SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , 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/
February 20, 2013
In the Court of Appeals of Georgia A12A2355. FOSTER v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Larry Foster was convicted of felony theft by shoplifting, see
OCGA § 16-8-14 (b) (1) (C), and sentenced as a recidivist. The trial court denied his
motion for new trial. Foster challenges his treatment as a recidivist, but the trial court
did not err in considering, for purposes of sentencing, his conviction on a prior
offense to which he had pled guilty. He also challenges the effectiveness of his trial
counsel, but he has not shown that he was prejudiced by deficiencies in his counsel’s
performance. Accordingly, we affirm.
1. Facts.
Viewed in the light most favorable to the verdict, the evidence showed that on
November 9, 2006, Foster entered a Dollar General store carrying a bag, placed items inside his jacket and left the store without paying for those items. A store employee
witnessed Foster take the items and called the police. Shortly thereafter, law
enforcement officers apprehended Foster near the store. They found Foster’s bag,
containing the stolen merchandise, nearby. Similar transaction witnesses testified to
other occasions where Foster had entered stores, placed merchandise inside his jacket,
left without paying for the items, and then stashed the items in a bag.
2. Recidivist sentence.
The trial court sentenced Foster as a recidivist under OCGA § 17-10-7 (c), after
the state presented evidence of three prior felony convictions. Foster objected to the
admission of one of the prior convictions on the ground that it stemmed from a
constitutionally invalid guilty plea.
To support a recidivist sentence, a guilty plea must be valid under Boykin v.
Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969) . See State v. Cooper,
281 Ga. 63 (1) (636 SE2d 493) (2006). The United States Supreme Court held in
Boykin that “[s]everal federal constitutional rights are involved in a waiver that takes
place when a plea of guilty is entered in a state criminal trial.” 395 U. S. at 243. These
rights are the privilege against compulsory self-incrimination, the right to trial by
jury, and the right to confront one’s accusers. Beckworth v. State, 281 Ga. 41, 42 (635
2 SE2d 769) (2006). The record must show that a defendant entering a guilty plea was
specifically advised of the three Boykin rights. See Childs v. State, 311 Ga. App. 891,
891-892 (1) (717 SE2d 509) (2011).
(a) Foster claims that he was not specifically advised of one of the Boykin
rights – the right to a jury trial – during the plea proceeding on the prior offense. The
record of the plea proceeding in the prior case belies Foster’s claim that he was not
adequately advised of this right.
During the plea colloquy, the court first mentioned Foster’s right to jury trial
while informing him that he could withdraw his guilty plea after sentencing: “[I]f
when we’re through here I announce a sentence which is more severe than what you
bargain for then the law gives you the right if you want to at that time to withdraw
your plea of guilty, or your tender of a plea of guilty and go to trial before a jury[.]”
Later in the colloquy, Foster indicated that he understood that at any point during the
plea proceeding he could change his plea and “[h]ave a trial.” The transcript also
shows that the prosecutor referred to the right to a jury trial while informing Foster
about rights inherent in a jury trial that he would waive by pleading guilty. The
prosecutor identified those rights as the right to confront his accuser, the right to cross
examine the state’s witnesses, the right to subpoena witnesses, and the right either to
3 testify in his own behalf or to remain silent, and he stated that a guilty plea “means
that you will not have a jury trial, and there are certain rights that you can only use
if you do have a jury trial and we want to make sure you understand what you’re
going to be giving up.” Foster indicated that he understood this. The prosecutor then
asked Foster if he wanted to “waive those rights, give up those rights that you would
have if you had a jury trial, and go ahead with your plea of guilty here.” Foster replied
“[y]es.”
Foster argues that the information given him in the plea colloquy was
insufficient because the phrase “right to a jury trial” was not used, except in the
limited context of withdrawing his plea after sentencing, and he analogizes this case
to Wilson v. Kemp, 288 Ga. 779, 779-780 (727 SE2d 90) (2011), in which our
Supreme Court held that the trial court’s discussion of a defendant’s “right to remain
silent” was specifically limited to the plea hearing itself, rather than at trial, and did
not comply with the Boykin requirements. But “[n]othing in Boykin requires the use
of any precisely-defined language or ‘magic words’ during a guilty plea proceeding.”
(Citation omitted.) Brown v. State, 290 Ga. 50, 52 (2) (718 SE2d 1) (2011).
[A]s long as the trial court, in explaining the three constitutional rights an accused must waive in order to enter a valid guilty plea, makes sure
4 the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language of those three rights as set forth in Boykin[.]
(Citations and punctuation omitted.) Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92)
(2007). The court in Wilson noted that “the record in th[e] case fail[ed] to show that
any comment by the trial court, or by [the defendant’s] counsel, informed him that by
pleading guilty he would waive his privilege against compulsory self-incrimination.”
(Citation and punctuation omitted; emphasis supplied.) Wilson, 288 Ga. at 780. Here,
in contrast, the statements by the court and prosecutor during the plea colloquy, taken
as a whole, conveyed the core principle that if Foster did not enter a plea he could
have a jury trial. See Rogers v. State, 286 Ga. 55, 56 (685 SE2d 281) (2009)
(underlying purpose of Boykin – to ensure defendant’s receipt of adequate
information about his rights so that he can make an intelligent and voluntary decision
about pleading guilty – is met if language used during plea proceeding adequately
conveyed to him the core principles of the Boykin rights); Hawes, 281 Ga. at 824
(“[T]he focus, upon review, is whether the record shows that the trial court explained
or referred to the right in a manner reasonably intelligible to that defendant. To hold
otherwise would be to elevate formalistic litany of constitutional rights over the
5 substance of the dialogue between the trial court and the accused.”) (citation omitted).
See also Campos v. State, __ Ga. __ (__ SE2d __) (Case No. S12A1639, decided
Nov.
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SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , 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/
February 20, 2013
In the Court of Appeals of Georgia A12A2355. FOSTER v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Larry Foster was convicted of felony theft by shoplifting, see
OCGA § 16-8-14 (b) (1) (C), and sentenced as a recidivist. The trial court denied his
motion for new trial. Foster challenges his treatment as a recidivist, but the trial court
did not err in considering, for purposes of sentencing, his conviction on a prior
offense to which he had pled guilty. He also challenges the effectiveness of his trial
counsel, but he has not shown that he was prejudiced by deficiencies in his counsel’s
performance. Accordingly, we affirm.
1. Facts.
Viewed in the light most favorable to the verdict, the evidence showed that on
November 9, 2006, Foster entered a Dollar General store carrying a bag, placed items inside his jacket and left the store without paying for those items. A store employee
witnessed Foster take the items and called the police. Shortly thereafter, law
enforcement officers apprehended Foster near the store. They found Foster’s bag,
containing the stolen merchandise, nearby. Similar transaction witnesses testified to
other occasions where Foster had entered stores, placed merchandise inside his jacket,
left without paying for the items, and then stashed the items in a bag.
2. Recidivist sentence.
The trial court sentenced Foster as a recidivist under OCGA § 17-10-7 (c), after
the state presented evidence of three prior felony convictions. Foster objected to the
admission of one of the prior convictions on the ground that it stemmed from a
constitutionally invalid guilty plea.
To support a recidivist sentence, a guilty plea must be valid under Boykin v.
Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969) . See State v. Cooper,
281 Ga. 63 (1) (636 SE2d 493) (2006). The United States Supreme Court held in
Boykin that “[s]everal federal constitutional rights are involved in a waiver that takes
place when a plea of guilty is entered in a state criminal trial.” 395 U. S. at 243. These
rights are the privilege against compulsory self-incrimination, the right to trial by
jury, and the right to confront one’s accusers. Beckworth v. State, 281 Ga. 41, 42 (635
2 SE2d 769) (2006). The record must show that a defendant entering a guilty plea was
specifically advised of the three Boykin rights. See Childs v. State, 311 Ga. App. 891,
891-892 (1) (717 SE2d 509) (2011).
(a) Foster claims that he was not specifically advised of one of the Boykin
rights – the right to a jury trial – during the plea proceeding on the prior offense. The
record of the plea proceeding in the prior case belies Foster’s claim that he was not
adequately advised of this right.
During the plea colloquy, the court first mentioned Foster’s right to jury trial
while informing him that he could withdraw his guilty plea after sentencing: “[I]f
when we’re through here I announce a sentence which is more severe than what you
bargain for then the law gives you the right if you want to at that time to withdraw
your plea of guilty, or your tender of a plea of guilty and go to trial before a jury[.]”
Later in the colloquy, Foster indicated that he understood that at any point during the
plea proceeding he could change his plea and “[h]ave a trial.” The transcript also
shows that the prosecutor referred to the right to a jury trial while informing Foster
about rights inherent in a jury trial that he would waive by pleading guilty. The
prosecutor identified those rights as the right to confront his accuser, the right to cross
examine the state’s witnesses, the right to subpoena witnesses, and the right either to
3 testify in his own behalf or to remain silent, and he stated that a guilty plea “means
that you will not have a jury trial, and there are certain rights that you can only use
if you do have a jury trial and we want to make sure you understand what you’re
going to be giving up.” Foster indicated that he understood this. The prosecutor then
asked Foster if he wanted to “waive those rights, give up those rights that you would
have if you had a jury trial, and go ahead with your plea of guilty here.” Foster replied
“[y]es.”
Foster argues that the information given him in the plea colloquy was
insufficient because the phrase “right to a jury trial” was not used, except in the
limited context of withdrawing his plea after sentencing, and he analogizes this case
to Wilson v. Kemp, 288 Ga. 779, 779-780 (727 SE2d 90) (2011), in which our
Supreme Court held that the trial court’s discussion of a defendant’s “right to remain
silent” was specifically limited to the plea hearing itself, rather than at trial, and did
not comply with the Boykin requirements. But “[n]othing in Boykin requires the use
of any precisely-defined language or ‘magic words’ during a guilty plea proceeding.”
(Citation omitted.) Brown v. State, 290 Ga. 50, 52 (2) (718 SE2d 1) (2011).
[A]s long as the trial court, in explaining the three constitutional rights an accused must waive in order to enter a valid guilty plea, makes sure
4 the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language of those three rights as set forth in Boykin[.]
(Citations and punctuation omitted.) Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92)
(2007). The court in Wilson noted that “the record in th[e] case fail[ed] to show that
any comment by the trial court, or by [the defendant’s] counsel, informed him that by
pleading guilty he would waive his privilege against compulsory self-incrimination.”
(Citation and punctuation omitted; emphasis supplied.) Wilson, 288 Ga. at 780. Here,
in contrast, the statements by the court and prosecutor during the plea colloquy, taken
as a whole, conveyed the core principle that if Foster did not enter a plea he could
have a jury trial. See Rogers v. State, 286 Ga. 55, 56 (685 SE2d 281) (2009)
(underlying purpose of Boykin – to ensure defendant’s receipt of adequate
information about his rights so that he can make an intelligent and voluntary decision
about pleading guilty – is met if language used during plea proceeding adequately
conveyed to him the core principles of the Boykin rights); Hawes, 281 Ga. at 824
(“[T]he focus, upon review, is whether the record shows that the trial court explained
or referred to the right in a manner reasonably intelligible to that defendant. To hold
otherwise would be to elevate formalistic litany of constitutional rights over the
5 substance of the dialogue between the trial court and the accused.”) (citation omitted).
See also Campos v. State, __ Ga. __ (__ SE2d __) (Case No. S12A1639, decided
Nov. 19, 2012) (identifying, as an instance in which the plea court “explicitly
informed [the defendant] of his right to trial by jury,” the court’s statement “that a
trial had been scheduled for his case, and if he wished, his ‘case would be tried before
a jury’”).
Because the transcript of the plea proceeding in the earlier case reflects that
Foster was sufficiently informed of his right to a jury trial, the trial court in this case
was authorized to consider evidence of that prior conviction over Foster’s objection
in sentencing.
(b) Foster also claims that he was not informed of his right to counsel or to the
presumption of innocence during the plea proceeding, but he was represented by
counsel and has cited no authority supporting his position that a guilty plea is invalid
if matters other than the Boykin rights are not specifically explained. See generally
Britt v. Smith, 274 Ga. 611, 614 (556 SE2d 435) (2001) (“decisions [of the Georgia
Supreme Court] dealing with the validity of a guilty plea are generally couched in
terms of the defendant’s waiver of the three Boykin rights”) (citation omitted).
3. Ineffective assistance of counsel.
6 Foster argues that his trial counsel rendered ineffective assistance during both
the plea bargain process and at trial.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.
(Citation and punctuation omitted.) Arnold v. State, 315 Ga. App. 831, 832 (728 SE2d
342) (2012). On appeal, we “accept the trial court’s factual findings and credibility
determinations unless they are clearly erroneous, but . . . independently apply the
legal principles to the facts.” (Citation omitted.) Johnson v. State, 290 Ga. 382, 383
(2) (721 SE2d 851) (2012). As detailed below, Foster has not shown that his trial
counsel performed deficiently during the plea bargaining process, or that counsel’s
cross-examination of an eyewitness at trial was deficient, and he has not shown that
he was prejudiced by counsel’s decision not to call rebuttal witnesses at trial.
(a) Counsel’s effectiveness during plea bargaining.
Foster argues that his trial counsel was deficient in failing to adequately advise
him about the state’s plea offer or the implications of being sentenced as a recidivist.
7 “In the context of the plea bargain process, a defendant may prove that trial counsel
was ineffective by showing that counsel failed to inform him that an offer to plead
guilty had been made and failed to advise him of the consequences of the choices
confronting him.” (Citation and punctuation omitted.) Arnold, 315 Ga. App. at 832.
At the hearing on his motion for new trial, Foster testified that trial counsel
informed him that the state was willing to make a plea offer that involved
incarceration. Foster testified that he told his counsel he would not accept an offer
that involved confinement, but also that he and trial counsel agreed to defer a decision
on the offer until after they had a chance to meet to review the case. Foster testified
that they never met to review the case. He further testified that trial counsel never
explained to him the implications of a recidivist sentence. Finally, he testified that,
had he understood those implications, he would have accepted the state’s plea offer.
Trial counsel’s hearing testimony conflicted with Foster’s testimony in several
pertinent respects. Counsel testified that he conveyed to Foster the state’s plea offer
but that Foster immediately rejected the offer and refused to hear any details
regarding it because it involved confinement. Counsel also testified that he met with
Foster two or three times to discuss the facts of the case. And he testified that, after
8 the state served notice of its intent to seek recidivist punishment, he explained the
implications of that punishment to Foster.
It was for the trial court to determine the credibility of Foster and his trial
counsel to resolve the factual dispute about the advice trial counsel gave Foster on the
choices confronting him. See Johnson, 290 Ga. at 384 (2) (a); Arnold, 315 Ga. App.
at 832-833. The hearing evidence authorized the trial court to find that trial counsel
did not perform deficiently in connection with the plea bargain process.
(b) Counsel’s effectiveness at trial.
Foster argues that the testimony of an eyewitness who saw him take the
merchandise from the store conflicted with information in the police report on the
incident. He argues that his trial counsel was ineffective in failing either to cross
examine this witness on the inconsistencies or to call as rebuttal witnesses the police
officer who wrote the report or a store manager who also witnessed the incident. We
disagree.
At the hearing on the motion for new trial, trial counsel testified – and Foster’s
post-conviction counsel conceded – that some of the alleged inconsistencies between
the eyewitness’s testimony and the police report were not material. For that reason,
and because the eyewitness did not write the police report, trial counsel testified that
9 he believed he would not gain much from trying to impeach the eyewitness on these
points. He also testified that he felt he could cast doubt on the witness’s memory
during closing argument and did not want to “give the [s]tate the chance to
rehabilitate the witness.” Finally, trial counsel testified that he believed it would be
more effective to question the police officer who wrote the report, whom he thought
the state would call because the officer was the person who arrested Foster and was
on the state’s witness list. When trial counsel realized during trial that the state was
not going to call this witness, it was too late for him to begin the subpoena process.
Given this evidence, Foster has not shown that his trial counsel performed
deficiently in cross examining the eyewitness. There is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002). Furthermore, “[t]he
scope of cross-examination is grounded in trial tactics and strategy, and will rarely
constitute ineffective assistance of counsel.” (Citation omitted.) Simpson v. State, 277
Ga. 356, 359 (4) (b) (589 SE2d 90) (2003). See also Payne v. State, 289 Ga. 691, 697
(3) (b) (715 SE2d 104) (2011) (“Decisions about what questions to ask on cross-
examination are quintessential trial strategy.”) (citation omitted). Trial counsel
10 offered a reasonable explanation for his decision not to cross examine the witness on
the contents of the police report.
In addition, even if we assume arguendo that trial counsel should have called
as rebuttal witnesses either the police officer who wrote the report (rather than
depending upon the state to do so) or the store manager to provide additional
testimony about what occurred in the store, Foster “has failed to demonstrate how
counsel’s failure to call [the rebuttal] witness[es] . . . would have affected the
outcome of his case.” Dunn v. State, 291 Ga. 551, 554 (4) (d) (732 SE2d 524) (2012).
He did not present any evidence at the motion for new trial hearing regarding what
either the officer or the store manager would have said, had those witnesses testified
at trial. “Without a proffer of evidence that would have been admissible and favorable
to his case, [Foster] has failed to demonstrate a reasonable probability that the
testimony of these witnesses would have affected the outcome at trial.” Thomas v.
State, 282 Ga. 894, 896 (2) (a) (655 SE2d 599) (2008).
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.