Phyllip Becoats v. State
This text of Phyllip Becoats v. State (Phyllip Becoats v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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/
October 30, 2012
In the Court of Appeals of Georgia A12A1442. BECOATS v. THE STATE.
B RANCH, Judge.
Following a bench trial, Phyllip Jerrod Becoats was convicted of trafficking in
cocaine, possession of marijuana, and failure to maintain his lane. During the
sentencing phase of trial, the State introduced certified copies of Becoats’s four prior
felony convictions, and the trial court sentenced him as a recidivist pursuant to OCGA
§ 17-10-7. Becoats then appealed his convictions, asserting as his sole claim of error
the trial court’s denial of his motion to suppress evidence seized during a traffic stop
of his vehicle. See Becoats v. State, 301 Ga. App. 768 (688 SE2d 686) (2009). This
Court found no error and affirmed. Id.
Following remittitur of his case to the trial court, Becoats filed his first pro se
motion for modification of his sentence in M arch 2010, arguing that the lower court erred in sentencing him as a recidivist. The trial court denied this motion in April
2010. In October 2011 Becoats filed his second pro se motion for modification of his
sentence. Becoats again asserted that the court below erred in sentencing him as a
recidivist, and he also asserted, for the first time, that he had received ineffective
assistance of trial and appellate counsel. The court denied Becoats’s motion, and he
now appeals from that order. We find no error and affirm.
1. In his first two enumerations of error, Becoats asserts that he received
ineffective assistance of counsel, both at trial and on the direct appeal of his
conviction. Becoats, however, is procedurally barred from asserting his ineffective
assistance of counsel claims by way of a motion seeking a sentence modification.
It is well established that a claim for ineffective assistance of trial counsel “must
be raised at the earliest practicable moment” following a defendant’s conviction.
(Citation, punctuation and footnote omitted.) Chapman v. State, 279 Ga. App. 200,
206 (3) (630 SE2d 810) (2006). This rule requires that an ineffective assistance claim
be raised before an appeal of the defendant’s conviction, “if the opportunity to do so
is available[.]” Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). Our
Supreme Court has held that the ability to raise a claim for ineffective assistance by
way of a motion for new trial “represents such an opportunity[.]” Id. Thus, if a
2 defendant “fail[s] to seize that opportunity,” either by declining to raise the
ineffectiveness claim as part of his new trial motion or by failing entirely to file such
a motion, he is procedurally barred from “raising the issue at a later time.” (Footnote
omitted.) Id. See also Carter v. State, 275 Ga. App. 846-847 (2) (622 SE2d 60) (2005)
(a defendant “must raise the ineffectiveness of previous counsel at the first possible
stage of post-conviction review, and request an evidentiary hearing if the claim
involve[s] matters outside the record”) (citations omitted).
Additionally, a defendant cannot resuscitate his procedurally-barred claims for
ineffective assistance of trial counsel “by bootstrapping them to a claim of
ineffectiveness of appellate counsel[,]” as Becoats attempts to do here. (Punctuation
and footnote omitted.) Mullins v. State, 267 Ga. App. 393, 399 (5) (599 SE2d 340)
(2004). See also Wilson v. State, 286 Ga. 141, 145 (4) (686 SE2d 104) (2009) (“claims
of ineffective assistance of appellate counsel may not be used to camouflage issues
that should have been raised in a motion for new trial[,]” because “to allow
substantive review of such claims would be to promote serial appellate proceedings.”)
(citations and punctuation omitted). Instead, Becoats may pursue his claims for
ineffective assistance of both trial and appellate counsel only in the context of a
3 habeas corpus proceeding. Id. See also Baptiste v. State, 262 Ga. App. 71 (585 SE2d
92) (2003).
2. The trial court sentenced Becoats as a recidivist pursuant to OCGA § 17-10-7
(c), which provides in relevant part:
any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
During the sentencing phase of trial, the State introduced evidence of Becoats’s
four prior felony convictions. Three of those convictions were entered on November
16, 1999. The record shows that on that day, Becoats pled guilty in Cobb County
Superior Court to theft by receiving and possession of a firearm by a convicted felon.
That same day, the Cobb County court revoked Becoats’s probation as to a charge of
possession of cocaine, to which he had pled guilty in 1996.
Becoats argues that because they were entered on the same day, by the same
court, and resulted in identical sentences to run concurrently, these three convictions
must be viewed collectively as a single conviction for purposes of determining
4 whether he should be sentenced as a recidivist. In support of this argument, Becoats
relies on subsection (d) of the recidivist statute, which provides that “conviction of
two or more crimes charged on separate counts of one indictment or accusation, or in
two or more indictments or accusations consolidated for trial, shall be deemed to be
only one conviction.” OCGA § 17-10-7 (d). We disagree.
The record shows that each of the offenses which resulted in the convictions at
issue was committed at different times and that each was indicted separately, by
different grand juries.1 Additionally, the trial court entered separate sentencing orders
in each of the three cases. Where a defendant is charged for separate crimes, arising
out of separate incidents, and is sentenced for each crime in a separate order, those
offenses are not considered “consolidated” under OCGA § 17-10-7 (d). Baker v. State,
306 Ga. App. 99, 103 (2) (701 SE2d 572) (2010). And this is true even where, as here,
the sentences were entered on the same day and were to run concurrently. Id. (even
though defendant “entered the guilty pleas and received the orders of sentence on the
three convictions in a single day, and . . . the sentences imposed the same amount of
1 The possession of cocaine occurred in August 1995 and Becoats was indicted in November 1995. The charge of theft by receiving resulted from an incident occurring on May 6, 1999, and he was indicted on this charge in July 1999. The possession of a firearm occurred on December 10, 1998, and he was indicted on April 1, 1999.
5 time served for each conviction,” his convictions were not “‘consolidated for trial’
within the meaning of the recidivist statute”) (footnote omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Phyllip Becoats v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phyllip-becoats-v-state-gactapp-2012.