Landrea Pruitt v. State

• Court: Court of Appeals of Georgia
• Decided: August 8, 2013
• Docket: A13A1355
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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. http://www.gaappeals.us/rules/

August 8, 2013

In the Court of Appeals of Georgia A13A1355. PRUITT v. THE STATE.

RAY, Judge.

Landrea Pruitt appeals from the denial of her motion to withdraw a non-

negotiated guilty plea, arguing that because her trial counsel rendered ineffective

assistance, the trial court’s denial was an abuse of discretion. We disagree and affirm.

On May 2, 2011, a grand jury indicted Pruitt on five counts of theft by taking

pursuant to OCGA § 16-8-2. The charges stemmed from allegations that Pruitt took

funds from related businesses for which she served as a bookkeeper and accounting

manager. Her case was tried before a jury, and on October 28, 2011, prior to closing

arguments, Pruitt entered a guilty plea on all counts, which the trial court accepted

following a hearing. The trial court sentenced Pruitt as a recidivist to twenty years,

with seven to serve in confinement and the balance to be served on probation. The trial court also ordered Pruitt to pay $31,559.61 in restitution and a $1,000 fine. On

November 21, 2011, Pruitt timely moved to withdraw her guilty plea, alleging, inter

alia, that she received ineffective assistance of counsel. Following a hearing, the trial

court denied that motion. Pruitt appeals.1

1. As an initial matter, we note that Pruitt’s brief fails to comply with our rules.

Pruitt has propounded a compound enumeration of error and, as to some issues, has

failed to provide record citations or cite to relevant legal authority.

Our requirements for appellate briefs “were created not to provide an obstacle,

but to aid parties in presenting arguments in a manner most likely to be fully and

efficiently comprehended by this Court; a party will not be granted relief should we

err in deciphering a brief which fails to adhere to the required form.” (Footnote

omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1)

(618 SE2d 621) (2005). Pruitt further offers an array of merely conclusory statements

in support of the enumeration, which “are not the type of meaningful argument

contemplated by [Court of Appeals] Rule 25 (a) (3).” (Citation and punctuation

1 Despite the grant of one extension of time in which to file an appellate brief and a request for a second extension, the State failed to file its brief until more than two months after its deadline to do so. Therefore, we do not consider the State’s brief in our analysis.

2 omitted.) Towry v. State, 304 Ga. App. 139, 148 (2) (g), n. 7 (695 SE2d 683) (2010).

“[T]his Court will not cull the record in search of error on behalf of a party.

Accordingly, if we have missed something in the record or misconstrued an argument,

the responsibility rests with counsel.” Burrowes v. State, 296 Ga. App. 629, 631 (1)

(675 SE2d 518) (2009).

2. In her compound enumeration of error, Pruitt alleges, inter alia, that her trial

counsel was ineffective in failing to investigate and prepare for the case because trial

counsel did not pick up discovery materials until several days before trial, did not

speak to certain potential witnesses, and did not consult with Pruitt between

arraignment and trial.

“After sentence is pronounced, whether to allow the withdrawal of a guilty plea

lies within the trial court’s sound discretion, and we review the trial court’s decision

for manifest abuse of that discretion.” (Citation and punctuation omitted.) Bailey v.

State, 313 Ga. App. 824, 824-825 (723 SE2d 55) (2012). Because Pruitt’s motion was

based on an ineffective assistance of counsel claim, the trial court was required to

apply the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104

S.Ct. 2052, 80 LE2d 674) (1984) to determine whether counsel’s performance was

deficient and, if so, whether Pruitt was prejudiced by the deficiency. Bailey, supra at

3 825. “Although the State generally bears the burden of establishing the validity of a

plea on a motion to withdraw, [Pruitt] bears the burden in this case of establishing

[her] claim of ineffective assistance of counsel.” (Citation omitted.) Id. Pruitt had to

show the trial court that “there is a reasonable probability that, but for defense

counsel’s errors, [she] would not have pleaded guilty. [Pruitt] carries an even heavier

burden on appeal because the trial court’s [factual] findings on these issues will not

be disturbed absent a showing of clear error.” (Citations omitted.) McCloud v. State,

240 Ga. App. 335, 335 (1) (525 SE2d 701) (1999). This Court independently applies

the legal principles to the facts. Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347)

(2000).

At the hearing on her motion to withdraw, Pruitt relied solely on her own

testimony, and she did not present other witnesses or call trial counsel to testify. In

considering an ineffectiveness claim, there is a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance, and if trial

counsel does not testify, “it is extremely difficult to overcome this presumption.”

(Footnote omitted.) Hutto v. State, 320 Ga. App. 235, 240 (3) (739 SE2d 722) (2013).

Pruitt was represented by retained counsel when she pled guilty. When Pruitt

pled, she testified that she understood that she was giving up her rights to have a jury

4 determine her guilt or innocence, that she was admitting to the offenses in the

indictment, that she understood the maximum penalties for each count against her,

and that she understood that she would be sentenced as a recidivist. She further

testified that she had received a notice of habeas corpus rights, that she had reviewed

it with her attorney and understood her rights, that she was voluntarily pleading

guilty, and that she had not been coerced or pressured in any way.

(a) Failure to prepare for trial. Pruitt contends that trial counsel “wholly failed

to prepare and investigate” her case such that “the whole proceeding lost its character

as a confrontation between adversaries.” She argues on appeal that her lawyer did not

pick up discovery materials until a few days before trial and thus was not adequately

prepared, and that he did not review discovery with her. However, at the hearing on

her motion to withdraw her guilty plea, she testified that she was not sure when her

lawyer picked up or reviewed the discovery materials. She testified, both at trial and

at the hearing on her motion to withdraw her plea, that she had seen all documentary

evidence against her and that she saw the State’s evidence at trial.

Pruitt presented no evidence at the hearing on the motion to withdraw her plea,

nor does she make any argument on appeal, regarding the nature of the evidence she

refers to or what it would have shown. Thus, it is impossible for us to know whether

5 the evidence at issue even was presented at trial. See Fraser v. State, 283 Ga. App.

477, 484 (4) (d) (642 SE2d 129) (2007). Further, Pruitt has made no showing as to

how her counsel’s alleged failure to review the evidence until shortly before trial

either prejudiced her trial or influenced her decision to plead guilty. We are not

required to address both the deficient performance and prejudice prongs of the

ineffective assistance of counsel test if the defendant has made an insufficient

showing on either one of them, and “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant

as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). There is a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance. Id. at 689 (III) (A).

Further, the record belies Pruitt’s claim that counsel was so unprepared that the

trial lost its character as a confrontation between adversaries. Trial counsel objected

to the State’s motion in limine and cross-examined the State’s witnesses. On cross-

examination, he asked about the operation of the businesses for which Pruitt worked;

he elicited testimony showing that the company’s owner was often absent, implying

that she had authority to sign checks; he showed that the owner could not definitively

state which transactions were unauthorized; and he raised the question of whether

6 some of the records used to show that Pruitt had made unauthorized payments to

herself were faulty. He also moved, albeit unsuccessfully, for a directed verdict. Thus,

we cannot say that the trial court abused its discretion in finding counsel effective on

these grounds.

(b) Failure to speak to potential witnesses. Although Pruitt argues that trial

counsel was ineffective in failing to subpoena witnesses she had suggested, the

witnesses did not testify at the motion to withdraw the guilty plea. We note that on

appeal Pruitt makes no argument as to how the lack of their testimony prejudiced her

case.

Although trial counsel did not testify at the motion to withdraw guilty plea

hearing, during the trial itself Pruitt informed the court that there were witnesses she

had wanted to subpoena. Pruitt’s trial counsel stated that, despite using an

investigator and making calls himself, he was unable to contact the witnesses and that

Pruitt gave him new contact information at such a late date that he could not reach the

witnesses before trial. The trial court asked, “So, it’s not due to lack of trying, it’s just

due to the fact that you’re unable to locate them; is that correct?” To which counsel

replied, “Yes.” Counsel also testified that in his opinion, as a strategic matter, the

witnesses Pruitt wished to call would not have provided evidence showing she was

7 not guilty. He further said that it was his duty to “protect” her and to make a strategic

decision that it “may not be beneficial to bring people in, because sometimes the

tables can turn very ugly in a criminal case.” Rather, he explained that his strategy

was to focus on the overall financial disorganization of the company and on Pruitt’s

own testimony.

Counsel’s decision not to call the witnesses was based, in part, on strategy. See

Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012) (decision about

which defense witnesses to call is a matter of trial tactics and strategy, and whether

that decision is reasonable is a question of law, not fact). Without an affirmative

showing that evidence from these witnesses would have supported Pruitt’s defense

and that the witnesses were not called because of negligent oversight by counsel

rather than as a matter of trial strategy, “it is impossible for the defendant to show

there is a reasonable probability [that] the results of the trial would have been

different.” (Citation omitted.) Id. We discern no error.

(c) Failure to consult adequately with Pruitt. Pruitt argues on appeal that she

did not consult with her lawyer between arraignment and trial. At the the hearing on

her motion to withdraw her guilty plea, Pruitt testified that she had no in-person

meetings with counsel between the time of her arraignment and the time of trial.

8 However, the record indicates that Pruitt did talk with her counsel the week prior to

trial at a calendar call and by telephone. Further, at trial, the trial court asked Pruitt

if she had had an opportunity to consult with her attorney about whether or not to

testify, and she responded, “Yes.” She also testified that she had spoken with trial

counsel about the witnesses she wanted to call. Further, in asking the court for

lenience, trial counsel stated that he had prepared his client for a possible prison

sentence, and that he had given her “in-depth” explanations about the legalities or

illegalities of money-handling in the context of how her case would play out.

Although Pruitt clearly desired more pre-trial contact with and preparation by

her counsel, “[t]here is no magic amount of time which a counsel must spend in

preparation for trial in order to provide a client with adequate counsel.” (Citations and

punctuation omitted.) Daniels v. State, 296 Ga. App. 795, 799 (5) (a) (676 SE2d 13)

(2009). Also, Pruitt has failed to point to any evidence or defenses that could have

been presented had her counsel spent more time talking with her and preparing for the

case, and given the lack of testimony from trial counsel, we cannot conclude that the

trial court abused its discretion in denying her motion to withdraw her guilty plea on

account of ineffective assistance of counsel. See id. at 800 (5) (a).

9 3. As part of the same compound enumeration, Pruitt also argues that various

individual errors by counsel should be considered as a whole in assessing

ineffectiveness. “Georgia does not recognize the cumulative error doctrine.” (Citation

omitted.) Fraser, supra at 482 (4). Further, as Pruitt offers no citations to the record

or to authority on these particular issues, they are abandoned pursuant to Court of

Appeals Rule 25 (c) (2).

Judgment affirmed. Barnes, P. J., and Miller, J., concur.