SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 27, 2012
In the Court of Appeals of Georgia A12A0032. IN THE INTEREST OF K. F., A CHILD
BARNES, Presiding Judge.
K. F. was adjudicated delinquent for acts which would have constituted theft
by receiving stolen property, three counts of burglary, and one count of attempted
burglary if committed by an adult. He was also adjudicated delinquent for possession
of a firearm by a person under 18. The juvenile court sentenced him as a designated
felon and committed him to the custody of the Department of Juvenile Justice for five
years in restrictive custody in a youth detention center. K. F. appeals, contending that
his counsel was ineffective, and that the juvenile court abused its discretion in
sentencing him as a designated felon.1 For the reasons that follow, we affirm.
1 After K. F filed a notice of appeal of his adjudication, the trial court appointed new counsel to represent him on appeal. In Case No. A11A1461, we remanded the case for a hearing on the merits of his ineffective assistance claim. Following a 1. K. F. contends his trial counsel was ineffective by failing to communicate
the State’s plea offer to him and the evidence it planned to present, and that had he
been informed he would have taken any recommendation for less than the five years
he was sentenced.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that his counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that counsel’s performance falls within the broad range of reasonable professional conduct. The trial court’s findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.
In the Interest of T. M., 303 Ga. App. 322, 324-325 (2) (693 SE2d 574) (2010). In the
context of the plea process, “the proper question at the prejudice step is whether [K.
F.] demonstrated that, but for counsel’s deficient performance, there is a reasonable
probability that he would have accepted the State’s plea offer.”Cleveland v. State, 285
Ga. 142, 145 (674 SE2d 289) (2009).
hearing on K. F.’s ineffectiveness claim, the juvenile court determined that K. F. failed to overcome the presumption of effective assistance of counsel.
2 A defendant “is entitled to be told that an offer to plead guilty has been made
and to be advised of the consequences of the choices confronting him. For counsel
to do otherwise amounts to less than reasonably professional assistance.” Lloyd v.
State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988). Moreover, “(p)rior to trial an
accused is entitled to rely upon his counsel to make an independent examination of
the facts, circumstances, pleadings and laws involved and then to offer his informed
opinion as to what plea should be entered.” Cleveland v. State, 285 Ga. 142, 144 (674
SE2d 289) (2009).
At the ineffective assistance hearing, K. F.’s trial counsel testified that she met
with K. F. from 10 to 12 times, with the last visit occurring the day before the trial.
She testified that she discussed the facts of his case extensively with K. F., including
the discovery as it became available, and that she was confident that K. F. understood
all of the evidence against him. Trial counsel testified that she “knew this would be
a . . . designated felony, since it would be [K.F.’s] fourth felony” and that she
explained to K. F. that he could receive a five-year sentence if adjudicated guilty, but
that she worked out a plea offer of three years which she communicated to K. F. She
testified that the first offer of three years was “early, on before the arraignment” and
she conveyed the offer to K. F. that same day. Trial counsel testified that the three-
3 year offer was later rescinded, but that on the day of K. F.’s disposition, she
convinced the State to renew the three-year offer but that K. F.’s parents thought that
it was too much time and wanted to “leave it up to the judge.” .
K.F. testified at the hearing that trial counsel visited him only twice, and never
communicated any information about the evidence that would be presented at trial,
or that the State had presented any plea offers. He testified that had he known about
an offer for less time, based on the evidence the State had, and the five-year sentence
he was facing, he would have pled guilty. Despite’s K. F. ‘s testimony otherwise, the
trial court was authorized to believe counsel’s testimony over his. Curry v. State, 238
Ga. App. 511, 522 (5) (b) (519 SE2d 269) (1999).
2. K. F. also contends that the trial court erred in sentencing him as a
designated felon. He maintains that the sentence was not warranted under OCGA §
15-11-63 because it was not in the best interest of the child, his past felony charges
were non-violent, he has a loving and supportive home, the nature and circumstances
of his current offense were not serious, and none of the victims were present when the
crimes were committed.
“‘Designated felony act’ means . . . [an] act which, if done by an adult, would
be a felony, if the child committing the act has three times previously been
4 adjudicated delinquent for acts which, if done by an adult, would have been felonies.”
OCGA § 15-11-63 (a) (2) (B) (vii). “Where a child is found to have committed a
designated felony act, the order of disposition . . . shall include a finding based on a
preponderance of the evidence as to whether . . . the child does or does not require
restrictive custody under [OCGA § 15-11-63].” OCGA § 15-11-63 (b).
To determine whether restrictive custody is warranted, the juvenile court must
consider and make written findings about these factors: (1) the needs and best interest
of the child; (2) the record and background of the child; (3) the nature and
circumstances of the offense, including whether any injury sustained by the victim
was actually inflicted by the child or another; (4) the need to protect the community;
and (5) the age and physical condition of the victim. OCGA § 15-11-63 (c); In the
Interest of J. W., 306 Ga. App. 339, 341 (3) (702 SE2d 649) (2010). The weight to be
accorded each factor, and the ultimate decision about whether restrictive custody is
warranted, is committed to the sound discretion of the juvenile court. In the Interest
of I. C., 300 Ga. App. 683, 686 (2) (a) (686 SE2d 279) (2009).
Here, the juvenile court’s commitment order reflected that the court considered
the factors in OCGA § 15-11-63
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 27, 2012
In the Court of Appeals of Georgia A12A0032. IN THE INTEREST OF K. F., A CHILD
BARNES, Presiding Judge.
K. F. was adjudicated delinquent for acts which would have constituted theft
by receiving stolen property, three counts of burglary, and one count of attempted
burglary if committed by an adult. He was also adjudicated delinquent for possession
of a firearm by a person under 18. The juvenile court sentenced him as a designated
felon and committed him to the custody of the Department of Juvenile Justice for five
years in restrictive custody in a youth detention center. K. F. appeals, contending that
his counsel was ineffective, and that the juvenile court abused its discretion in
sentencing him as a designated felon.1 For the reasons that follow, we affirm.
1 After K. F filed a notice of appeal of his adjudication, the trial court appointed new counsel to represent him on appeal. In Case No. A11A1461, we remanded the case for a hearing on the merits of his ineffective assistance claim. Following a 1. K. F. contends his trial counsel was ineffective by failing to communicate
the State’s plea offer to him and the evidence it planned to present, and that had he
been informed he would have taken any recommendation for less than the five years
he was sentenced.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that his counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that counsel’s performance falls within the broad range of reasonable professional conduct. The trial court’s findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.
In the Interest of T. M., 303 Ga. App. 322, 324-325 (2) (693 SE2d 574) (2010). In the
context of the plea process, “the proper question at the prejudice step is whether [K.
F.] demonstrated that, but for counsel’s deficient performance, there is a reasonable
probability that he would have accepted the State’s plea offer.”Cleveland v. State, 285
Ga. 142, 145 (674 SE2d 289) (2009).
hearing on K. F.’s ineffectiveness claim, the juvenile court determined that K. F. failed to overcome the presumption of effective assistance of counsel.
2 A defendant “is entitled to be told that an offer to plead guilty has been made
and to be advised of the consequences of the choices confronting him. For counsel
to do otherwise amounts to less than reasonably professional assistance.” Lloyd v.
State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988). Moreover, “(p)rior to trial an
accused is entitled to rely upon his counsel to make an independent examination of
the facts, circumstances, pleadings and laws involved and then to offer his informed
opinion as to what plea should be entered.” Cleveland v. State, 285 Ga. 142, 144 (674
SE2d 289) (2009).
At the ineffective assistance hearing, K. F.’s trial counsel testified that she met
with K. F. from 10 to 12 times, with the last visit occurring the day before the trial.
She testified that she discussed the facts of his case extensively with K. F., including
the discovery as it became available, and that she was confident that K. F. understood
all of the evidence against him. Trial counsel testified that she “knew this would be
a . . . designated felony, since it would be [K.F.’s] fourth felony” and that she
explained to K. F. that he could receive a five-year sentence if adjudicated guilty, but
that she worked out a plea offer of three years which she communicated to K. F. She
testified that the first offer of three years was “early, on before the arraignment” and
she conveyed the offer to K. F. that same day. Trial counsel testified that the three-
3 year offer was later rescinded, but that on the day of K. F.’s disposition, she
convinced the State to renew the three-year offer but that K. F.’s parents thought that
it was too much time and wanted to “leave it up to the judge.” .
K.F. testified at the hearing that trial counsel visited him only twice, and never
communicated any information about the evidence that would be presented at trial,
or that the State had presented any plea offers. He testified that had he known about
an offer for less time, based on the evidence the State had, and the five-year sentence
he was facing, he would have pled guilty. Despite’s K. F. ‘s testimony otherwise, the
trial court was authorized to believe counsel’s testimony over his. Curry v. State, 238
Ga. App. 511, 522 (5) (b) (519 SE2d 269) (1999).
2. K. F. also contends that the trial court erred in sentencing him as a
designated felon. He maintains that the sentence was not warranted under OCGA §
15-11-63 because it was not in the best interest of the child, his past felony charges
were non-violent, he has a loving and supportive home, the nature and circumstances
of his current offense were not serious, and none of the victims were present when the
crimes were committed.
“‘Designated felony act’ means . . . [an] act which, if done by an adult, would
be a felony, if the child committing the act has three times previously been
4 adjudicated delinquent for acts which, if done by an adult, would have been felonies.”
OCGA § 15-11-63 (a) (2) (B) (vii). “Where a child is found to have committed a
designated felony act, the order of disposition . . . shall include a finding based on a
preponderance of the evidence as to whether . . . the child does or does not require
restrictive custody under [OCGA § 15-11-63].” OCGA § 15-11-63 (b).
To determine whether restrictive custody is warranted, the juvenile court must
consider and make written findings about these factors: (1) the needs and best interest
of the child; (2) the record and background of the child; (3) the nature and
circumstances of the offense, including whether any injury sustained by the victim
was actually inflicted by the child or another; (4) the need to protect the community;
and (5) the age and physical condition of the victim. OCGA § 15-11-63 (c); In the
Interest of J. W., 306 Ga. App. 339, 341 (3) (702 SE2d 649) (2010). The weight to be
accorded each factor, and the ultimate decision about whether restrictive custody is
warranted, is committed to the sound discretion of the juvenile court. In the Interest
of I. C., 300 Ga. App. 683, 686 (2) (a) (686 SE2d 279) (2009).
Here, the juvenile court’s commitment order reflected that the court considered
the factors in OCGA § 15-11-63, and found, among other things, that K. F. had three
prior separate felony adjudications, and that although none of the burglary victims
5 were home when K. F. committed the crimes, “the victims uniformly express[ed]
continuing ill ease in their homes.” . Additionally, the juvenile court found that K. F.
had a pistol during the commission of the crimes, had shown “no regard for anyone
but himself” and that the community needed protection from him. In the order under
the heading “The needs and best interests of the child,” the juvenile court found that
K. F. needs a more structured environment and has demonstrated that he cannot
control his actions. It further found that it was in his best interest to receive control
and assistance to prevent him from entering the adult system.
“The trial court’s written findings must afford this Court a basis for meaningful
appellate review by showing that the determination as to restrictive custody was not
arbitrary, and that the court gave due consideration to each of the required statutory
findings. The court’s findings in this case were sufficient.” In the Interest of I. C., 300
Ga. App. 683, 686 (2) (a) (686 SE2d 279) (2009).
Judgment affirmed. Adams and McFadden, JJ., concur.