Harris v. Upton

739 S.E.2d 300, 292 Ga. 491, 2013 Fulton County D. Rep. 422, 2013 WL 776494, 2013 Ga. LEXIS 191
CourtSupreme Court of Georgia
DecidedMarch 4, 2013
DocketS12A1498
StatusPublished
Cited by10 cases

This text of 739 S.E.2d 300 (Harris v. Upton) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Upton, 739 S.E.2d 300, 292 Ga. 491, 2013 Fulton County D. Rep. 422, 2013 WL 776494, 2013 Ga. LEXIS 191 (Ga. 2013).

Opinion

Thompson, Presiding Justice.

Appellant Alvin Harris was tried in June 1999 and convicted of felony murder, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon for which he received a mandatory life sentence for felony murder plus consecutive and concurrent terms on the additional counts. His convictions and sentence were affirmed on direct appeal in Harris v. State, 279 Ga. 304 (612 SE2d 789) (2005).

In 2008, Harris filed a petition for habeas corpus raising numerous grounds for relief, including several alleging ineffective assistance of appellate counsel. Following an evidentiary hearing at which Harris was represented by counsel and both Harris and his appellate counsel testified, the habeas court entered an order denying relief. Harris timely filed an application for certificate of probable cause to appeal asserting that the habeas court erred in rejecting two of his ineffective assistance of appellate counsel claims in which he argued appellate counsel failed to reasonably investigate and submit evidence in support of his claims on appeal that trial counsel (1) was ineffective for failing to inform him of a plea offer made by the State and (2) was under the influence of drugs during the time he represented Harris.

This Court granted Harris’ application for certificate of probable cause to appeal to consider whether Harris’ appellate counsel was ineffective for failing to investigate and present evidence on these claims, particularly in light of the recent United States Supreme Court decision in Missouri v. Frye,_U. S._(132 SC 1399, 182 LE2d 379) (2012). For the reasons that follow, we affirm the habeas court’s decision.

1. The standard under which we consider Harris’ ineffective assistance of appellate counsel claims is that established by the United States Supreme Court in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), requiring a showing of both deficient performance and prejudice caused by the deficiency. Battles v. Chapman, 269 Ga. 702 (1) (506 SE2d 838) (1998). To establish deficient performance, a habeas petitioner must overcome the strong presumption that appellate counsel’s actions fell within the broad range of reasonable professional conduct, the reasonableness of which is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. Barker v. Barrow, 290 Ga. 711, 712 (723 SE2d 905) (2012). “Circumstances knowable only through hindsight are not considered. [Cit.]” Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). Moreover, the prejudice prong requires [492]*492the petitioner to show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Walker v. Hagins, 290 Ga. 512-513 (722 SE2d 725) (2012). Finally, on review, this Court is required to accept the habeas court’s findings of fact and credibility determinations unless clearly erroneous, although it independently applies those facts to the law. Head v. Ferrell, 274 Ga. 399, 404 (V) (554 SE2d 155) (2001).

At the habeas hearing, Harris submitted a letter from the State to Harris’ trial counsel dated approximately two months prior to trial offering Harris a plea deal of 20 years to serve on voluntary manslaughter and noting that a felony murder conviction would carry a life sentence. Harris testified that trial counsel never showed him the letter and claimed he did not learn of the plea offer until after his sentencing hearing when his mother told him about it. Harris claims that trial counsel told his mother about the plea offer but instructed her not to tell Harris because counsel thought he could get Harris a lighter sentence. Harris also testified his trial counsel never advised him he was facing a mandatory life sentence if convicted of felony murder. Harris submitted the transcript from his sentencing hearing showing trial counsel presented mitigating evidence on Harris’ behalf and asked the trial court not to impose a life sentence following his conviction as evidence that counsel was unaware of the law and likely had never read the State’s plea offer containing this information. Finally, Harris sought to submit other evidence he asserted could have been used to bolster his ineffective assistance of trial counsel claims, including trial counsel’s time sheets from the public defender’s office; records of trial counsel’s subsequent disbarment; and records from trial counsel’s divorce proceedings.1

In its recent decision in Missouri v. Frye, supra, 132 SC at 1402, the United States Supreme Court determined that the negotiation of a plea bargain constitutes a critical stage for ineffective-assistance purposes, and held that “defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.” This holding is consistent with long-standing Georgia precedent that the failure to convey a plea offer renders counsel’s performance deficient, although prejudice can only be shown by some indication that the defendant was amenable to the offer. Lloyd v. State, 258 Ga. 645, 648 (373 SE2d 1) (1988); see Lafler v. Cooper,___ U. S._(132 SC 1376, 1384, 182 LE2d 398) [493]*493(2012) (“In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice”).

Here, Harris claims he would have accepted the State’s plea offer had he known of it and been properly advised by trial counsel. Although he admits this claim and that involving trial counsel’s alleged drug use were raised on direct appeal and rejected by this Court, he argues his inability to prevail on these claims was due to appellate counsel’s deficient representation, specifically her failure to reasonably investigate and submit evidence in support of these claims other than Harris’ testimony. He asserts the habeas court’s findings are clearly erroneous and contends the court erred in concluding he failed to prove his appellate counsel was ineffective under Strickland. Thus, the primary issue for review by this Court is whether Harris’ appellate counsel was deficient for failing to conduct a reasonable investigation of Harris’ claims on appeal and whether Harris was prejudiced as a result.

2. “[I]n any case in which the effectiveness of counsel for inadequate investigation is claimed, the reasonableness of a particular decision not to investigate in the manner urged must be assessed in light of all the circumstances at that time, and such assessment must include a heavy measure of deference to counsel’s judgments. [Cit.]” Barker v. Barrow, supra, 290 Ga. at 713. However, counsel’s failure to investigate is unreasonable where it is the result of inattention, rather than reasoned strategic judgment. Terry, supra at 347.

(a) Harris argues appellate counsel failed to investigate his ineffective assistance of trial counsel claims regarding lack of notice of the plea offer and trial counsel’s drug use and claims this failure was due to inattention rather than strategic judgment, pointing to the fact that appellate counsel only added these claims in a second amended motion filed immediately prior to the motion for new trial hearing.

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Bluebook (online)
739 S.E.2d 300, 292 Ga. 491, 2013 Fulton County D. Rep. 422, 2013 WL 776494, 2013 Ga. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-upton-ga-2013.