My Lawyer Did't Tell Me About The Plea Offer
The Supreme Court of Georgia reversed a man’s conviction for armed robbery, aggravated assault, and burglary because the defendant received ineffective assistance of counsel. Johnson v. State, S10G0617.
In Johnson, the defendant was indicted on June 24, 2003. Johnson was offered 25 years in prison as part of a plea bargain. On July 1, 2003, a second public defender was assigned to Johnson’s case. He was told that the State offered 25 years, and Johnson wanted to go to trial. The public defender was not present during a court hearing on August 1, 2003, and a not guilty plea was entered on Johnson’s behalf. On August 4, 2003 his new public defender visited Johnson for the first time. Johnson told the public defender about two alibi witnesses. The public defender investigated the two alibi witnesses, but he could not find one and the other would not support an alibi defense. During a meeting two days before trial the public defender then told Johnson that he could not present the alibi defense, and, that due to his prior record Johnson would face a mandatory Life without parole sentence if he was convicted of the armed robbery. This was the first time Johnson was advised of this mandatory sentence. Johnson asked his public defender to ask the prosecutor for 20 years to serve 10. The public defender called the prosecutor who rejected Johnson’s plea offer. Five minutes later the public defender called the prosecutor and said that Johnson wanted to accept the original plea offer of 25 years. The prosecutor said the original offer was no longer available because the district attorney’s office had a policy that plea offer’s are held open only to the docket call (August 1, 2003 for Johnson). Once a defendant pleads not guilty, the plea offer is considered rejected. Johnson went to trial, was convicted and sentenced to life without parole. Johnson argued on appeal that his public defender was ineffective in failing to advise him that if he rejected the State’s offer he faced a mandatory sentence of life without the possibility of parole. The Court of Appeals upheld Johnson’s conviction finding that there was no evidence that Johnson would have accepted the original plea offer. The Supreme Court granted certioraroi (agreed to hear the case). The Supreme Court noted prior cases holding that an attorney gives “less than reasonably professional assistance” if he has not informed his client “that an offer to plead guilty has been made and . . . advised [his client] of the consequences of the choices confronting him.” Lloyd v. State, 258 Ga. 645 (1988). Also, prior to trial a defendant is entitled to rely upon his lawyer making an independent investigation of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. “The plea bargaining process is a critical stage of criminal proceedings where an attorney’s involvement is crucial. . . . “Indeed, with plea bargaining the norm and trial the exception, for most criminal defendants (the plea process) is the critical stage of their prosecution.” [Cit.] (Emphasis in original.) Cleveland v. State, 258 Ga. 142, 144 (674 SE2d 289) (2009). The Supreme Court found that Johnson was not reasonably represented by any attorney during the plea bargaining process. No one from the public defender’s office went to the prosecutor to negotiate a plea deal prior to the entry of a not guilty plea at the docket call on August 1, 2003. Further, before the plea offer of 25 years expired, the public defender did not make any independent examination of the facts or try to contact the alleged alibi witnesses. The public defender also failed to inform Johnson before Johnson entered a not guilty plea and rejected the State’s offer that he would then face a mandatory sentence of life without parole. The failure to inform Johnson of the August 1, 2003 expiration of the plea offer effectively deprived him of a ‘last chance’ opportunity to avoid a potential sentence of much greater length than the term of the plea offer. The Supreme Court stated, ““‘If the accused’s choice on the question of a guilty plea is to be an informed one, he must act with full awareness of his alternatives. . . .’” Lloyd v. State, supra at 647 (2) (a). Therefore, without knowledge of the alternative of a mandatory life sentence, if convicted at trial and without knowledge of the other information described above, Johnson “could not make an informed decision about whether to accept or reject the State’s plea offer [and thus he] has fulfilled his burden of showing that his ‘counsel’s representation fell below an objective standard of reasonableness.’ [Cit.]” Cleveland v. State, 290 Ga. App. 835, 839 (2) (660 SE2d 777) (2008) (holding that trial counsel was deficient in failing to inform his client of all the evidence in the State’s case against him), aff’d, 285 Ga., supra.” Although the Supreme Court found that Johnson’s lawyer’s performance was deficient, Johnson also had to show that he was prejudiced by the ineffective assistance of counsel. In order to establish prejudice in the plea bargain process, a defendant must show that if it was not for the ineffectiveness of his lawyer there is a reasonable probability that the defendant would have accepted the State’s plea offer. There must be some showing that the defendant was inclined to accept the offer made by the State. The Georgia Supreme Court found that Johnson was able to satisfy the prejudice component as well. The Court pointed out that “once Johnson was advised that he faced a mandatory life sentence if convicted at trial and that his alibi witnesses would not testify in his defense, he immediately asked his counsel to begin negotiating for a plea offer by attempting to see if the State would agree to a lower sentence.”“Moreover, upon his counteroffer being summarily rejected, Johnson, within five minutes, tried to accept the original offer but was informed that the original offer had expired. Therefore, the record shows a reasonable probability that Johnson would have accepted the State’s plea offer in the absence of his counsel’s deficiencies due to the fact that Johnson actually did accept the plea offer once he was advised by his counsel and informed of all the relevant information.” The Supreme Court concluded that if Johnson’s public defender had investigated the case and advised Johnson of the sentence he was facing before the plea offer expired, it is clear that Johnson would have accepted the plea offer. Justice Melton wrote a dissent joined by Justice Hines stating that Johnson failed to show a reasonable probability that he would have accepted the State’s original plea offer. According to the dissent all that can be said is that “Johnson was prepared to make a counteroffer.” Since the State could withdraw their offer in response to the counteroffer, the outcome would be the same thus Johnson can’t demonstrate prejudice from his attorney’s deficient performance.
