author: Boggs, Judge.

text:
    A16A0550.
    THE STATE v. ENICH.
    (788 SE2d 803)
   Boggs, Judge.

The State appeals from the trial court’s order granting Eugene Enich’s motion for new trial on the ground that Enich should have been allowed to impeach a prosecution witness with evidence of her pending first offender probation. The State contends that a new trial should not have been granted because the evidence was properly excluded at trial, and that in any event the error was harmless. We find that the trial court did not abuse its discretion in determining that the excluded evidence should have been admitted to show the witness’ bias, and that the underlying error was not harmless. We therefore affirm the grant of a new trial.

Enich was tried and convicted of two counts of rape and two counts of child molestation. The evidence presented at trial showed that, in 2009, Enich, who is mentally challenged, moved in with the victim and the victim’s mother, who was designated the payee on Enich’s Social Security disability benefits. She received a lump sum of approximately $2,000 and monthly payments of between $400 and $700 thereafter. At some point, Enich’s case was reevaluated and the payments stopped. A witness testified that Enich and the mother had a falling out in early 2010, and Enich called the witness to come pick him up; the mother called the witness and told her that Enich had accused her of “getting his assistance.” A few days later, after Enich returned to the mother’s house, he was charged with rape and child molestation after the mother called the police and told them Enich had tried to rape her daughter. The mother acknowledged that she and Enich had quarreled regarding her using some of his benefits to purchase her car, and she acknowledged that she was having financial difficulties, although she denied that “it cause[d] issues around the house.”

During the trial, the trial court refused to allow Enich to introduce evidence that the victim’s mother was serving a first offender probation for forgery and theft by receiving. The trial court acknowledged that Enich was entitled to introduce evidence of an ulterior motive or that the witness was attempting to “punish[ ]” Enich by causing her daughter to accuse him, but ruled that he could not use her first offender status to do so.

Enich made a proffer at trial that in late 2009, the mother was in significant financial difficulties, and allegedly possessed stolen property, passed forged checks, and applied for credit in the name of others in September, October, and November of 2009. On May 19, 2011, the mother was charged by accusation with two counts of forgery in the first degree, identity fraud, and theft by receiving stolen property arising out of the 2009 incidents. On August 5, 2011, she pleaded guilty to one count of forgery and theft by receiving, and on August 30, 2011, she was sentenced to five years of probation under the First Offender Act. Enich’s trial took place in mid-October 2011.

Enich’s amended motion for new trial was heard after the reassignment of the case to a successor judge. At the hearing on the motion, the successor judge received evidence regarding Enich’s competence and heard testimony from Enich regarding the handling of his case. Enich’s trial counsel also testified at length with regard to their preparations for trial and their theory of the case. They believed that when Enich accused the witness of stealing his benefits, she immediately pursued the charges against him in order to divert the State’s attention from Enich’s accusation and to avoid possible revocation of her first offender status for committing an additional theft “because rape is a louder word than theft.”

In its order granting a new trial, the trial court concluded that Enich should have been allowed to present evidence of the mother’s pending first offender sentence, because it showed bias in that she had a motive “to punish [the] accused or eliminate his ability to cause [her] trouble in the future” by inducing her child to accuse him. The court reasoned that if the jury had been made aware of the mother’s criminal conduct “which involved misappropriation of the funds of others” it could have created a reasonable doubt as to Enich’s guilt.

1. We first consider the appropriate standard of review. “[T]he first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal.” (Citation and punctuation omitted.) O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009).

Where, as here, an appeal from the grant or denial of a motion for a new trial involves a mixed question of law and fact, we employ two different standards of review. We review de novo the trial court’s decision as to any questions of law, while applying the clearly erroneous standard of review to any factual findings made by that court. In Georgia, it is well-settled that the “clearly erroneous” standard for reviewing findings of fact is equivalent to the highly deferential “any evidence” test. Thus, we will uphold the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations.

(Citations and punctuation omitted.) Wedel v. State, 328 Ga. App. 28 (761 SE2d 454) (2014) (right of defendant to be present). Compare State v. Oliver, 326 Ga. App. 759, 761-762 (2) (755 SE2d 293) (2014) (When substitute trial judge treats evidentiary question as “purely legal issue, and he did not receive any evidence or make any findings of fact,” de novo standard applies.). Here, the successor judge heard testimony from trial counsel and from Enich himself and made findings of fact. We therefore apply the dual standard of review as outlined in Wedel.

2. With this standard in mind, we turn to the issue presented here.

The successful completion of probation as a first offender shall not be considered a criminal conviction and cannot be used to impeach a witness on general credibility grounds. Because first offender status is not considered an adjudication of guilt, a witness also may not be impeached on general credibility grounds with a first offender sentence that is currently being served. When the impeachment is to show bias, however, we have previously held that the Confrontation Clause of the Sixth Amendment permits a defendant in a criminal case to cross-examine witnesses about their first offender status. The Sixth Amendment right of confrontation is not absolute, and trial courts retain broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion, repetition, or irrelevant evidence.

(Citations and punctuation omitted.) Sanders v. State, 290 Ga. 445, 446 (2) (721 SE2d 834) (2012). See also Melson v. State, 263 Ga. App. 647, 648 (2) (588 SE2d 822) (2003).

By means of such cross-examination, the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State. Whether the witness is testifying pursuant to a deal with the State relating to the pending charges is not crucial to the right to conduct such cross-examination. Rather, the defendant is entitled to show by cross-examination that the witness may be shading his testimony in an effort to curry favor from the State. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the [Sjtate nevertheless may cloud perception.

(Citations and punctuation omitted.) Scott v. State, 242 Ga. App. 850, 851-852 (527 SE2d 210) (1999) (first offender probation), citing Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982) (pending criminal charges). “While evidence about the plea was inadmissible for impeachment purposes, it was admissible to show potential bias in favor of the [Sjtate while the victim was still on probation under that plea.” (Citation and punctuation omitted.) Christopher v. State, 314 Ga. App. 809, 814 (4) (726 SE2d 411) (2012) (physical precedent only). And when a trial court “cut[sj off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination” it is “an abuse of discretion and prejudicial error.” (Citations and punctuation omitted.) Hines, supra, 249 Ga. at 260 (2).

We note that, in the context of an unsuccessful claim of ineffective assistance of counsel, we have suggested that potential impeachment for bias is limited to cases in which “the witness may have received special, first offender treatment in exchange for testimony favorable to the State.” Crapps v. State, 329 Ga. App. 820, 829 (3) (c) (766 SE2d 178) (2014). But this statement was dicta, because in Crapps we concluded that any attempt to impeach the witness would have been merely on general credibility grounds, not to show bias, prejudice, or ulterior motive, and that counsel was not ineffective in failing to proffer such inadmissible evidence. Id. In so concluding, we cited Jackson v. State, 316 Ga. App. 588, 593 (4) (730 SE2d 69) (2012), in which we also found that the trial court correctly excluded evidence of a witness’ first offender plea because appellant had only attempted to impeach on general credibility grounds.

Moreover, a trial court’s denial of a motion for new trial on the ground of ineffective assistance, as in Crapps, supra, “willbe affirmed unless clearly erroneous,” (citations and punctuation omitted), Ansley v. State, 325 Ga. App. 226, 234 (4) (750 SE2d 484) (2013), and the same deferential standard applies to the trial court’s factual findings with respect to the admission of evidence of first offender probation. For example, in Hall v. State, 335 Ga. App. 895, 897 (1) (783 SE2d 400) (2016), the trial court denied Hall’s motion for new trial after the State was allowed to cross-examine a defense witness for bias by introducing evidence of her pending first offender probation. This witness’ testimony was not favorable to the State, and the witness did not testify in an attempt to receive special, “first offender treatment” in her pending case or to ingratiate herself with the State. Id. at 896. We concluded, however, that the trial court acted within its discretion in allowing the State to show that the witness was biased in favor of Hall because he “had previously attempted to shield her in an unrelated criminal matter,” citing former OCGA § 24-9-68 (“The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury”) and Melson, supra, 335 Ga. App. at 896-897 (1), citing 263 Ga. at 647-648 (2).

Here, the earlier theft-related offenses to which the mother pled guilty were committed before the time of her quarrel with Enich and his accusation that she had misappropriated his benefits. Shortly thereafter, the mother initiated the charges against Enich. Moreover, she pled guilty to two of the 2009 offenses and received first offender probation immediately before Enich’s trial. This evidence provides some support for the trial court’s conclusion that the excluded first offender status of the mother could have demonstrated bias on her part. As the trial court observed, the accusation could have been motivated by a desire to punish Enich, or to “eliminate his ability to cause [the witness] trouble in the future” with a charge of theft that could affect the mother’s very recent first offender probation on theft-related charges.

Decided July 5, 2016.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellant.

Nor can we agree with the State that evidence of Enich’s guilt was overwhelming.

Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. The burden rests with the prosecution in making this showing. The fact that there was other sufficient evidence to convict does not make the error harmless; rather, the test is whether the evidence may have influenced the jury’s verdict.

(Citations and punctuation omitted.) Mangum v. State, 274 Ga. 573, 577 (2) (555 SE2d 451) (2001). A physician who examined the victim testified that he found no physical evidence, and acknowledged that “the findings don’t tell us one way or the other.” Testimony was presented that the victim recanted her accusation and gave inconsistent statements regarding when the incidents occurred. While Enich made admissions to police in a third interview after initially denying the allegations, those admissions were disputed because of Enich’s mental limitations and the alleged repeated, aggressive questioning by police. To the extent that the State contends the error was harmless because Enich was allowed to introduce evidence of the witness’ financial difficulties, such evidence is not the equivalent of testimony that a witness repeatedly resorted to criminal conduct to alleviate those difficulties. The State has therefore failed to show that the trial court’s refusal to allow any cross-examination with regard to the mother’s first offender probationary status was harmless beyond a reasonable doubt.

Under the applicable standard of review, we must therefore affirm the conclusion of the trial court that a new trial is required.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

Earle J. Duncan III, for appellee.

       Evidence was introduced from a testing psychologist that his “full scale IQ” was 64. The witness described Enich as “mildly mentally challenged,” with a mental age of between 11 and 14 years.

       Enich’s trial counsel testified that they sought a competency hearing and Enich was found competent to stand trial for the charges. Evidence regarding Enich’s competence was excluded at trial.

       The State’s brief did not include a statement of the applicable standard of review, as required by Court of Appe als Rule 25 (a) (3).

       Such a holding would conflict with our Supreme Court’s observation in Hines, supra, that “[wjhether or not such a deal existed is not crucial. [Cit.]” 249 Ga. at 260 (2).

       In Jackson, the witness had successfully completed his probation and had been discharged without an adjudication of guilt before he testified. 316 Ga. App. at 593 (4). Similarly, in Redding v. State, 296 Ga. 471, 474 (3) (769 SE2d 67) (2015), cited by the State, no evidence was offered to show that the prosecution witness actually was on probation at the time of trial, nor to show “any connection between the witness’s purported first offender status and his motivation to give testimony favorable to the State.” (Citation and punctuation omitted.) Id.


source: Caselaw Access Project

license: Public Domain

text:
    A16A0670.
    BELL v. THE STATE.
    (788 SE2d 808)
   Boggs, Judge.

Michael Dwayne Bell was indicted on four counts of selling cocaine, four counts of possession of cocaine with intent to distribute near a public park, two counts of possession of cocaine with intent to distribute near a public school, two counts of possession of cocaine with intent to distribute near public housing, and obstruction of an officer. On April 9, 2012, while represented by counsel, Bell pled guilty to four counts of selling cocaine and one count of possession with intent to distribute and was sentenced to 40 years with 25 to serve.

It does not appear from the record that Bell ever sought a direct appeal following his guilty plea. Nearly three years later, in February 2015, Bell, acting pro se, filed a “Request for Final Disposition and Guilty Plea Transcript” in which he offered to pay for the documents, and, approximately one month later, a “Motion for Discovery, Court Records, and Transcripts at State Expense.” The trial court denied his motion, and he appeals.

“While an indigent is entitled to a copy of his trial transcript for a direct appeal of his conviction, such is not the case in collateral post-conviction proceedings.” (Citations and punctuation omitted.) Orr v. Couch, 244 Ga. 374 (260 SE2d 82) (1979) (records of guilty plea sought for habeas corpus proceeding). However, a petitioner may obtain such records upon a showing of necessity or justification, via an affidavit setting forth certain facts:

The affidavit should set out the particular reasons why the transcript is necessary, and should include a statement that the petitioner or his attorney have never previously been supplied a copy of his transcript and record, and that it is not otherwise available to him. A copy of the pending or proposed habeas petition should be attached. Similarly, the clerk may certify that a copy of the transcript has previously been provided the defendant or his attorney From this, the trial court can make appropriate findings of fact and conclusions of law in determining whether the prisoner has shown some justification or necessity for a copy of his trial transcript and record.

(Citations and footnote omitted; emphasis supplied.) Mydell v. Clerk, Superior Court of Chatham County, 241 Ga. 24, 25 (243 SE2d 72) (1978). However, the Supreme Court did not vacate and remand for further proceedings because it took judicial notice of the record in Mydell’s previous direct appeal, in which the trial transcript was specifically ordered supplied to him or his attorney, and affirmed on that basis. Id. at 25-26.

Bell’s affidavit states that he needs “discovery, court documents, and transcripts in order to adequately file a habeas petition and/or a motion for out of time appeal to challenge my conviction.” He does not aver that neither he nor his counsel have never been supplied a copy of his transcript and record; rather, he states that he has attempted to contact his former trial attorney to obtain his file without success. He also states that he intends to file a habeas corpus petition. Bell attached a proposed petition to his affidavit, stating that he is filing it “with a general ground, but will amend upon receipt of the documents that are now being sought.” The petition alleges that the trial court failed to ensure that Bell’s guilty plea was knowing, voluntary, and intelligent, but provides no details.

Here, the trial court failed to “make appropriate findings of fact and conclusions of law in determining whether the prisoner has shown some justification or necessity for a copy of his trial transcript and record” as required by Mydell. 241 Ga. at 25. In making such findings, the trial court may consider whether the affidavit facially fulfills the Mydell requirements and should determine whether Bell has shown justification or necessity The State’s argument in its brief that Bell has failed to make the necessary showing is for the trial court to address in the first instance. We therefore vacate the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Decided July 5, 2016.

Michael D. Bell, pro se.

Denise D. Fachini, District Attorney, Bradford L. Rigby, Assistant District Attorney, for appellee.

Judgment vacated and case remanded.

Barnes, P. J., and Rick-man, J., concur.

       The State requested and the trial court entered a nolle prosequi as to the remaining charges.

       Approximately four months later, Bell filed a pauper’s affidavit and request to proceed in forma pauperis for purposes of this appeal, which was initially denied by the trial court but later granted after Bell filed a more detailed affidavit. He also filed a notice of appeal from the initial denial.

       In Mydell, the prisoner asserted that a habeas action was pending, 241 Ga. at 24, rather than merely proposed as in the case before us.

       The decisions cited by the State in its brief do not address the specific requirements of Mydell, other than to note that a showing of necessity or justification must be made. See, e.g., Huddleston v. Clerk of Superior Court, Carroll County, 240 Ga. 52 (239 SE2d 365) (1977).

       We note our concern that too lenient an interpretation of the affidavit requirements of Mydell could open the floodgates for petitions in which every potential litigant, with or without a colorable claim, could demand “a free transcript just so the prisoner may have it.” 241 Ga. at 24.


author: BARNES, Presiding Judge.

text:
    A16A0660.
    COLEMAN v. THE STATE.
    (788 SE2d 826)
   BARNES, Presiding Judge.

Walter Coleman appeals from the denial of his motion to withdraw a nonnegotiated guilty plea, arguing that the trial court’s denial was a manifest abuse of discretion. We disagree and affirm.

Coleman pled guilty to influencing a witness and was sentenced to the maximum sentence of ten years with the possibility of parole. During three plea hearings on the same day, Coleman kept changing his mind as to whether or not he should enter a guilty plea before he finally entered his plea and was sentenced.

On March 3, 2015, Coleman’s case was called for trial, and Coleman indicated that he did not want to proceed to a jury trial but would rather enter a guilty plea. The trial court asked Coleman if he had a full opportunity to discuss the case with his counsel, if he was satisfied with counsel’s services, and if he understood the constitutional rights he would be waiving by entering a guilty plea. Coleman answered in the affirmative, and the trial court then informed him that the maximum penalty could be up to ten years in prison.

The State proffered a factual basis for the plea, stating that on October 19, 2013, Coleman’s associate assaulted a man at a convenience store. The responding police officers observed Coleman “yelling at the victim and threatening him not to reveal the identity of [the associate] who had made the assault against him.” The trial court then accepted the guilty plea, finding that it was freely and voluntarily made and supported by a factual basis. The State recommended the maximum ten-year sentence because of Coleman’s multiple prior convictions.

Based on an earlier negotiated offer of three years of probation, the potential ten-year sentence and the introduction of the prior convictions, Coleman’s trial counsel informed the trial court that he would recommend that Coleman withdraw his plea. The trial court responded that once it accepted Coleman’s nonnegotiated plea, Coleman “no longer ha[d] an absolute right to withdraw his plea,” and that the ten year sentence was indicated based on Coleman’s five prior felony convictions, about which the State had sent a notice of evidence to be used in aggravation of sentence. Only four of the five prior convictions were entered with the assistance of counsel.

When asked if Coleman had been advised of the notice of evidence to be used in aggravation of sentence and the consequences that could flow from it, Coleman’s trial counsel admitted that he had had trouble contacting Coleman, so Coleman may not have been aware of the notice or the mandatory sentence that would result from entering a guilty plea to another felony. The trial court allowed Coleman the opportunity to speak with his attorney to determine if he wanted to stand on the plea or not, and told him if the State withdrew the notice of evidence in aggravation of sentence, he would sentence Coleman to ten years with three to serve in custody and the balance to serve on probation. Coleman decided to withdraw his plea and to proceed with a trial.

During the second colloquy half an hour later, Coleman told the trial court that he was unsatisfied with his trial counsel, stating that there were “a lot of things I wanted him to do, but due to the circumstances, I want to move forward with the case.” Coleman indicated that he wanted to enter a plea of guilty The trial court again went over the constitutional rights Coleman would waive if he entered a guilty plea. But when the trial court then asked Coleman, “How do you plead?,” Coleman responded, “Not guilty,” and said he wanted to go to trial. The parties then proceeded to select a jury.

During the third colloquy, after the jury had been selected and court resumed after lunch, Coleman told the trial court that he had again decided to enter a guilty plea. For a third time, the trial court reviewed the constitutional rights Coleman would waive by pleading guilty. The trial court then accepted Coleman’s guilty plea as intelligently and voluntarily entered. The State decided to present only two of the five prior convictions it had listed in its notice of evidence to be used in aggravation of sentence so that Coleman could possibly be paroled under OCGA § 17-10-7 (a). The trial court then sentenced Coleman to ten years under that Code section.

Nine days later, on March 12, 2015, Coleman moved to withdraw his guilty plea, alleging among other things that his counsel had been ineffective. Following a hearing during which Coleman was represented by new counsel and his trial counsel did not appear, the trial court denied the motion. Coleman filed a timely appeal.

1. Coleman contends that the trial court erred by denying his motion to withdraw his guilty plea because his trial counsel was ineffective. We disagree.

“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.” Pruitt, 323 Ga. App. at 690 (2). Coleman alleged his trial counsel was ineffective because he was unprepared, unreachable, and did not fully explain to Coleman the nature of the guilty plea and maximum sentence.

Because [Coleman’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 SCt 2052, 80 LE2d 674) (1984), to determine whether counsel’s performance was deficient, and, if so, whether [Coleman] was prejudiced by the deficiency

Pruitt, 323 Ga. App. at 690 (2). “If the defendant is unable to satisfy either the deficiency or prejudice prong of the test, his ineffective assistance claim fails.” (Citations and punctuation omitted.) Taylor v. State, 304 Ga. App. 878, 881 (698 SE2d 384) (2010). See also Wright v. State, 298 Ga. 124, 125 (2) (779 SE2d 660) (2015) (defendant who seeks to withdraw guilty plea must show both deficient performance and a reasonable probability that, but for counsel’s errors, defendant would have insisted on trial). When this court reviews a trial court’s denial of a motion to withdraw a guilty plea, “the voluntariness of the plea depends upon whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” (Citation and punctuation omitted.) Alexander v. State, 297 Ga. 59, 61 (772 SE2d 655) (2015).

Under the first prong of the Strickland test, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and “without trial counsel’s testimony, his actions are presumed strategic.” Freeman v. State, 282 Ga. App. 185, 187 (2) (638 SE2d 358) (2006); Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011). Coleman asserts that his trial counsel’s performance was deficient because counsel did not adequately prepare for the trial, failed to communicate with Coleman, and failed to inform him of any similar transaction and recidivism evidence.

However, during the initial plea colloquy, Coleman’s trial counsel stated that he tried multiple times to contact Coleman but was unable to reach him. Trial counsel said that he had called and left messages for Coleman but had “never received any response in my communications from him ... and I ha[d] no way of verifying whether or not he got the communication.” Additionally, the record reflects throughout the three colloquies that the trial court gave Coleman the opportunity to consult with his trial counsel before deciding to enter his plea. Moreover, Coleman also made several conflicting statements at the hearing on his motion to withdraw his guilty plea, first telling the trial court that he had never talked to his trial counsel, but then conceding that the trial counsel had represented him in two prior court appearances. Coleman also testified that the trial counsel would call his uncle, who would then pass along the information to Coleman.

Regarding Coleman’s contention that trial counsel was deficient for failing to adequately inform him about the State’s use of the prior convictions in aggravation of his sentence, at the hearing on the motion to withdraw guilty plea, the trial court informed Coleman that it had not considered any prior convictions in sentencing because there was no pre-trial determination as to their admissibility. Thus, trial counsel was not deficient in this regard.

In its order denying Coleman’s motion to withdraw his guilty plea, the trial court found that Coleman’s “sworn testimony at the time of the guilty plea was that he had a full opportunity to talk with his lawyer about his case, and that he told his lawyer everything he knew to tell him about the facts of the case.” The court then held that Coleman’s plea “was entered into knowingly, intelligently, and voluntarily . . . with a full understanding of what the plea connoted and of its consequences.”

“As the final arbiter of the facts, the trial court was authorized to reject [Coleman’s] self-serving testimony during the hearing on his motion to withdraw the plea and find that he entered it knowingly and voluntarily.” Young v. State, 267 Ga. App. 91, 92 (598 SE2d 840) (2004). Further, Coleman has not described any evidence or defenses that could have been presented at trial if his plea counsel had spent more time with him. Pruitt, 323 Ga. App. at 693 (2) (c).

Credibility determinations are within the purview of the trial court and the court’s factual findings will not be disturbed unless clearly erroneous. Despite appellant’s stated motivation [for pleading guilty instead of going to trial], he fails to demonstrate coercion or that his decision to enter the plea was not voluntarily made.

(Citations omitted.) McGuyton v. State, 298 Ga. 351, 355 (1) (b) (782 SE2d 21) (2016).

Because Coleman failed to meet his burden of showing that his trial counsel’s performance was deficient, this Court need not address the prejudice prong. Horne v. State, 333 Ga. App. 353, 355 (1) (773 SE2d 467) (2015). Accordingly, the trial court did not abuse its discretion when it denied Coleman’s motion to withdraw his guilty plea based on an ineffective assistance of counsel claim. See Gresham v. State, 300 Ga. App. 158, 163 (684 SE2d 336) (2009) (affirming trial court’s denial of motion to withdraw guilty plea based on assertion plea counsel did not spend enough time on the case).

2. Next, Coleman contends that the trial court erred in denying him a full hearing on his ineffectiveness claim. He argues that to meet the first prong of Strickland, his trial attorney had to be present and testify at the motion to withdraw guilty plea hearing. Coleman asserts that the trial court should have stayed the motion to withdraw guilty plea hearing because his trial attorney’s absence denied him the right to a full due process hearing and he “would not have ple[ ]d guilty if he knew there was a risk of getting any prison time without parole.”

Coleman was not sentenced to a term without the possibility of parole. He was sentenced under OCGA § 17-10-7 (a), which does not prevent the Board of Pardons and Paroles from granting Coleman parole at some point during his sentence. Further, during the plea hearing, the trial court informed Coleman that it was not the court’s “intention that [he] not be eligible for parole,” and later, when Coleman asked if he was eligible for parole, the trial court said that parole “will be up to the Parole Board.” The trial court also gave Coleman and his trial counsel ample time to discuss the consequences of the State’s notice of evidence to be used in aggravation of sentence. The State withdrew all but two of the four counseled felony convictions included in its notice of evidence to be used in aggravation of sentence, specifically so that Coleman could be sentenced as a recidivist under OCGA § 17-10-7 (a) and receive a split sentence, with some portion to be served on probation. If the State had insisted on presenting all four convictions, OCGA § 17-10-7 (c) would have required the court to sentence him to ten years without the possibility of parole.

Finally, during the first plea colloquy, after the trial court accepted Coleman’s guilty plea and the State recommended ten years to serve, Coleman expressed surprise that the recommended sentence of ten years to serve without parole was much higher than he thought it would be. His trial counsel told the trial court that Coleman had not been fully aware of the notice of evidence to be used in aggravation of sentence until moments before, and Coleman told the court that he had entered his plea expecting the State to recommend the three years probation it had originally offered. The trial court explained the mandatory minimum sentence it would be constrained to give Coleman based on the four certified felony convictions the State had introduced, which was ten years to serve without the possibility of parole. Coleman indicated that he understood the explanation and that he did not have any further questions. After the explanation, the trial court allowed Coleman to withdraw his initial guilty plea and gave him the opportunity to discuss his case further with his trial counsel. When Coleman returned to the court, the trial court asked if his trial counsel had “explained to [him] what the statute says and what it means.” Coleman responded that he understood and wanted to go to trial.

After the jury was struck, when Coleman indicated again that he wanted to plead guilty, the trial court told him that it would be a blind plea, that there would not “be any guarantees whatsoever,” and the court would entertain the plea, hear argument, and decide what the sentence would be. After the court again accepted Coleman’s guilty plea, the State again recommended ten years to serve, but withdrew two of the four counseled felonies to give the trial court the discretion to probate some portion of the sentence if it wished to. The court declined to probate any of the required ten-year sentence, but did sentence Coleman under OCGA § 17-10-7 (a) as if this were his third felony, rather than under OCGA § 17-10-7 (c) as if this were his fifth felony, so that he is eligible for parole, in the discretion of the Board.

Despite his assertion that his trial counsel’s absence from the motion hearing denied him a fair and proper determination of his ineffectiveness claim, Coleman fails to indicate what additional information his trial counsel could have added to meet his “burden of showing that, had it not been for his attorney’s deficient representation, a reasonable probability exists that he would have insisted on a trial.” (Citation and punctuation omitted.) Howard v. State, 274 Ga. App. 861, 861-862 (619 SE2d 363) (2005).

Decided July 6, 2016.

Adrian L. Patrick, for appellant.

At the hearing on the motion to withdraw his guilty plea, Coleman’s new counsel informed the trial court that Coleman’s trial counsel was unavailable but that he “planned to go forward . . . and get started with this proceeding.” He then indicated that he would later request a stay so that the trial attorney could be “here at motions.” The trial court asked Coleman’s new counsel what additional information the trial counsel could testify to that would be favorable to Coleman, and appellate counsel had no response. The transcript also indicates that appellate counsel did not later approach the trial court and indicate that Coleman wanted to stay the proceedings.

This enumeration fails.

3. Coleman also contends that the trial court erred by participating in plea negotiations and that it abused its discretion when it failed to specifically and expressly inform Coleman what sentence he would receive if he entered a guilty plea as opposed to going to trial. However, the record shows that Coleman never raised these issues at the hearing on his motion to withdraw his guilty plea or in the actual motion, and “it is well settled that issues neither raised nor ruled on in the trial court cannot be raised for the first time on appeal.” (Citation and punctuation omitted.) Talton v. State, 324 Ga. App. 9 (749 SE2d 18) (2013). Further, the transcript of the plea colloquies makes it clear that Coleman was only offered a nonnegotiated, blind plea, and the trial court was not required to announce its sentence before accepting the guilty plea.

4. We also find no merit to Coleman’s argument that the trial court’s denial of Coleman’s motion to withdraw his guilty plea was a manifest injustice. Based on our conclusion that the trial court did not err in finding that trial counsel was not ineffective, and Coleman’s waiver of the remaining arguments, this enumeration also fails. See Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012) (“The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.”) (citations and punctuation omitted).

Judgment affirmed.

Boggs and Rickman, JJ., concur.

Denise D. Fachini, District Attorney, Christian L. Brown, Assistant District Attorney, for appellee.

       The State’s notice of evidence in aggravation of sentence listed convictions for theft by taking a motor vehicle, burglary, terroristic threats, theft by taking, and cocaine possession.

       As an initial matter, we note that Coleman’s brief fails to comply with our rules. He enumerates the same issues in different errors and argues errors different from those he initially enumerates. “[A] party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.” Pruitt v. State, 323 Ga. App. 689 (1) (747 SE2d 694) (2013). See Court of Appeals Rule 2 5 (c) (1) (“The sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.”).


text:
    A16A1242.
    ANDERSON v. THE STATE.
    (788 SE2d 831)
   BARNES, Presiding Judge.

A Cobb County jury found Charles Anderson guilty of armed robbery, and the trial court sentenced him as a recidivist to life imprisonment without parole. Anderson filed a motion for new trial, as amended, which the trial court denied. On appeal, Anderson contends that the trial court erred in allowing the State to introduce evidence of his recorded telephone conversations made from jail and in sentencing him as a recidivist. Anderson further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Anderson’s stepfather, Willie Plummer, lived in an apartment located on Six Flags Drive in Cobb County. Plummer lived with his wife and his grandson, Dashon Hicks.

On Sunday morning, October 28, 2012, Anderson went to Plum-mer’s apartment and asked Plummer if he could borrow his car. Plummer agreed, and Anderson left in the borrowed car with his nephew, Hicks, after asking Hicks to ride to work with him.

Instead of driving to work, however, Anderson drove with Hicks to Fayetteville, where they picked up another relative, Shantel Washington, and her boyfriend, Kenneth Eason. Anderson then drove the group to his own apartment in Atlanta, where he retrieved a change of clothes and a bag. After Anderson got back into the car, Washington, who was now driving, drove them to Six Flags Drive near where Plummer lived and parked down the street from a Waffle House. Anderson told Hicks that they were going to the restaurant to get their “adrenaline pumping.”

Once Washington parked the car, Eason and Anderson got out and went toward the Waffle House. Eason donned a ski mask, and Anderson zipped up his hoodie over his face except for the eyes. Both men wore dark clothing.

According to witnesses inside the Waffle House, two men dressed in black with their faces covered entered the restaurant around noon when it was crowded with customers. One of the men stood guard at the front entrance while the second man approached the cash register with a handgun, demanding money. The second man then jumped over the counter and grabbed the cash from the register while pointing a gun at a waitress. The witnesses’ descriptions of the two men indicated that Eason was the man who stood guard at the door while Anderson brandished the handgun and grabbed the cash from the register.

Eason and Anderson ran from the Waffle House back to the car where Washington and Hicks were waiting. Washington drove the group away from the scene. However, as they drove away, the group realized that a person in a van was following them and was recording the car’s tag number. Anderson told the others that he would call Plummer and tell him that his car had been stolen.

Washington drove to Anderson’s apartment, and Anderson called Plummer and told him that someone had stolen his car when it was parked outside a store. Anderson encouraged Plummer to call the police and report the theft of the car, but Plummer told Anderson that he should make the call. Anderson made several more phone calls to Plummer in an unsuccessful attempt to have him call the police and report the car stolen. Anderson also moved Plummer’s car a block away from his apartment and left it there.

Concerned about his car, Plummer went to Anderson’s apartment to find out what had happened. When Plummer arrived at the apartment and asked about his car, Anderson told him it was parked around the corner. Plummer went to his car and found it undamaged with the keys still in the ignition. Because Anderson claimed the car had been stolen, Plummer called 911 at that point, and an Atlanta police officer arrived, looked over the car, and released the car back to Plummer. Plummer and Hicks then drove the car back to Plummer’s apartment complex on Six Flags Drive.

In the meantime, the police had identified Plummer as the owner of the car involved in the Waffle House robbery based on the license tag number that had been provided by the driver of the van who had followed the car after the robbery. The police arrived at Plummer’s apartment complex around the same time that Plummer and Hicks returned there with the car. The police stopped the car and detained Plummer and Hicks.

Plummer and Hicks agreed to be interviewed at the police station. Plummer told a detective about what had transpired with respect to his car and was released after his interview. Hicks initially denied any knowledge of the robbery and told a detective that Plummer’s car had been stolen. Hicks later told the detective about the robbery and identified Anderson as one of the participants.

After speaking with Hicks, the detective obtained an arrest warrant for Anderson for armed robbery, and the police arrested him early the next morning. Anderson, Washington, and Eason were jointly indicted for armed robbery Hicks was not charged with any offenses.

At Anderson’s trial, Plummer and Hicks testified to events as summarized above. Hicks also testified that he had not known about the planned Waffle House robbery until they were already driving to the restaurant, denied that he had participated in the robbery or kept any of the stolen cash, and testified that Anderson told him to tell the police that Plummer’s car had been stolen and not to mention Anderson’s name.

Several eyewitnesses to the robbery also testified, as did the lead detective assigned to the robbery investigation. Additionally, over defense objection, the State introduced into evidence and played for the jury recorded telephone calls that Anderson made to Hicks from jail. During the recorded calls, Anderson questioned Hicks about what he had told the police and admonished Hicks for revealing Anderson’s participation in the robbery.

After the State rested, Anderson elected not to testify He did not call any defense witnesses.

Upon hearing all the evidence, the jury found Anderson guilty of armed robbery Following the guilty verdict, the State introduced certified copies of Anderson’s three prior convictions, one of which was a nolo contendere plea to armed robbery in Michigan. Based on the three certified prior felony convictions, the trial court sentenced Anderson as a recidivist under OCGA § 17-10-7 (a) and (c) to life imprisonment without parole.

Anderson filed a motion for new trial. Anderson was appointed new counsel who filed an amended motion, alleging that Anderson’s recorded jail telephone conversations with Hicks had been improperly admitted at trial, that his recidivist sentence was improper, and that his trial counsel had rendered ineffective assistance. Following a hearing at which Anderson’s trial counsel testified, the trial court denied Anderson’s amended motion for new trial. This appeal followed.

1. Anderson contends that the trial court erred by allowing the State to introduce the two recorded telephone calls that he made to Hicks from jail. According to Anderson, the recorded calls were inadmissible because they showed his bad character in that he used “street language and foul language” in the calls, and because the probative value of the calls was substantially outweighed by the danger of unfair prejudice. We disagree.

“It is well established that evidence that is relevant to an issue in the case is not rendered inadmissible simply because it incidentally puts the defendant’s character at issue.” Jones v. State, 283 Ga. App. 812, 813 (1) (642 SE2d 887) (2007). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. See State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015). And while “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . OCGA § 24-4-403, exclusion is “an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.” (Punctuation and footnote omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014). Furthermore, “as a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Punctuation and footnote omitted.) Oliver v. State, 329 Ga. App. 377, 379 (765 SE2d 606) (2014).

We discern no abuse of discretion by the trial court in admitting the recorded jail telephone calls. During the calls, Anderson quizzed Hicks about what he told the police about the robbery, and Anderson became upset when Hicks admitted that he had given the police Anderson’s name. Anderson admonished Hicks for divulging his name to the police, reminding Hicks that he had told him not to bring up Anderson’s name if questioned about the robbery. Anderson also asked Hicks if he told the police that Anderson had a gun. Additionally, Anderson told Hicks that the police would put “pressure” on Hicks while interviewing him, but that the pressure should not get to Hicks because Hicks had not done anything.

Anderson’s statements in the recorded telephone calls were relevant and admissible to show his consciousness of his own guilt for the armed robbery. See Bostic v. State, 294 Ga. 845, 848(2) (757 SE2d 59) (2014) (“[A]ny statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.”) (citation and punctuation omitted). Anderson’s statements also were relevant and admissible to corroborate Hicks’ testimony that he did not participate in the robbery and that Anderson had told him not to give Anderson’s name to the police. See United States v. Mena, 564 Fed. Appx. 995, 998 (II) (11th Cir. 2014) (evidence was relevant to corroborate testimony of witness whose credibility the defendant had attacked). “This is true even if [the statements] incidentally placed [Anderson’s] character into evidence.” Bostic, 294 Ga. at 848 (2). See Lewis v. State, 293 Ga. 110, 114 (2) (a) (744 SE2d 21) (2013).

Moreover, Anderson has not demonstrated that the probative value of the recorded telephone calls was substantially outweighedby the danger of unfair prejudice under OCGA § 24-4-403. As we have pointed out, “[t]he primary function of [OCGA § 24-4-403] ... is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect,” Williams, 328 Ga. App. at 879-880 (1), but that was not the situation here, where the recorded calls were clearly relevant to show Anderson’s consciousness of guilt and to corroborate Hicks’s testimony In light of the strong preference for admission of relevant evidence under OCGA § 24-4-401, the trial court did not abuse its discretion in striking the balance in favor of admitting the recorded calls into evidence. See Mena, 564 Fed. Appx. at 998 (II); Bostic, 294 Ga. at 848 (2); Lewis, 293 Ga. at 114 (2) (a).

2. Anderson next contends that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (a) and (c). Again, we disagree.

The recidivist statute imposes maximum sentences for any person convicted of a felony who was previously convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony See OCGA § 17-10-7 (a). In turn, if the person has three such prior felony convictions, upon a fourth felony conviction the person must serve the sentence without the possibility of parole. See OCGA § 17-10-7 (c). The burden is on the [S]tate to produce competent evidence of a prior conviction for purposes of sentencing. The State bears the burden of showing that the foreign convictions were for conduct which would be considered felonious under the laws of this state. And failure to properly prove the prior convictions requires remand and resentencing.

(Citations, punctuation and emphasis omitted.) Davis v. State, 319 Ga. App. 501, 504 (2) (736 SE2d 160) (2012). See OCGA § 17-10-7 (a), (c).

After the jury found Anderson guilty of armed robbery, the State introduced certified copies of three prior convictions for purposes of recidivist sentencing under OCGA § 17-10-7 (a) and (c). One of the prior convictions was for armed robbery in Michigan. The certified copies of the Michigan charging document and judgment of sentence reflect that Anderson pled nolo contendere to armed robbery in Michigan Recorder’s Court for stealing a car from a victim at gunpoint on August 19, 1991, and that Anderson was given a sentence committing him to the Michigan Department of Corrections for a term of six to fifteen years. His sentence included a court recommendation that he be housed in a facility with youthful offenders.

On appeal, Anderson contends that the State failed to prove that his prior Michigan conviction would have constituted a felony in Georgia, given that he was under 17 years old and thus was a juvenile offender when the Michigan offense occurred. Consequently, Anderson maintains that his Michigan conviction could not be used by the trial court as a prior felony conviction for the purpose of sentencing him as a recidivist under OCGA § 17-10-7 (a) and (c).

As an initial matter, we note that Anderson did not object to the admission of his Michigan conviction at the sentencing hearing. In any event, even if Anderson did not waive his objection to the Michigan conviction by failing to object in the trial court, the trial court committed no error in using the conviction as a predicate offense for recidivist punishment.

As a general rule, prior offenses committed in other states by a defendant when he was a juvenile cannot be used as predicate convictions for recidivist punishment because in Georgia, “[a] juvenile is not convicted of felonies, but adjudicated a delinquent, based on delinquent acts,” and “[t]he plain terms of [the recidivist statute] require that the defendant be convicted of prior crimes which if committed in this state would be felonies.” Miller v. State, 231 Ga. App. 869, 871 (2) (501 SE2d 42) (1998). However, if the defendant, despite his juvenile status, could have been convicted of a felony if the prior offense had been committed in Georgia, then the prior offense can be used as a predicate conviction for recidivist punishment under OCGA § 17-10-7 (a) and (c). See Moore v. State, 276 Ga. App. 55, 56 (622 SE2d 417) (2005). That is the situation here.

When Anderson committed the Michigan armed robbery in August 1991, juvenile courts in Georgia had jurisdiction over juvenile matters involving children under 17 years old. See OCGA §§ 15-11-2 (2) (A); 15-11-5 (a) (1) (1991). But the Georgia statute that addressed the jurisdiction of juvenile courts also gave superior courts concurrent jurisdiction over certain offenses committed by juveniles:

Concurren t criminal jurisdiction. The [juvenile] court shall have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in a superior court and for which the child may be punished by loss of life or confinement, for life in a penal institution.

(Emphasis in original.) OCGA § 15-11-5 (b) (1991). Juvenile courts and superior courts thus had concurrent jurisdiction over a child under 17 years old who committed a crime punishable by loss of life or confinement for life. See id.

As previously noted, the Michigan charging document alleged that Anderson took a car from the presence of the victim by use of a handgun. These same allegations would have constituted the crime of armed robbery under Georgia law. See OCGA § 16-8-41 (b) (1991) (“A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon[ ] ”). Furthermore, the potential punishment for armed robbery in Georgia included imprisonment for life. See OCGA § 16-8-41 (b) (1991). Thus, if Anderson had committed the same offense in Georgia as a juvenile in 1991, a superior court would have had concurrent jurisdiction over the matter and Anderson could have been convicted of the felony offense of armed robbery. See OCGA § 15-11-5 (b) (1991).

For this reason, the State met its burden of proving that Anderson’s Michigan conviction was for conduct that would have been considered a felony under Georgia law. The trial court therefore committed no error in using the Michigan conviction as a predicate offense for recidivist punishment under OCGA § 17-10-7 (a) and (c) and sentencing Anderson accordingly See Moore, 276 Ga. App. at 56 (prior armed robbery by juvenile could be used for recidivist sentencing). Compare Smith v. State, 266 Ga. App. 111, 112-113 (596 SE2d 230) (2004) (prior delinquent act of burglary by juvenile could not be used for recidivist punishment because superior court did not have concurrent jurisdiction over that offense).

3. Lastly, Anderson contends that his trial counsel rendered ineffective assistance in several respects. To establish a claim of ineffective assistance of counsel under the test established in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Anderson

must show both that counsel’s performance was deficient, and the deficient performance was prejudicial to his defense. Moreover, to establish deficient performance, [Anderson] must overcome the strong presumption that his counsel’s conduct fell within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way, considering all circumstances and in the light of prevailing professional norms. Further, failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.

(Citations and punctuation omitted.) Brannon v. State, 298 Ga. 601, 611 (7) (783 SE2d 642) (2016). In addressing a claim of ineffective assistance on appeal, we review the trial court’s legal conclusions de novo and its factual findings under the clearly erroneous standard. Ellison v. State, 296 Ga. App. 752, 755 (2) (675 SE2d 613) (2009).

(a) Anderson argues that his trial counsel was ineffective for failing to object to the trial court’s use of his prior Michigan conviction as a predicate offense for recidivist punishment. But, as explained supra in Division 2, Anderson’s Michigan conviction could be used for purposes of recidivist sentencing. Anderson’s trial counsel was not ineffective for failing to raise a meritless objection. See Copeland v. State, 281 Ga. App. 11, 14 (3) (b) (635 SE2d 283) (2006).

(b) Anderson also argues that his trial counsel was ineffective for failing to subpoena any eyewitnesses to the Waffle House robbery and have them testify as defense witnesses. However, at the hearing on Anderson’s motion for new trial, his trial counsel testified that as part of his investigation, he had reviewed the witness statements taken by the police at the Waffle House and did not believe that any of the witnesses would testify favorably for the defense.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics, and that tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

(Citations and punctuation omitted.) Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009). Based on trial counsel’s testimony at the new trial hearing, Anderson has failed to show that his counsel’s decision not to subpoena any eyewitnesses to testify for the defense at trial was so unreasonable that no competent attorney would have made the same decision. See id.

(c) Anderson contends that his trial counsel was ineffective for asking a question on cross-examination that elicited testimony from the lead detective that impermissibly bolstered Hicks’ credibility before the jury He further contends that his trial counsel was ineffective for failing to object or move to strike the bolstering testimony once elicited from the detective.

During trial, Anderson’s trial counsel asked the lead detective several questions on cross-examination aimed at undermining Hicks’ credibility before the jury Among other things, trial counsel inquired about Hicks’ second interview with the detective in which Hicks for the first time admitted that Plummer’s car had not been stolen and that Anderson was present at the robbery:

COUNSEL: [H]ow long did that second set of interviews [with Hicks] last?
DETECTIVE: Oh, less than an hour, most likely COUNSEL: During the course of that hour, did he tell you that he’d do anything or say anything in order to stay out of prison?
DETECTIVE: I don’t recall that, no.
COUNSEL: Okay
DETECTIVE: I do recall him making statements that he didn’t did not want to go to jail, did not want to go to prison for something he didn’t do.

(Emphasis supplied.)

Contrary to Anderson’s argument, the detective’s last answer did not amount to impermissible bolstering.

It is erroneous for a witness, even an expert, to bolster the credibility of another witness by expressing an opinion that the witness is telling the truth. What is forbidden is opinion testimony that directly addresses the credibility of the victim, i.e., “I believe the victim; I think the victim is telling the truth.”

(Citations and punctuation omitted.) Wright v. State, 327 Ga. App. 658, 661 (2) (a) (760 SE2d 661) (2014). In his last answer, however, the detective did not express an opinion that Hicks was telling the truth, and thus did not directly address Hicks’ credibility. Because the detective’s testimony did not constitute impermissible bolstering, Anderson has failed to show that his trial counsel was deficient in his questioning of the detective or in his failure to object or move to strike the detective’s testimony. See id. at 661-662 (2) (a).

Decided July 6, 2016.

Raina J. Nadler, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Furthermore, trial counsel testified at the new trial hearing that he had not believed that any objection to the detective’s response was necessary, given that counsel had already highlighted to the jury that Hicks had lied to the police. The scope of cross-examination and the decision whether to raise certain objections is a matter of trial tactics and strategy. See Brunson v. State, 322 Ga. App. 302, 303 (2) (744 SE2d 801) (2013); Martinez v. State, 303 Ga. App. 166, 174 (4) (b) (692 SE2d 766) (2010). Anderson has failed to show that his trial counsel’s strategy on cross-examination of the detective was so unreasonable that it constituted ineffective assistance.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Eason was separately tried and convicted of armed robbery, and his conviction was affirmed by this Court in Eason v. State, 331 Ga. App. 59 (769 SE2d 772) (2015). The status of Washington’s case is unclear from the record.

       Because Anderson’s trial commenced in May 2014, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (new Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

       We note that Anderson’s statements constituted admissions of a party opponent under OCGA § 24-8-801 (d) (2) (A) and thus were not inadmissible hearsay. See Bostic v. State, 294 Ga. 845, 848 (2) (757 SE2d 59) (2014) (defendant’s statements made to fellow inmate while in jail awaiting trial were properly admitted as admissions of a party opponent).

       “Given the similarity between Georgia’s new evidence code and the Federal Rules of Evidence it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Citation and punctuation omitted.) Williams, 328 Ga. App. at 879 (1), n. 14.

       OCGA § 17-10-7 (a) provides:
      Except as otherwise provided in subsection (b) or (b.l) of this Code section, any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

       OCGA § 17-10-7 (c) provides:
      Except as otherwise provided in subsection (b) or (b.l) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be 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.

       Anderson also pled nolo contendere to kidnapping and possession of a felony firearm in the Michigan case, but his convictions and sentences on these additional counts were later vacated during resentencing. In contrast, Anderson’s original sentence of six to fifteen years for armed robbery remained in place as part of the resentencing, and Anderson was again sentenced to the custody of the Michigan Department of Corrections, with the same court recommendation that he be incarcerated in a facility for youthful offenders.

       There is some discrepancy in the record as to whether Anderson was in fact under 17 years old when he committed the Michigan armed robbery. But assuming arguendo that Anderson was younger than 17 when he committed the Michigan offense, we conclude that the offense still could have been prosecuted as a felony if it had been committed in Georgia, as explained below.

       Anderson does not dispute that a nolo contendere plea can constitute a prior conviction for purposes of recidivist sentencing. See Phillips v. State, 329 Ga. App. 279, 282 (2) (a) (764 SE2d 879) (2014).

       See, e.g., Robbins v. State, 326 Ga. App. 812, 813 (757 SE2d 452) (2014) (defendant’s argument that first offender guilty plea did not constitute a “conviction” for purposes of recidivist sentencing could be raised for the first time on appeal because “a challenge to . . . [a] void sentence cannot be waived by the failure to object”) (citations and punctuation omitted). Compare von Thomas v. State, 293 Ga. 569, 573-574 (2) (748 SE2d 446) (2013) (distinguishing between different types of challenges to prior convictions used for recidivist sentencing that can and cannot be waived by the failure to object in the trial court, and holding that a challenge to the validity or existence of a prior conviction can be waived).


author: ANDREWS, Presiding Judge.

text:
    A16A0602.
    THE STATE v. BANKS.
    (789 SE2d 619)
   ANDREWS, Presiding Judge.

Following a jury trial, the Superior Court of Glynn County entered judgments of conviction against Levi Banks, Jr., on one count of aggravated child molestation (OCGA § 16-6-4 (c)) and one count of child molestation (OCGA § 16-6-4 (a) (1)). Banks obtained new counsel and filed a motion for new trial arguing, inter alia, that he received ineffective assistance of trial counsel. The trial court granted Banks’ motion, and the State appeals. See OCGA § 5-7-1 (a) (8). Because we conclude that the trial court erred in concluding Banks received ineffective assistance of trial counsel, we reverse and remand.

Viewed in a light most favorable to the verdict, the evidence revealed that Banks lived with his grandparents Wayne (“Amy”) and Oían Daffron and had resided with them since he was approximately six years old. On Friday, July 27, 2012, Victoria Boatright (Banks’ aunt and Oían Daffron’s daughter) visited the Daffrons’ residence with her daughter, Kelli, and Kelli’s four-year-old daughter and three-week-old son. Kelli and her children planned to stay with the Daffrons for the weekend. After dropping off Kelli and her children, Victoria left with plans to return and pick them up the following Sunday afternoon.

That same evening, however, Victoria received a telephone call from Kelli. Kelli was very upset, and Victoria could hear Olan Daffron in the background as well. When Victoria arrived, she saw Olan Daffron sitting on the front porch and Kelli and her children standing in the front doorway Victoria gathered the childrens’ belongings and loaded Kelli, the children, and their belongings into her car. As Victoria began to drive away, Kelli’s daughter told her that Banks had “licked [her] hiney” and had given her candy Victoria stopped immediately, got the victim out of the car, and walked up to Olan Daffron. She then asked what Banks had done, and the victim repeated that Banks “licked my hiney and gave me candy.” When Victoria asked the victim how the incident occurred, the victim pointed to her private area and moved her shorts and panties to one side. Shocked, Victoria left with the victim and reported the incident to police the next morning. After the incident, Victoria noticed that the victim placed her hands inside her pants and masturbated, telling Victoria that is where Banks licked her. The victim also frequently volunteered to tell others what had happened to her.

After Victoria reported the incident to law enforcement, the victim appeared for a forensic interview and a forensic medical examination. During the forensic interview, the victim stated that Banks licked her on her “hiney,” which she identified as her vagina through the use of anatomically correct drawings. At the forensic medical examination, the victim stuck out her tongue, licked the air, and said Banks licked her “where I pee.”

At trial, the victim testified that Banks had “licked [her] hiney” under her clothes and had given her candy The victim further stated the incident occurred in Banks’ room while Kelli and the Daffrons were in another room in the house. Furthermore, Banks’ cousin testified as a similar transaction witness that, when she was ten years old, Banks fondled her breasts and vagina when the two were playing “hide and go seek.” Finally, Banks testified that he gave the victim candy and that he may have patted her buttocks, but denied licking her or otherwise touching the victim inappropriately.

In its sole enumeration of error, the State contends the trial court erred in granting Banks’ motion for new trial as amended because Banks was not deprived of the effective assistance of counsel. We agree.

Under Georgia law,

to obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different,. To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(Citations and punctuation omitted.) Copeland v. State, 327 Ga. App. 520, 527 (3) (759 SE2d 593) (2014). An attorney’s lack of experience, standing alone, is not grounds for a claim of ineffective assistance of counsel. See Simmons v. State, 291 Ga. 705, 713 (10) (b) (733 SE2d 280) (2012); Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010); Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). To the contrary, “a successful ineffectiveness claim must be based upon specific errors made by counsel, rather than upon trial counsel’s experience or lack thereof.” Sevostiyanova v. State, 313 Ga. App. 729, 737 (11) (a) (722 SE2d 333) (2012). If a defendant fails to satisfy either prong of the test for ineffective assistance of counsel, it is not incumbent upon this Court to examine the other prong. See, e.g., Thomas v. State, 318 Ga. App. 849, 857 (5) (734 SE2d 823) (2012).

“When reviewing a trial court’s decision to grant a motion for new trial based on ineffective assistance of counsel, we defer to the trial court’s findings of fact unless clearly erroneous, but owe no such deference to its conclusions of law which we apply independently to the facts.” State v. Sims, 296 Ga. 465, 468-469 (2) (769 SE2d 62) (2015). In reviewing Banks’ claims of ineffective assistance, the trial court recited Banks’ grounds and found that testifying counsel “was not properly mentored throughout the proceedings by an experienced attorney and did not possess the knowledge necessary to properly represent [Banks] in a capital case.” However, the trial court failed to enter findings of fact and conclusions of law on Banks’ specific grounds of ineffective assistance. See White v. State, 287 Ga. 713, 720 (4) (699 SE2d 291) (2010). Rather, it simply concluded that testifying counsel’s performance “was deficient and that the deficient performance was prejudicial to [Banks’] defense.”

Although a thorough review of the record reveals that three attorneys from the Brunswick Judicial Circuit Public Defender’s Office represented Banks at trial, one of whom was the chief circuit public defender, Banks presented the testimony of only one of his three attorneys during the hearing on his motion for new trial. Notably, Banks does not distinguish between his three attorneys which attorney was responsible for the individual claims of ineffective assistance. Compare Kerdpoka v. State, 314 Ga. App. 400, 407 (6) (b) (724 SE2d 419) (2012) (defendant distinguished between alleged errors by lead counsel and assistant counsel). According to his motion for new trial as amended, Banks contended that he received ineffective assistance of trial counsel due to four specific errors. We address each in turn.

(a) Testimony of Dr. Greg Cox. First, Banks contends he received ineffective assistance due to lead counsel’s failure to timely disclose Dr. Greg Cox as an expert witness, which resulted in a limitation of Dr. Cox’s proposed testimony. Because the record demonstrates that the attorney designated as lead counsel did not participate in the notice and presentation of Dr. Cox, we conclude that Banks failed to demonstrate ineffective assistance by lead counsel.

During trial, a State’s witness testified that the four-year-old victim became “obsessed with her private areas” and masturbated after the abuse had been disclosed. Lead counsel objected, arguing that the information concerning the victim’s masturbation had not been disclosed in discovery The trial court overruled the objection. Following additional testimony, lead counsel renewed the objection, moved for a mistrial, and argued that the State opened the door to child psychology issues which required expert testimony “to explain to the jury why a four-year-old . . . playing with herself is seemingly normal behavior.” The chief circuit public defender then engaged in an extended colloquy with the trial court, focusing upon the need for an expert witness to explain sexual behavior in children. The trial court denied Banks’ motion for mistrial.

After a lunch recess, the circuit public defender revisited the need for an expert witness in child psychology. The trial court required Banks to “let the State know what you expect... your expert to testify about,” and stated that it would “protect [the defense] on getting your expert in.” The next day, the circuit public defender stated that Dr. Cox would testify concerning sexual behavior by children as well as “aspects of child brain development and memory and recall.” The State objected to any proposed testimony by Dr. Cox beyond the sexual behavior of children, and the trial court deferred its ruling until Banks filed a written notice of Dr. Cox’s proposed testimony

Banks’ written notice of intent to present expert testimony identified Dr. Cox’s proposed testimony in “the areas of child psychology and development, age appropriate behaviors for young children, now discredited trauma syndromes ..., and with respect to the brain development, memory and recall of young children.” The parties engaged in a lengthy discussion with the trial court concerning the scope of Dr. Cox’s proposed testimony, after which the State met with Dr. Cox. The State then renewed its objection to Dr. Cox offering expert testimony on any topic not related to sexual behavior by children. The trial court agreed and limited Dr. Cox to “the age appropriate sexual behavior” of young children.

Aside from the initial objection to testimony about masturbation by the victim, lead counsel neither argued the motion to admit Dr. Cox’s testimony during trial, nor executed the notice of intent to introduce Dr. Cox’s testimony. Furthermore, Banks did not present either attorney responsible for introducing Dr. Cox’s testimony as a witness during Banks’ motion for new trial hearing. See Morris, 330 Ga. App. at 752 (2); Kerdpoka, 314 Ga. App. at 407 (6) (b). Finally, although Banks proffered an affidavit by Dr. Cox outlining his proposed testimony, the affidavit does not demonstrate that the result of Banks’ trial may have been different had Dr. Cox’s testimony been admitted. Inasmuch as lead counsel had no role in notifying the trial court of Banks’ intent to introduce expert testimony, there is no action or inaction to find erroneous. As a result, we conclude Banks failed to demonstrate ineffective assistance of trial counsel.

(b) Testimony of Improper Interview Techniques. Second, Banks argued that trial counsel failed to present expert testimony on allegedly improper interview techniques during the forensic interview of the victim. During the motion for new trial hearing, lead counsel testified that she approached the chief circuit public defender in advance of trial concerning the need for an expert on “the interview techniques by the two police officers.” The circuit public defender replied only that they “couldn’t get an expert.” Lead counsel did not “follow-up after that conversation.” The circuit public defender did not testify during the motion for new trial hearing.

Pretermitting whether lead counsel erred in failing to do more to secure an expert witness in the field of forensic interviewing, Banks “has failed to show prejudice in this case because he has offered no evidence as to what an expert. . . would have opined.” White v. State, 293 Ga. 635, 636 (2) (748 SE2d 888) (2013). See also Brown v. State, 293 Ga. 518, 519 (2) (748 SE2d 388) (2013) (“Speculation that [a witness] could have given testimony favorable to the defense does not establish prejudice.”); Arbegast v. State, 332 Ga. App. 414, 421 (4), 426 (6) (g) (773 SE2d 283) (2015); Bagwell v. State, 329 Ga. App. 122, 129 (2) (b) (ii) (764 SE2d 149) (2014).

To establish the prejudicial effect of trial counsel’s failure to present certain evidence, an appellant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case. Absent a proffer of what the testimony of his expert would have been at trial, [Banks] cannot show that there is a reasonable probability that the outcome of the trial would have been different, had his counsel taken the suggested course.

White, 293 Ga. at 636-637 (citing Smith v. State, 303 Ga. App. 831, 835 (4) (695 SE2d 86) (2010)). As a result, Banks again failed to demonstrate ineffective assistance of trial counsel.

(c) Certified Copies of Prior Convictions of State’s Witnesses. Third, Banks alleged that trial counsel failed to obtain certified copies of convictions of either Kelli or Victoria Boatright, each of whom were identified as potential witnesses for the State. At the hearing on Banks’ motion for new trial, lead counsel acknowledged that Kelli Boatright was not a testifying witness. In addition, lead counsel could not state whether Victoria Boatright even had a prior conviction, stating that she did not believe Victoria Boatright “had ever been adjudicated guilty” and that a criminal action was “still pending somewhere.”

Irrespective of whether lead counsel played any role in the search for prior convictions, Banks failed to introduce copies of any convictions, certified or uncertified, at the motion for new trial hearing. In the absence of any supporting evidence, Banks failed to establish that he was prejudiced by lead counsel’s alleged error. See, e.g., Wallace v. State, 294 Ga. 257, 259 (3) (a) (754 SE2d 5) (2013); Aburto v. State, 327 Ga. App. 424, 431 (3) (b) (759 SE2d 276) (2014); Long v. State, 324 Ga. App. 882, 896 (7) (752 SE2d 54) (2013); Leopold v. State, 324 Ga. App. 550, 555 (1) (b) (751 SE2d 184) (2013); Ashmid v. State, 316 Ga. App. 550, 557 (3) (a) (730 SE2d 37) (2012) (“there has been no showing in the record that any State witness even had a criminal history to discover”). Compare Curtis v. State, 330 Ga. App. 839, 843 (1) (c) (i) (769 SE2d 580) (2015).

(d) Inexperience of Trial Counsel. Finally, Banks contended that trial counsel lacked experience “to litigate a case of this magnitude.” The gravamen of Banks’ claim is that the attorney from the Public Defender’s Office designated as lead counsel was inexperienced and, despite receiving confirmation that she passed the Georgia bar examination prior to trial, had not been sworn in as a member of the State Bar of Georgia at the time of trial. These arguments fail.

(i) The attorney designated as lead counsel began working in the Brunswick Judicial Circuit Public Defender’s Office in September 2013.Atthattime, she was sworn in under the Graduate PracticeAct, which permitted her to practice “through the end of the month where I got my [b]ar results. . . See Supreme Court of Georgia Rules 97, 100. She was designated lead counsel on October 11, 2013, and she learned that she passed the bar examination on October 25, 2013, the Friday before Banks’ trial began on the following Monday She was later sworn in as a member of the State Bar on November 7, 2013.

To prepare for Banks’ trial, lead counsel met with Banks on two occasions; discussed the State’s plea offer with him; received and reviewed discovery from the State, including reports concerning law enforcement’s interviews of witnesses; reviewed discovery with Banks; offered to review the victim’s forensic interview with Banks, which Banks declined; interviewed Banks’ grandparents, his pastor, and a potential witness (Tommy Clark); issued subpoenas to multiple witnesses; discussed potential plea offers with the State; and filed three motions in limine, four motions for in camera inspections of various records, open records requests, a motion for individual voir dire, a motion for a special juror questionnaire, and the defense’s requests to charge. In addition, lead counsel had participated in a child abuse case during law school.

During trial, lead counsel individually argued multiple motions in limine; made motions for mistrial (which resulted in curative instructions); cross-examined three of the State’s witnesses; presented the direct testimony of three defense witnesses; moved to strike the victim’s testimony; and gave the defense’s closing argument. Lead counsel also conferred with other counsel at various points in the trial.

With this evidence in mind, and with no reference to a specific error by lead counsel, see Sevostiyanova, 313 Ga. App. at 737 (11) (a), we cannot say that lead counsel’s performance “fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight.” Copeland, 327 Ga. App. at 527 (3). To the contrary, we conclude that lead counsel rendered “adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id.

(ii) Banks’ argument targeting the inexperience and status of his lead counsel, and the trial court’s reliance upon it, is flawed for at least two reasons. First, the argument views one attorney in a vacuum and necessarily ignores the fact that two additional attorneys actively participated throughout Banks’ trial. In addition to the tasks lead counsel performed as outlined in Division (d) (i), supra, lead counsel consulted with, and yielded to, the other two attorneys throughout trial. Indeed, the trial court noted that lead counsel “had very capable counsel sitting with you all the way through this” and that “[y] ou’ve got three attorneys over there.” Banks himself acknowledged that he had the opportunity to communicate with each of his attorneys at any time during trial. The circuit public defender also noted that, at one point, “two gentlemen in the back of the courtroom are assistant public defenders and they’re assisting us with the case.” Moreover, defense objections by more than one defense counsel occurred with sufficient frequency that the trial court twice stated, “I’m just going to let one of you object at a time. . . .” Finally, during a recess, the circuit public defender noted that “we’ve got three lawyers here” to review the trial court’s proposed charge. Taken together, this evidence belies Banks’ assertion in his brief to this Court that other counsel merely made “brief guest appearances. . .

To the contrary, the record reveals a concerted effort by the Public Defender’s Office to present a coordinated and thorough defense for Banks. Despite the active participation of a team of attorneys, Banks presented no testimony concerning the performance and qualifications of the two remaining attorneys, one of whom was the circuit public defender.

Second, the more concerning issue is that, to the extent the designation of lead counsel was erroneous, Banks cannot invite error only to challenge the alleged error after an unfavorable result at trial. See Stewart v. State, 239 Ga. 588, 590 (6) (238 SE2d 540) (1977) (“A party cannot induce an alleged error or . ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ ”); Puckett v. State, 239 Ga. App. 582, 583 (1) (521 SE2d 634) (1999) (“ ‘one cannot complain of a judgment, ruling or result he has procured or aided in causing by his own strategy, tactics or conduct’ ”). In fact, the trial court knew that lead counsel had not been sworn in as a member of the State Bar of Georgia at the time of trial. The record reveals that, on the morning of the second day of trial, two of Banks’ three counsel were late. Lead counsel stated that, “since I have not yet been sworn in yet, I’m not sure that we can conduct — should conduct any proceedings before they get here.” The trial court agreed. Similarly, lead counsel agreed that she was not permitted “to do work in the courtroom without a supervising attorney with [her] See Supreme Court Rule 98. Finally, lead counsel did not express any objection to the trial court concerning her inexperience.

Decided June 8, 2016

Reconsideration denied July 7, 2016

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellant.

Richard O. Allen, Kevin R. Gough, for appellee.

In sum, we conclude that Banks failed to carry his burden to prove that lead counsel’s “performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different.” Copeland, 327 Ga. App. at 527 (3). Because the trial court erred in concluding that Banks received ineffective assistance of trial counsel, we reverse and remand.

Judgment reversed and case remanded.

Doyle, C. J., and Ray, J., concur.

       Banks did not contest by cross-appeal, and we so find that this evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of the crimes with which he was charged. See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish afact.”); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See also OCGA §§ 5-7-1 (b), 5-6-38 (a); State v. Nickerson, 324 Ga. App. 576, 581 (2) (749 SE2d 768) (2013) (‘to secure appellate review of the superior court’s adverse rulings on the other alleged violations . . . , Nickerson was required to file either a cross-appeal to the instant appeal or a separate notice of appeal”).

       Despite this lack of specificity in the trial court’s order, a remand is not required. See Hendrix v. State, 268 Ga. App. 455, 457 (2) (602 SE2d 133) (2004) (“[W]hen the record is sufficient, as here, an appellate court may decide ineffectiveness issues without remanding the case when the remand would waste judicial and legal resources and serve no useful purpose.”).

       The trial court correctly recognized inexperience alone “falls far short of demonstrating a complete failure of the adversarial process and would not support a finding of ineffective assistance of counsel,” but added that “inexperience alone is not what the Court is basing this decision on.” Although not specifically stated as a basis for its ruling, it appears the trial court found that the supervision of lead counsel was insufficient, which it determined is tantamount to ineffective assistance of counsel. Neither Banks nor the trial court cited any Georgia authority, and we have found none, in support of this proposition. But even if the proposition were true, Banks made no showing concerning the effectiveness of the two additional counsel who represented him at trial. See Division 1 (a) (ii) infra. Similarly, neither Banks nor the trial court cited any support for the position that a prospective attorney who has graduated from law school and passed the bar examination, but has not yet been admitted to practice law, constitutes a per se denial of a fair trial or of the effective assistance of counsel. See People v. Denzel W., 930 NE2d 974, 980-981 (Ill. 2010); Wilson v. People, 652 P2d 595, 597 (Colo. 1982). Moreover, the trial court’s finding is apparently based solely upon lead counsel’s statement on cross-examination that she “didn’t feel like there was any mentorship. . . .”

       A fourth attorney from the public defender’s office represented Banks during a pretrial Jackson-Denno hearing.

       The testifying attorney had been designated as lead counsel prior to trial. To the extent Banks’ allegations of ineffective assistance of counsel are directed toward attorneys who did not testify at the motion for new trial hearing, we note initially that it is “extremely difficult to overcome the presumption that . . . counsel’s conduct was strategic or that it falls within the wide range of reasonable professional conduct.” Kerdpoka v. State, 314 Ga. App. 400, 407 (6) (b) (724 SE2d 419) (2012). See also Davis v. State, 280 Ga. 442, 443 (2) (629 SE2d 238) (2006); McRae v. State, 289 Ga.App. 418, 419 (657 SE2d 323) (2008). However, since there is no specific claim that Banks’ two remaining counsel offered ineffective assistance, we conclude that any such claims have been waived. See Morris v. State, 330 Ga. App. 750, 751 (2) (769 SE2d 163) (2015) (an appellant is required to “raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived”).

       In one instance, the circuit public defender stepped in to correct a misstatement by lead counsel concerning the timing of a limiting instruction. In another, the circuit public defender represented Banks when the trial court advised Banks of his right to testify because lead counsel was “dealing with some witness issues for the defense case.”

       A second attorney from the public defender’s office cross-examined three State’s witnesses; examined two witnesses for the defense, including the defense’s expert witness; argued various motions and objections; and appeared for sentencing. Finally, the circuit public defender participated throughout the trial by arguing various motions, most notably the motion to allow Dr. Cox’s unabridged expert testimony.

       Furthermore, the record is replete with several instances in which more than one defense counsel participated in bench conferences or other hearings concerning evidentiary rulings.

       The only citation offered in support of Banks’ argument on this point is inapplicable because the Illinois Supreme Court found that a violation of its rule governing appearances by law school graduates did not amount to a per se denial of counsel. Denzel W., 930 NE2d at 982, 983. It is further distinguishable because the rule applicable in that case required the written consent of the client to be represented by the graduate . See id. at 980-981. There is no similar requirement in Georgia’s rules. See Supreme Court of Georgia Rules 97-103.

       In contrast, lead counsel “emphatically and even eagerly” testified to her own alleged ineffectiveness during Banks’ motion for new trial hearing, stating at one point that she “basically escorted [Banks] to prison.” See Carrie v. State, 298 Ga. App. 55, 62 (5), n. 23 (679 SE2d 30) (2009) (“this case is yet another example of the worrying trend of trial counsel emphatically and even eagerly testifying to [her] own incompetence.”).

       Banks raised several additional alleged errors in his motion for new trial as amended. The trial court concluded that, because it granted Banks’ motion for new trial on fair trial and ineffective assistance of counsel grounds, Banks’ remaining grounds were rendered moot. Because we reverse the trial court’s ruling on Banks’ claim of ineffective assistance of trial counsel, we remand to permit the trial court to evaluate Banks’ remaining claims.