. The order also concluded that appellate counsel was
ineffective for failing to raise the issue on appeal because there was a
reasonable probability of a different result on appeal if the issue had been
raised. These conclusions were based on the habeas court’s finding that, had
Beasley been advised of the mandatory sentence he was facing, he would
have pleaded guilty and would have been sentenced to serve ten years in
prison. The respondent warden appeals. On appeal from the decision of a
habeas court that raises ineffective assistance of counsel, this Court will
adopt the habeas court’s findings of fact unless they are clearly erroneous,
but we will apply the facts to the law de novo to determine whether counsel
performed deficiently and whether any deficiency was prejudicial. See
Humphrey v. Morrow, 289 Ga. 864, 866 (717 SE2d 168) (2011). For the
reasons set forth below, we vacate the habeas court’s order and remand for
further proceedings.
I.
Under the familiar test of Strickland v. Washington,1 to prevail on a
claim of ineffective assistance of counsel, the party asserting the claim must
demonstrate both deficient performance of counsel and prejudice as a result
of it. Where the issue is the ineffective assistance of appellate counsel, the
showing of prejudice calls for a demonstration that a reasonable probability
exists that, but for appellate counsel’s deficient performance, the outcome of
the appeal would have been different. See Humphrey v. Lewis, 291 Ga. 202,
211 (IV) (728 SE2d 603) (2012), citing Nelson v. Hall, 275 Ga. 792, 794
466 U. S. 668, 678 (III) (104 SCt 2052, 80 LE2d 674) (1984). (573 SE2d 42) (2002). Consequently, where the alleged ineffective
assistance of appellate counsel is premised upon the failure to raise
ineffective assistance of trial counsel on direct appeal, two layers of fact and
law are involved in the analysis of the habeas court’s decision.
To find that appellate counsel provided ineffective assistance, a
reviewing court must find appellate counsel’s failure to raise trial counsel’s
ineffectiveness on appeal represents deficient professional conduct. Even if
deficient performance of appellate counsel is shown, a demonstration of
prejudice requires a showing that, had the ineffective assistance of trial
counsel been raised on direct appeal, a reasonable probability exists that the
outcome of the appeal would have been different. This, in turn, requires a
finding that trial counsel provided deficient representation and that the
defendant was prejudiced by it. In this case, if Beasley cannot show his trial
counsel provided ineffective assistance of counsel, then Beasley also cannot
show ineffective assistance of appellate counsel, because an attorney is not
deficient for failing to raise a meritless issue on appeal. See Shelton v. Lee,
299 Ga. 350, 357 (3) (788 SE2d 369) (2016); Humphrey v. Lewis, supra, 291
Ga. at 214 (V) (A) (i). Because the ineffectiveness of trial counsel plays a
role in both prongs of the test of ineffectiveness of appellate counsel, we start by examining whether Beasley has demonstrated that trial counsel was
ineffective.
A.
Addressing first the deficient performance prong of ineffective
assistance, the habeas court correctly concluded that trial counsel’s
performance was deficient. The transcript of the motion for new trial
hearing, which was made a part of the habeas court record, shows trial
counsel acknowledged he did not discuss with Beasley the possibility that he
could face a life sentence if convicted because it was counsel’s belief that
even the combined sentences on all counts charged would not result in a life
sentence. In fact, a conviction for kidnapping with bodily injury carries a
mandatory life sentence. See OCGA § 16-5-40 (d) (4). A defendant is
entitled to be fully informed of certain consequences of his decision to accept
or reject a plea offer, including the right to the informed legal advice of
counsel regarding the possible sentences that could be imposed following a conviction at trial.2 See Cammer v. Walker, 290 Ga. 251, 255 (2) (719 SE2d
437) (2011).
B.
To establish ineffective assistance of trial counsel, however, Beasley
must also show he was prejudiced by trial counsel’s deficient performance.
See Hall v. Lewis, 286 Ga. 767, 770 (II) (692 SE2d 580) (2010) (“To decide
whether [an appellant] was prejudiced by appellate counsel’s failure to raise
trial counsel’s ineffectiveness, this Court must examine the underlying
ineffectiveness of trial counsel claim and determine whether that claim would
have had a reasonable probability of success.”). See also Rozier v. Caldwell,
300 Ga. 30, 32 (2) (793 SE2d 73) (2016) (because the habeas petitioner failed
to show that his counsel on direct appeal could have prevailed on the claim
that his trial counsel was ineffective, his claim of ineffective assistance of
appellate counsel was found to be without merit).
The warden argues that the transcript of the pre-trial hearing at which the plea offer was discussed shows the prosecutor recited that the “only sentence” for kidnapping with bodily injury count is life, and that Beasley was therefore aware of the punishment he faced if convicted. But the habeas court noted that at the sentencing hearing both trial counsel and the trial court appeared to be unaware, until corrected by the prosecutor, that the kidnapping conviction carried a mandatory life sentence. Therefore, the habeas court concluded that Beasley’s counsel was unaware of the mandatory nature of the sentence and that Beasley was not properly informed of the consequences of his plea decision. We find these factual conclusions were not clearly erroneous. In a case such as this one, involving the alleged ineffective assistance
of counsel in the context of a rejected plea offer, the United States Supreme
Court has held that where the performance of a criminal defendant’s trial
counsel was deficient, the defendant “must show the outcome of the plea
process would have been different with competent advice.” Lafler v. Cooper,
566 U. S. 156, 163 (II) (B) (132 SCt 1376, 182 LE2d 398) (2012). Three
criteria must be met to satisfy the prejudice prong of the Strickland test. The
defendant must show:
[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 (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [2] that the court would have accepted its terms, 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.
Id. at 164. See also Missouri v. Frye, 566 U. S. 134 (132 SCt 1399, 182
LE2d 379) (2012).3 While this Court has not expressly applied this multi-
Both Frye and Lafler involved cases in which trial counsel’s conduct was deficient because counsel had either failed to communicate a plea offer to the defendant or had advised the defendant to reject an offer, whereas in this case the plea offer was rejected after trial counsel communicated the plea offer but provided inadequate legal advice regarding the mandatory sentence that would be imposed upon conviction. As the Supreme Court noted in Lee v. United States, __U. S. __ n.1 (137 SCt 1958, 198 LE2d 476) (2017), however, Frye and Lafler articulated the way to show prejudice in the context of plea offers not accepted. step requirement for satisfying the prejudice prong for ineffective assistance
of counsel in the context of a rejected plea offer, the Court of Appeals has
done so. See Walker v. State, 341 Ga. App. 742, 745-746 (801 SE2d 621)
(2017); State v. Lexie, 331 Ga. App. 400, 403-404 (771 SE2d 97) (2015).
Because the courts of this State are obligated to follow the rulings of the
United States Supreme Court with respect to the Sixth Amendment standard
for determining prejudice in cases asserting ineffective assistance of counsel,
Georgia courts must apply the standard established in Lafler and Frye for
demonstrating compliance with the Sixth Amendment right of counsel in
cases involving plea offers. Accord Alcorn v. State, 121 S3d 419 (III) (Fla.
2013) (concluding that the requirements imposed by the United States
Supreme Court to demonstrate prejudice in cases involving the assertion that
the defendant received ineffective assistance of counsel during the plea-
bargaining process apply to the courts of Florida under the Sixth
Amendment).
The third criterion for demonstrating prejudice is readily established in
this case. The sentence under the offer’s terms (if accepted by the defendant
and the trial court) would have been less severe than the mandatory life sentence imposed for the conviction for kidnapping with bodily injury. It is
the first and second criteria that pose difficult issues in this case.
C.
With respect to whether the plea offer would have been presented to
the trial court, the record reflects no intervening circumstances that might
have prompted the State to withdraw its plea offer since the plea hearing was
held immediately prior to the trial’s commencement. But a conclusion that
the plea offer would have been presented for approval to the trial court also
requires a finding that Beasley would have accepted the plea had he been
advised by counsel that a life sentence was mandatory for a conviction for the
kidnapping with bodily injury charge. See Lafler v. Cooper, supra, 566 U. S.
at 164 (II) (B). No direct evidence was presented to the habeas court on this
issue. Beasley did not provide sworn testimony at the habeas hearing or at
the motion for new trial hearing. The habeas court simply recited that
Beasley had consistently asserted in his motion for new trial and appeal that
he would have pleaded guilty had he known he was facing this mandatory
sentence. Arguments and representations made in court briefs, however, do not constitute record evidence to support a finding of fact. See Brown v.
Fokes Props. 2002, Inc., 283 Ga. 231 (657 SE2d 820) (2008).
Before Lafler and Frye, this Court held that in a case in which the
defendant complains he went to trial instead of pleading guilty because his
plea counsel provided deficient representation, prejudice from counsel’s
deficient performance “can only be shown by some indication that the
defendant was amenable to the offer made by the state.” Lloyd v. State, 258
Ga. 645, 648 (2) (b) (373 SE2d 1) (1988). Rather than adopting a strict rule
to govern this issue — such as a presumption that a defendant would have
accepted any plea offer that was more favorable than the actual outcome of
the trial had he received constitutionally effective representation of plea
counsel, or a requirement that a defendant show he had evidenced a pre-
verdict interest in entering a plea — this Court stated: “[W]e prefer to
examine the facts of each case and grant relief where there is at least an
inference from the evidence that the defendant would have accepted the offer
as made or something similar [but for counsel’s deficient representation].”
Id. Later, this Court clarified that the Lloyd opinion was not intended to
lower the evidentiary burden for establishing Strickland prejudice in the
context of plea negotiations. Cleveland v. State, 285 Ga. 142, 146 (674 SE2d 289) (2009). In Cleveland, applying a clearly erroneous standard of review,
we affirmed a trial court’s finding, in its order denying a new trial, that the
criminal defendant failed to demonstrate a reasonable probability he would
have accepted the pretrial plea offer made, but for his trial counsel’s failure
to advise him adequately regarding certain incriminating evidence that would
be admitted at trial. Id. at 147-148. Although the defendant in Cleveland
testified at the hearing on his motion for new trial that he would have
accepted the plea offer had he been properly advised of the admissible
evidence, the trial court made a credibility determination and rejected that
self-serving testimony in light of the defendant’s trial testimony declaring his
innocence. See also Childrey v. State, 294 Ga. App. 896, 899 (670 SE2d
536) (2008) (recognizing the self-serving nature of a defendant’s post-
conviction testimony about his intent to accept a plea offer if his counsel had
properly advised him of the mandatory sentence he faced if convicted).
Notwithstanding the habeas court’s conclusion in the case now before us that
Beasley received inadequate legal representation at the plea stage in that he
did not appear to have been advised that he faced a mandatory life sentence if
convicted on the kidnapping charge, a claim of ineffective assistance requires
a showing of prejudice from the deficient representation. In the context of the rejection of a plea offer, this requires a showing that a reasonable
likelihood exists that he would have accepted the plea offer but for trial
counsel’s deficient representation.
The United States Supreme Court, also, has emphasized the need for a
case-by-case examination of the totality of the evidence to determine if
prejudice is shown by plea counsel’s deficient performance. See Lee v.
United States, __ U. S. __ (137 SCt 1958, 198 LE2d 476) (2017) (involving a
defendant’s attempt to set aside his guilty plea conviction on the ground that
he would not have entered a guilty plea had he been properly informed that
such a plea would result in deportation). Additionally, the Supreme Court
has indicated that a court should look to contemporaneous evidence to
substantiate a defendant’s post hoc assertion that he would not have pleaded
guilty but for his attorney’s deficiencies in adequately representing him at the
plea stage. Id. at __ (II) (C). In Lee, the record clearly indicated that the
defendant’s primary concern at the time he entered his guilty plea was
avoidance of deportation, and that he would have accepted the almost certain
risk of conviction at trial which would have resulted in deportation rather
than the absolute certainty of deportation upon the court’s approval of a
guilty plea. Id. The circumstances in this case are different from those in Lee. For one,
in Lee, the defendant sought to set aside his guilty plea on the ground his trial
counsel did not properly inform him of the consequences of accepting the
plea offer, whereas in this case the defendant seeks relief from his trial
conviction and sentence on the ground his trial counsel did not properly
inform him of the consequences of rejecting the plea offer and risking a
conviction after trial. Moreover, in the case now before us, the record
contains, at best, conflicting contemporaneous evidence with respect to
whether Beasley would have accepted the State’s plea offer, as opposed to
the clear indication in Lee that the defendant would not have accepted the
plea offer but for trial counsel’s deficient representation. Beasley’s trial
counsel testified at the motion for new trial hearing that Beasley was
uninterested in discussing a plea deal and was focused on contesting the facts
of the case at trial. On the other hand, on cross-examination by the State,
trial counsel agreed with the prosecutor’s apparent mischaracterization of his
direct testimony (without objection) as being that although Beasley was
interested in a plea, he wanted to contest the case.
Of course, as noted above, trial counsel failed to explain to Beasley that
he would face a mandatory life sentence if convicted of the kidnapping charge, from which the habeas court could reasonably conclude that
Beasley’s decision was not a fully informed one. The significant difference
between the ten-years-to-serve punishment offered by the State versus the
mandatory life sentence Beasley faced if convicted at trial serves as
additional evidence that could support an inference regarding the reasonable
probability that Beasley would have accepted the plea offer but for deficient
representation of counsel. See Daniel v. State, 342 Ga. App. 448, 453 (2) (b)
(803 SE2d 603) (2017). See also Lloyd v. State, supra, 258 Ga. at 648 (2) (b)
(relief may be granted “where there is at least an inference from the
evidence” that the defendant would have accepted a plea offer but for
counsel’s deficient representation). At the habeas court hearing, appellate
counsel testified that his notes from a conversation with Beasley’s fiancée
indicated that Beasley’s trial attorney told Beasley and her that the maximum
sentence he would face was 20 years, and that counsel figured under a worst
case scenario Beasley would be released in about 14 years if convicted at
trial. According to these notes, the fiancée told appellate counsel that
Beasley would have accepted the plea offer if he had known he was facing a
mandatory life sentence.4 Given this scant evidence, we cannot conclude as a 4
Although this testimony was based upon double hearsay, no objection was raised. matter of law that Beasley either would or would not have accepted the
State’s plea offer if trial counsel had properly advised him on the issue of
punishment upon conviction. This record evidence, though weak, creates an
issue for determination by the habeas court with respect to whether a
reasonable probability exists that Beasley would have accepted the State’s
plea offer, but for the deficient advice of counsel.
On remand, the habeas court is directed to make a finding based on
evidence in the record as to whether Beasley would have accepted the State’s
plea offer if he had been afforded effective assistance of trial counsel who
adequately informed him that he would face a mandatory life sentence upon
conviction of the kidnapping charge. See Lloyd v. State, supra, 258 Ga. at
648 (2) (b). Establishing a reasonable probability that the defendant would
have accepted the plea offer if he had been afforded reasonably competent
advice of counsel involves a prediction about the defendant’s action. But
“[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, supra, 466 U. S. at 669.
Accordingly, the probability that a defendant would have accepted a plea
offer needs only to be sufficient to undermine the confidence that the plea
would not have been accepted even if trial counsel had provided effective assistance at the plea stage. See Odegaard v. Florida, 137 S3d 505, 512 (Fla.
Dist. Ct. App. 2014) (LaRose, J., concurring specially). See also Daniel v.
State, supra, 342 Ga. App. at 454 (2) (b) (reversing the trial court’s
conclusion that a defendant would not have accepted the State’s plea offer
even if he had been properly advised because counsel’s erroneous advice left
him without a proper understanding of the sentence he was facing or the
gravity of the risk of losing at trial). Compare Osley v. United States, 751
F3d 1214, 1225 (III) (A) (11th Cir. 2014) (rejecting a defendant’s claim that
he would have accepted a plea offer had he known he was facing a
mandatory minimum sentence upon conviction where the record showed he
had rejected a plea offer with a significantly lower sentence and had
maintained his innocence before and after trial).
If, on remand, the habeas court determines there was no reasonable
probability that Beasley would have accepted the plea but for the deficient
performance of trial counsel, then applying the Lafler test, the court would be
required to deny habeas relief. If Beasley cannot establish a reasonable
likelihood that he would have prevailed on direct appeal, then even assuming
appellate counsel’s performance was deficient because he failed to raise ineffective assistance of trial counsel on appeal, Beasley fails to demonstrate
prejudice from that failure.
D.
With respect to the second criterion of the Lafler test — that the trial
court would have accepted the terms of the offered plea — the habeas court
made no finding, apparently failing to recognize that Lafler added criteria to
the prejudice analysis for rejected plea offers that this Court had set forth in
Lloyd and Cleveland. In Georgia, a trial court is not bound by a plea
agreement between the defendant and the State and has the discretion to
refuse to accept a negotiated guilty plea. See Uniform Superior Court Rule
33.5 (C); State v. Germany, 246 Ga. 455 (1) (271 SE2d 851) (1980); Walker
v. State, 341 Ga. App. 742, n. 1 (801 SE2d 621) (2017). Consequently, a
showing of prejudice as a result of plea counsel’s deficient performance
requires the defendant to show a reasonable probability that the trial court
would not have refused to accept the plea. Missouri v. Frye, supra, 566 U. S.
at 147 (II) (C).
Making such a showing may be difficult in the context of a habeas
proceeding because it requires a prediction about what the trial court would have done had the defendant accepted the plea offer. But, similar to a
determination of a reasonable probability that the defendant would have
accepted the plea offer if he had been afforded reasonably competent advice
of counsel, the probability that the trial court would have accepted the plea
needs only be sufficient to undermine the confidence that the plea would not
have been approved.
At a brief hearing conducted immediately prior to trial at which
Beasley reiterated his not guilty plea, the trial court asked whether any plea
discussions had been conducted with the defendant. The court was informed
of the terms of the offer that was made and that the State would recommend a
sentence of ten years to serve if the offer was accepted, but counsel
announced that Beasley rejected the offer. The court did not indicate it
would have accepted the recommended sentence if Beasley had entered a
guilty plea, but also expressed no concern about the plea offer. At the
sentencing hearing after the return of the jury’s verdict, the trial court initially
announced that with respect to the kidnapping with bodily injury charge, it
would sentence Beasley to ten years to serve. After a bench conference that
was not transcribed, the trial court stated it had been advised that the
kidnapping with bodily injury conviction carries a mandatory sentence of life imprisonment and sentenced Beasley accordingly. Based on this evidence, it
is possible to conclude that the trial court would have accepted the offered
guilty plea if Beasley had accepted it. On remand, if the habeas court finds a
reasonable probability that Beasley would have accepted the plea offer, the
habeas court must make a finding as to whether there was a reasonable
probability that the trial court would have accepted the guilty plea under the
terms the State offered. If not, then applying the Lafler test, the court would
be required to deny habeas relief. If Beasley cannot establish a reasonable
likelihood that the trial court would have accepted the offered guilty plea,
then even assuming appellate counsel’s performance was deficient because
he failed to raise ineffective assistance of trial counsel on appeal, Beasley
fails to demonstrate prejudice from that failure.
II.
Finally, we address the issue of whether appellate counsel provided
constitutionally ineffective assistance. The required prejudice prong of this
analysis is discussed above. But to prevail on his claim that appellate
counsel’s failure to raise ineffective assistance of trial counsel on appeal establishes ineffective assistance of appellate counsel, Beasley must also
demonstrate that this omission represents deficient professional conduct —
that is, that it was “outside the wide range of professionally competent
assistance.” Strickland v. Washington, supra, 466 U. S. at 690 (III) (A). This
requires a showing that no reasonable attorney would have made the same
choice with respect to raising, or failing to raise, an issue on appeal. See
Trim v. Shepard, 300 Ga. 176, 177 (794 SE2d 114) (2016). Compare State v.
Worsley, 293 Ga. 315, 323 (3) (745 SE2d 617) (2013) (addressing deficient
performance of trial counsel). “And to carry that burden, the defendant must
show these things by competent evidence . . . .” Worsley, 293 Ga. at 324.
Among other things, appellate counsel testified at the habeas hearing
about his experience and qualifications as appellate counsel in criminal cases
and about his process for deciding which issues to raise on Beasley’s appeal.
Appellate counsel raised ineffective assistance of trial counsel on this ground
in Beasley’s amended motion for new trial, but then expressly abandoned
that claim. On direct appeal he did not raise this issue and instead picked
only the issues he thought had the best chance of success after speaking to
Beasley, trial counsel, the investigator who helped prepare Beasley’s defense,
and Beasley’s fiancée. As noted earlier in this opinion, appellate counsel disclosed that a note in his file indicated Beasley’s fiancée told him Beasley
would have pleaded guilty had he known he was facing a life sentence upon
conviction. Counsel, however, was not questioned about, and did not testify
to, any analysis he made concerning whether he could demonstrate both
deficient performance of trial counsel and prejudice resulting from it and
therefore prevail on appeal. Based on his investigation of possible grounds
for appeal, counsel testified he advised Beasley to raise on appeal only issues
relating to venue and an arguably improper jury charge, and to wait to raise
ineffective assistance of trial counsel until the habeas stage should he lose the
direct appeal. Even though Beasley wanted him to raise ineffective
assistance of trial counsel on appeal, counsel testified he raised those issues
he thought were the “best issues.” The Court of Appeals rejected the issues
that were raised on appeal and affirmed the trial court.
On remand, even if the habeas court finds ineffective assistance of trial
counsel, and also finds appellate counsel’s decision not to pursue the issue on
appeal prejudiced Beasley because it was likely a winning argument, the
habeas court must make a determination of whether the failure to pursue this
issue amounts to deficient performance of appellate counsel. The habeas
court order incorrectly recites that if a reasonable probability of a different result exists if an issue had been raised on appeal, then “it follows” that
appellate counsel was deficient for failing to raise the issue on appeal. This
is an incorrect analysis of the issue. “With respect to deficient performance,
we have explained that the question is not whether an appellate 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.” (Citation and punctuation omitted.) Trim v. Shepard, supra,
300 Ga. at 177. See also Hooks v. Walley, 299 Ga. 589, 592 (791 SE2d 88)
(2016).5 To prevail on the deficiency prong of the Strickland test requires the 5
Importantly, the question in assessing deficient performance of appellate counsel is not whether, in fact, Beasley would have accepted the State’s plea offer had he not received deficient advice from trial counsel about his sentence exposure, as we discussed earlier and have directed the habeas court to determine on remand. Nor is the relevant question whether appellate counsel reasonably thought that a claim of ineffective assistance of trial counsel would be successful if raised in a future habeas proceeding. Instead, for appellate counsel to be deemed deficient, it must be shown that appellate counsel made an objectively unreasonable prediction about whether the trial court would decide on motion for new trial that trial counsel was ineffective. As part of this showing, it must be demonstrated that appellate counsel made an objectively unreasonable prediction about Beasley’s ability to satisfy the Lafler criteria for showing prejudice from trial counsel’s performance, including whether Beasley could show that he would have accepted the State’s plea offer had he been advised of the mandatory life sentence for kidnapping with bodily injury. And the reasonableness of that prediction must be assessed not in hindsight, but rather, based on the information available to appellate counsel at the time he was deciding which issues to pursue on the motion for new trial (and then on direct appeal, if the trial court denied the motion). That information notably did not include Beasley’s own account about whether he would have accepted the plea offer if properly advised. We note that if Beasley had testified to that at the motion for new trial hearing, his testimony would have been subject to the crucible of cross-examination and the trial court would have been allowed to make a direct assessment of his credibility. We also note that deciding whether to call a witness, including one’s own client, is normally considered a matter of strategy based in part on counsel’s assessment of whether the witness would be credible; and in any event, a court cannot speculate about what Beasley’s testimony would have been, because even in the habeas proceeding, no such testimony was offered. See McDuffie v. State, 298 Ga. 112, 116 (779 SE2d 620) (2015). Against this absence of direct evidence from Beasley, appellate counsel had petitioning party to show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, supra, 466 U. S. at 687 (III).
Further, judicial scrutiny of counsel’s performance must be highly deferential
to counsel’s conduct and must apply the strong presumption that counsel’s
conduct falls within the broad range of professional competence. See, e.g.,
Mosby v. State, 300 Ga. 450, 455 (2) (796 SE2d 277) (2017). The habeas
court did not consider, and the parties did not adequately brief either the
habeas court or this Court on, whether appellate counsel’s performance was
outside the range of professionally competent assistance that is required by
the deficient performance prong of Strickland. Accordingly, we decline to
make a determination regarding the sufficiency of appellate counsel’s
professional conduct in the first instance, and remand this issue to the habeas
court.
III.
available only trial counsel’s at-best equivocal testimony about Beasley’s inclination to enter a negotiated plea, the post-conviction hearsay statement of Beasley’s fiancée that Beasley would have accepted the plea offer if properly advised, and the significant differential between the sentence under the plea offer versus the sentence if convicted of kidnapping. In summary, we vacate the habeas court’s order granting Beasley’s
petition for habeas relief and remand for further consideration and findings in
accordance with this opinion. This includes a required determination of
whether prejudice resulted from trial counsel’s deficient representation. On
remand, the habeas court is instructed to apply the prejudice test for trial
counsel’s performance set forth by the United States Supreme Court in Lafler
and Frye. Only if both deficient representation by trial counsel and prejudice
as a result of that deficiency are found is there a reasonable probability that
Beasley would have prevailed had he raised ineffective assistance of trial
counsel on appeal. And even if the habeas court reaches this conclusion and
determines that Beasley was prejudiced by appellate counsel’s failure to raise
ineffective assistance of trial counsel on direct appeal, ineffective assistance
of appellate counsel requires a finding that counsel’s performance was
deficient by his failure to raise that issue.
Additionally, if the habeas court concludes both prongs of the
ineffective assistance test for appellate counsel are met, then the habeas court
must consider the remedy for that violation of Beasley’s Sixth Amendment right to effective assistance of counsel.6 “[A] remedy must neutralize the
taint of a constitutional violation . . . while at the same time not grant a
windfall to the defendant . . . .” (Citation and punctuation omitted.) Lafler v.
Cooper, supra, 566 U. S. at 170 (II) (C).
Judgment vacated and case remanded with direction. All the Justices
concur.
Decided October 9, 2018.
Habeas corpus. Ware Superior Court. Before Judge Blount, Senior
Judge.
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Michael A. Oldham, Assistant Attorney General, for appellant.
Zell & Zell, Rodney S. Zell, for appellee.
The habeas court’s order set aside Beasley’s conviction and sentence in its entirety. If on remand, however, the habeas court again grants the petition for habeas relief then it follows that, based upon the acceptance of his guilty plea, Beasley would have been convicted of the rape charge and sentenced to twenty years with ten years to serve. The remedy issue was not briefed by the parties in this Court, but if that issue is reached on remand, it should be briefed by the parties below and considered by the habeas court.