text:
    A16A1495.
    ISSA v. THE STATE.
    (796 SE2d 726)
   DILLARD, Presiding Judge.

Following trial, a jury convicted Ahmed Issa on one count of conspiracy to commit armed robbery, one count of burglary, four counts of aggravated assault, three counts of attempt to commit armed robbery, three counts of false imprisonment, and one count of possession of a firearm during the commission of a felony. Issa appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his attempt-to-commit-armed-robbery convictions and arguing that the trial court erred in (1) denying his motion for severance; (2) finding that the aggravated-assault counts were not fatally flawed; (3) improperly instructing the jury on aggravated assault; (4) denying a mistrial when a State’s witness testified that Issa exercised his right to remain silent; (5) allowing the State to ask leading questions on direct examination; (6) failing to apply the rule of lenity when sentencing him as a recidivist on the attempted-armed-robbery convictions; and (7) denying his claim of ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that in November 2008, C. D. was taking accounting courses at a local college and living at a home in Roswell, which he shared with his older brother, F. D., who was attending another local college, and his younger sister M. D., who was in high school. On November 11, 2008, C. D. arrived home late after classes and went straight to bed; but a few hours later, he was shaken out of his slumber by a masked intruder brandishing a handgun. A struggle immediately ensued, and the gun fired, injuring C. D.’s finger. Nevertheless, C. D. valiantly continued to fight off the masked intruder, during which time the gun fired a second time, striking the intruder in the leg. But after a second intruder (who was also masked) entered his bedroom, C. D. desisted in his efforts to subdue the first intruder.

Down the hall, C. D.’s younger sister, M. D., awoke to the sounds of C. D. screaming and gunshots. She jumped out of bed and sprinted toward C. D.’s bedroom, but was immediately stopped by the second intruder who ordered her to lie on the floor. Meanwhile, the first (and now wounded) intruder—who was in a considerable amount of pain— began yelling at the second intruder to shoot C. D., but M. D. begged him to spare C. D.’s life. At the same time, C. D.’s older brother, F. D.—who had also been asleep in his own bedroom on the same hall—similarly awoke to the eery sounds of fighting, gunshots, and his younger sister’s screams. But as F. D. exited his bedroom and rushed toward the danger, the second armed intruder stopped him and ordered him to lie on the floor as well. The two intruders then used telephone cords to bind the hands and feet of all three siblings and dragged them into the hall.

Once the siblings were tied and lying bound in the hall, the intruders began violently kicking and hitting them while demanding to know where “the money and dope” were located. The siblings repeatedly denied having either drugs or large amounts of money, but the intruders did not believe them until C. D. revealed that the safe in his bedroom contained only documents. At this point, the first intruder begged the second intruder to leave the house so that he could seek immediate medical treatment for his wounded leg. But instead of departing, the second intruder dragged M. D. from the hall into her bedroom, shut the door, and raped her. A few minutes later, the second intruder ceased his sexual assault of M. D. at the behest of his wounded accomplice, who continued to complain that he was in severe pain and needed to leave.

Subsequently, the two intruders forced all three siblings downstairs and began loading electronics and other valuables from the home into C. D.’s car, with their plan being to take F. D. with them and force him to withdraw money from an ATM. But coincidentally, as the intruders had nearly completed loading C. D.’s car, fire-department vehicles arrived across the street in response to a neighbor’s 911 call about possible heart issues. Seeing the flashing emergency lights, and believing that the police had been alerted to the home invasion, the two intruders fled out the back door of the home post haste and scaled a wooden fence marking the boundary of the back yard. After waiting a few minutes to make sure that the intruders had indeed left the scene, the siblings untied themselves and raced across the street to inform the fire-department personnel about the home invasion.

Upon determining that none of the siblings’ injuries was life-threatening, the fire-department personnel called the police, who arrived within a few minutes and began collecting evidence, including blood from inside the home and from one of the wooden-fence slats. The siblings were then transported to a nearby hospital where an emergency-room physician treated C. D. for the bullet wound to his finger and a cut to the back of his head and also performed a rape-kit examination on M. D.

Because the siblings could not identify either of the masked intruders, the police detective who interviewed F. D. asked if he knew of any reason someone would want to break into his home or if he had noticed anything strange relating to their home recently. Upon considering the question, F. D. recalled that several days before the home invasion, he did, in fact, have an odd encounter with a woman whom he met over the summer but had not spoken with since that time. Her name was Destiny Forrester, and the two encountered each other in a Decatur nightclub one evening before departing for Forr-ester’s apartment, where they then engaged in sexual relations. After that night, F D. went out with Forrester a few more times, but ceased contacting her when it appeared that she was not interested in dating him. Then, out of the blue (and several nights before the home invasion), Forrester sent F D. a text message at around 10:00 p.m., asking if she could come over to his house. F. D. agreed, provided her with directions, and she arrived an hour or so later. But immediately upon entering the home, Forrester seemed distant and not interested in having intimate relations, as F D. had assumed. Instead, she was focused on looking around the home and spent an inordinate amount of time constantly reading and composing text messages. When F D. asked with whom she was texting, Forrester claimed that it was her roommate. Shortly thereafter, she asked to see the back yard and left abruptly when F D. refused her request.

Based on this information, the detective obtained an order for Forrester’s mobile-phone records, and a review of those records showed that the person with whom she was texting on the night in question was Kenneth Trusty. Next, the detective interviewed Forr-ester, and she ultimately admitted that she, her boyfriend (Darius Cook), and Trusty, who was Cook’s roommate, planned to rob F D. on the night she went to his home, believing him to be a drug dealer. In addition, Forrester further admitted that she spoke to Cook and went to his apartment early on November 12, 2008, at which time she learned that Trusty and another man, whom she did not know, broke into F. D.’s home in an attempt to rob him and that the other man was shot during the incident. With this additional information, and later after matching the blood found on one of the wooden-fence slats with a DNA sample already in CODIS, the detective determined that the name of Trusty’s accomplice was Ahmed Issa and that, mere hours following the home invasion, Issa sought and received medical treatment at Grady Hospital for a gunshot wound to his leg.

Thereafter, the State charged Trusty, Issa, and Cook, via the same indictment, with one count of conspiracy to commit armed robbery, and charged Trusty and Issa with one count of burglary, one count of rape, four counts of aggravated assault, three counts of attempt to commit armed robbery (one count as to each victim), three counts of kidnapping with bodily injury (one count as to each victim), three counts of false imprisonment (one count as to each victim), two counts of possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a convicted felon. Issa filed a motion to sever, which was denied, and the case then proceeded to a joint trial of Trusty and Issa, during which the foregoing evidence was admitted. At the trial’s conclusion, the jury convicted Issa of all charges except the rape and kidnapping offenses.

Subsequently, Issa obtained new counsel and filed a motion for new trial. After conducting a hearing on the matter, the trial court merged the conspiracy and attempted-armed-robbery convictions for sentencing, vacated both the burglary and possession-of-a-firearm-during-the-commission-of-a-felony convictions, but denied Issa’s motion in all other respects. This appeal follows.

1. In his initial enumeration of error, Issa challenges the sufficiency of the evidence supporting his convictions generally and specifically argues that the evidence was insufficient to support his convictions on the attempted-armed-robbery charges. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility but only decide whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as “there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]” With these guiding principles in mind, we turn first to Issa’s more specific challenge.

Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” And under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon . . . Here, Count 8 of the indictment charged Issa with criminal attempt to commit armed robbery, alleging that he

performed] an act which constituted a substantial step toward the commission of armed robbery, to wit: holding [C. D.] at gunpoint and demanding money and drugs,... and then gathering up items of his personal property and placing them into the victim’s car, with intent to commit theft and take property from the person and immediate presence of [C. D.] by use of an offensive weapon ....

And changing only the names of the victims, Counts 9 and 10 charged Issa with criminal attempt to commit armed robbery against F. D. and M. D., respectively.

Citing to the specific language in the indictment, Issa contends that the evidence was insufficient to support his attempted-armed-robbery convictions because the State failed to prove which victim owned which property. This argument is a nonstarter. As we have previously explained, robbery is “a crime against possession, and is not affected by concepts of ownership.” Indeed, the gravamen of the offense of armed robbery is “the taking of items from the possession of another by use of an offensive weapon, and not the identification of the specific owner of the item taken.” Thus, if property is taken from “the immediate presence or the actual or constructive possession of more than one victim, the defendant may be charged with the robbery of each victim.”

As for the indictment, the general rule that allegations and proof must correspond is “based upon the requirements (1) that the accused is definitely informed of the charges against him so he can present his defense and not be surprised by the evidence at trial, and (2) that he is protected against another prosecution for the same offense.” And here, the indictment sufficiently alleged the elements of attempted armed robbery Indeed, there can be no reasonable doubt that Issa was “sufficiently informed of the charges against him and also protected from subsequent prosecution for the same crime.” Additionally, the evidence presented at trial showed that two men, ultimately identified as Trusty and Issa, broke into the victims’ home, held all three victims at gunpoint while demanding drugs and money, and began loading electronics and other valuables from the home into the victims’ vehicle before fleeing the premises based on their mistaken belief that law-enforcement officers had arrived on the scene. Consequently, the evidence was sufficient to support Issa’s three attempted-armed-robbery convictions.

Issa also generally contends that there was only slight evidence connecting him to the home invasion at issue, and thus his convictions should be reversed. But it is well settled that “circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” And having reviewed the entirety of the record, we conclude that there was indeed sufficient evidence to support his remaining convictions.

2. Issa contends that the trial court erred in denying his pre-trial motion to sever his trial from that of his co-defendant, Trusty, arguing that his convictions were a result of the prejudicial spillover effect of evidence, including other bad acts, against Trusty Again, we disagree.

The decision of whether or not to grant or deny a motion to sever is within the discretion of the trial court, which it should exercise by considering the following three factors:

(1) whether the number of defendants will create confusion of the law and evidence applicable to each defendant; (2) whether there is a danger that evidence admissible against one defendant will be considered against another despite cautionary instructions to the contrary; and, (3) whether the defenses of the co-defendants are antagonistic to each other.

Importantly, the burden is on the defendant requesting the severance to do more than “raise the possibility that a separate trial would give him a better chance of acquittal.” Specifically, to prevail on a motion to sever, the defendant must “make a clear showing of prejudice and a consequent denial of due process.”

Here, the number of defendants (two) was small enough that the danger of confusing the jury was minimal, especially as both Issa and Trusty were charged with jointly participating in nearly all of the offenses arising out of the same crime scheme, i.e., the home invasion. Additionally, both Issa and Trusty denied ever entering the victims’ home; and although Trusty testified at trial, he did not implicate Issa in doing so. Thus, their defenses were not antagonistic to one another. And while the State presented evidence of other similar bad acts committed by Trusty, before it did so, the trial court explicitly instructed the jury that such evidence “pertains to Mr. Trusty only and not to the other accused,” and that “[t]his evidence may be considered by the jury for the sole issue or purpose against the party for which the evidence is limited and not for any other purpose.” Finally, as for the alleged spillover effect of the evidence generally, “the mere fact that the evidence against [Trusty] might have been stronger than the evidence against [Issa] does not mandate severance.” Given these particular circumstances, the trial court did not abuse its discretion in denying Issa’s motion to sever.

3. Issa also contends that the trial court erred in ruling that the aggravated-assault counts in the indictment were not fatally flawed. Yet again, we disagree.

As noted supra, the purpose of an indictment is “to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy.” And an indictment is technically correct and sufficient if it “states the offense in the terms and language of the Code or in language so plain that jurors understand the nature of the charged offense.” Consequently, the true test of the sufficiency of an indictment

is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

In this matter, Count 4 of the indictment charged Issa with aggravated assault with a deadly weapon, alleging that he “did unlawfully commit an assault upon the person of [C. D.] by shooting him with a handgun, a deadly weapon . . . Counts 5 through 7 also charged him with aggravated assault with a deadly weapon upon each of the three victims, alleging that he “did unlawfully commit an assault upon the person of [the victim] by pointing at [the victim] with a handgun, a deadly weapon.” All four counts essentially follow the language of former OCGA § 16-5-21 (a) (2), which provided that a person commits aggravated assault when he assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” And an indictment that is “substantially in the language of the Code is sufficient in form and substance.”

Issa, nevertheless, argues that the aggravated-assault counts charged no crime at all and were thus void because they failed to allege the elements of simple assault, i.e., that he attempted to commit a violent injury to the person of another or that he committed an act which placed another in reasonable apprehension of immediately receiving a violent injury. But this contention lacks merit. As the Supreme Court of Georgia has explained, “[i]t is not necessary that an indictment charging a defendant with aggravated assault specify the manner in which the simple assault was committed, but it must set forth the aggravating aspect.” Accordingly, because the indictment “used the language of the statute, included the essential elements of the offense, and was sufficiently definite to advise [Issa] of what he must be prepared to confront, it was not void.”

4. In a related enumeration of error, Issa contends that the trial court erred by improperly instructing the jury on aggravated assault, arguing that the court failed to also instruct the jury as to the elements of simple assault. However, this contention is belied by the record and, thus, lacks merit.

Initially, it is important to note that Issa did not object to any portion of the trial court’s jury charges, and under OCGA § 17-8-58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” The failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” In such cases, as the Supreme Court of Georgia has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Consequently, because Issa failed to object whatsoever to the jury charges, our review is limited to consideration in this regard.

It is, of course, well established that “the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness.” And in this matter, the trial court provided the jury with the following instruction pertaining to aggravated assault:

The offenses charged in Counts IV, V, VI, and VII are aggravated assault, and they will apply to all of those four charges in the indictment and will be the same definition of the crime charged but different, alleged victims.
Georgia law provides a person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that a defendant attempted to cause a violent injury to the alleged victim under [sic] the intention of committing an act that placed the victim with reasonable fear of receiving a violent injury.
The State must also prove as a material fact of aggravated assault... in this case that the assault was made with a deadly weapon. A firearm, when used as such, is a deadly weapon as a matter of law.

As previously noted, Issa argues that the trial court erred by failing to instruct the jury on simple assault as being part of the offense of aggravated assault. But the transcript clearly shows that the court instructed the jury as to both forms of simple assault in its aggravated-assault instruction. In doing so, rather than using the disjunctive “or” between the two definitions, the court seemed to combine the two definitions. But even assuming that the seemingly incorrect word “under” was not a transcription error, it was at worst a slip of the tongue. And the general rule is that “the existence of a mere verbal inaccuracy in a jury instruction, resulting from a palpable ‘slip of the tongue’ and which could not have misled or confused the jury will not provide a basis for reversal of a defendant’s conviction.” Furthermore, in addition to the charge quoted above, the trial court had earlier instructed the jury in its charges that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” The court also provided the jury with a copy of the indictment for review during its deliberations. Given these instructions as a whole, the trial court’s aggravated-assault instruction did not constitute plain error.

5. Issa also contends that the trial court erred in denying a mistrial after a State’s witness testified that Issa exercised his right to remain silent upon being arrested and after the State’s prosecutor referenced Issa’s failure to testify during closing arguments. Again, we disagree.

It is axiomatic that a defendant’s “exercise of his rights to remain silent and to be represented by counsel is not to be used as evidence against him.” That said, an improper comment on these rights “does not necessarily require reversal.” In fact, the grant or denial of a mistrial is within the trial court’s sound discretion, and “the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.”

In this matter, during its direct examination of the lead police detective, the State’s prosecutor recounted the detective’s investigation that led to him discovering that Issa sustained a gunshot wound on the night in question and then asked, “What was your next step?” The detective responded, “I had previously, before taking photos for Ahmed Issa, I had taken warrants out for him for the incident at [the victims’ home]. And once he was arrested, he refused to talk to us, but I also hada —.’’At this point, Issa’s counsel immediately objected and moved for a mistrial. But after a lengthy discussion outside the presence of the jury, the trial court found that the detective’s remark was not prompted by the State prosecutor’s question and, therefore, denied Issa’s motion. Once the jury returned, the court gave a curative instruction, directing the jury to ignore the detective’s last response. And following a juror’s question regarding which remark to ignore, the court clarified and confirmed, via a show of hands and general verbal agreement, that the jury would not construe the comment against the accused.

Issa argues that the trial court erred in refusing to grant a mistrial based on the lead detective’s testimony But testimony about the defendant remaining silent is not deemed to be prejudicial if “it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant.” Rather, to warrant a reversal of a defendant’s conviction, “the evidence of the election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” And here, the detective’s remark was not directed to any particular statement or defense offered by Issa, but was instead made during the detective’s explanation of the course of his investigation. Furthermore, there is no indication that the remark had the effect of being probative on the issue of guilt or innocence, and the trial court promptly gave a curative instruction to the jury. Under these particular circumstances, the court did not abuse its discretion in refusing to grant a mistrial.

Nevertheless, Issa argues that the prejudicial effect of the detective’s comment was compounded during the State’s closing argument, when the prosecutor was attacking the account that Issa allegedly provided hospital staff to explain his gunshot wound. Specifically, the prosecutor argued:

[I]f he could tell a story to the doctors to protect his own skin, that’s exactly what he’s going to do now. He knows the charges that he’s facing are really serious, so he’s going to come up with a story. Well, actually he didn’t even come up with a story, as far as you know. All you know is that the defense attorney, Mr. Sheppard, gave you a theory.

Issa’s counsel objected, claiming that the prosecutor was making an improper comment about Issa’s decision not to testify, but the trial court disagreed that the comment could be construed in such a way and overruled the objection.

Issa argues that the trial court erred in overruling his objection to this part of the State prosecutor’s closing argument. But in determining whether a prosecutor has improperly commented on an accused’s failure to testify,

we must evaluate whether the prosecutor’s manifest intention was to comment on the accused’s failure to testify or whether the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.

Importantly, it is not impermissible for the State to “comment on the general failure of the defense to produce any evidence, since counsel for the State may argue that evidence showing guilt has not been rebutted or contradicted.” Here, the State prosecutor’s comments were not directed at Issa’s decision not to testify, but were instead directed at the defense’s failure to adequately explain the State’s evidence. Accordingly, again, the trial court did not abuse its discretion in denying a mistrial.

6. Issa further contends that the trial court erred in allowing the State to ask its own witness leading questions. Once again, we disagree.

During the State’s case, it called Destiny Forrester as a witness. The State’s prosecutor immediately asked Forrester, “You don’t want to be here, do you?” Forrester responded, “No, I don’t want to.” Then, with the very next question, the prosecutor asked Forrester if she was afraid of the defendants, and she responded affirmatively Over the course of the next few minutes of the direct examination, the prosecutor asked Forrester several leading questions, and Trusty’s counsel eventually objected. But the trial court overruled the objection, stating “The witness has already testified she don’t want to be here, so I will give her some leeway and let her lead.”

Issa argues that allowing the State to ask leading questions of its own witness constituted reversible error. But a trial court has discretion to permit leading questions on direct examination when “a witness is reluctant, hostile, or overly nervous.” Moreover, it would be a rare case in which “the trial court’s exercise of discretion on this issue would warrant reversal.” And here, at the very start of the direct examination, Forrester testified that she did not want to testify and that she was afraid of the defendants, thus demonstrating both reluctance and nervousness. Accordingly, the trial court did not abuse its discretion in allowing the State to conduct its direct examination of Forrester with leading questions.

7. Issa next contends that the trial court erred in failing to apply the rule of lenity when sentencing him as a recidivist on the attempted-armed-robbery convictions. Specifically, Issa argues that his sentence on these convictions is void because there is an ambiguity between the recidivist statute, the armed-robbery statute, and the criminal-attempt statute. Yet again, we disagree.

We first note, as our Supreme Court has explained, that the rule of lenity finds its roots in the vagueness doctrine, “which requires fair warning as to what conduct is proscribed.” More precisely, the rule of lenity “ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment.” Nevertheless, if after applying the traditional canons of statutory construction “the relevant text remains unambiguous, the rule of lenity will not apply.”

Turning now to the statutes at issue, OCGA § 17-10-7 (a) provides in part:

. . . 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.

Under OCGA § 16-8-41 (b), “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” And under OCGA § 16-4-6 (a), “[a] person convicted of the offense of criminal attempt to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than 30 years.”

In this matter, after the jury rendered its verdict, the State introduced evidence that Issa had previously been convicted of felony offenses. The trial court then imposed separate sentences of thirty years for each of the three attempted-armed-robbery convictions.

On appeal, Issa argues that the interplay between the three foregoing statutes created an ambiguity that renders his sentence void. But only a few years ago, this Court held “that the construction of OCGA § 17-10-7 (a) as applied to the armed robbery statute is clear: the longest period of time prescribed for punishment of armed robbery is life imprisonment.” And we further concluded that there was “no ambiguity in the application of OCGA § 17-10-7 (a) to the sentencing provisions in the armed robbery statute.” Similarly, here, there is no ambiguity in the application of OCGA § 17-10-7 (a) to the sentencing provision for attempted armed robbery, which— under OCGA § 16-4-6 (a)—carries a maximum sentence of 30 years given the fact that a completed armed robbery carries a maximum sentence of life imprisonment. In light of these circumstances, the sentence imposed by the trial court for Issa’s attempted-armed-robbery convictions falls within the statutory range and is not void.

8. Finally, Issa contends that the trial court erred in denying his claim of ineffective assistance of counsel. Once again, we disagree.

In order to evaluate Issa’s claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, which requires Issa to demonstrate that his trial counsel’s performance was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In addition, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Unless clearly erroneous, this Court “will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.” Bearing these guiding principles in mind, we turn now to Issa’s specific claim.

Faced with testimony from all three victims that one of the perpetrators suffered a gunshot wound to the leg during the home invasion, testimony from an emergency-room physician that he treated Issa for a gunshot wound to the leg several hours after the home invasion, and Issa’s blood found on a wooden fence slat in the back yard of the subject home, Issa’s counsel argued in his closing that his client went with others to the victims’ home but abandoned the robbery plan, was then shot by one of the other perpetrators, and remained in the back yard for some time after being wounded. And in a further effort to explain why all three victims testified that the perpetrator who struggled with C. D. was shot, Issa’s counsel posited that this unknown perpetrator faked being wounded after the gun fired during the struggle and continued this charade while in the home, knowing that doing so would implicate a wounded Issa still waiting in the back yard.

Issa now contends, as he did in his motion for new trial, that his trial counsel’s argument during closing was so absurd that it amounted to ineffective assistance. But during the hearing on Issa’s motion for new trial, his trial counsel testified that in light of the strong—albeit circumstantial—evidence against his client, he believed that his theory of a third perpetrator, who faked being shot after the struggle with C. D., distanced Issa from the egregious crimes that occurred inside the victims’ home and best explained why Issa’s blood was found outside on the fence but was not conclusively matched with any of the blood found inside the home. And this is exactly the kind of strategic decision that, generally, cannot and will not “serve as the basis for an ineffective assistance claim.” Indeed, a strategy that “presents alternative defense theories — all of which are better for the defendant than the prosecution theory of the case — generally falls within the broad range of reasonable professional conduct.” And counsel’s reasoned explanation for his strategy here was “not so unsound that no reasonable lawyer would have pursued it.” Thus, the trial court did not err in denying Issa’s claim of ineffective assistance of counsel.

Decided January 31, 2017

Reconsideration denied February 23, 2017

Gerard J. Lupa, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Michael V. Snow, Assistant District Attorneys, for appellee.

For all the foregoing reasons, we affirm Issa’s convictions and the denial of his motion for new trial.

Judgment affirmed.

Reese and Bethel, JJ., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       CODIS, the Combined DNA Indexing System, is a database of DNA profiles linked among the states through the Federal Bureau of Investigation.

        See OCGA § 16-4-8.

        See former OCGA § 16-7-1 (a) (1980).

         See former OCGA § 16-6-1 (a) (1) (2006).

        See former OCGA § 16-5-21 (a) (2) (2006).

        See OCGA §§ 16-4-1; 16-8-41 (a).

        See former OCGA § 16-5-40 (a), (b) (4) (2006).

        See OCGA § 16-5-41 (a).

        See OCGA § 16-11-106 (b).

        See former OCGA § 16-11-131 (b) (2000).

       Cook had not been apprehended at the time of trial and, thus, was not tried with his co-defendants.

       The jury convicted Trusty of all charges except the kidnapping charges relating to F. D. andC.D. and the possession-of-a-firearm-by-a-convicted-felon charge, which was nolle prossed. We affirmed his convictions in an unpublished opinion, Trusty v. State, 337 Ga. App. XXIX (Case no. A16A0701) (June 10, 2016).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

        Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975); accord Ward u. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010); Harp v. State, 302 Ga. App. 17, 18 (690 SE2d 424) (2010).

        Ham v. State, 303 Ga. App. 232, 237 (1) (b) (692 SE2d 828) (2010) (punctuationomitted); see McKisic v. State, 238 Ga. 644, 646 (2) (234 SE2d 908) (1977) (“[T]he identity of the person alleged to have been robbed is not an essential element of the crime and need not be proved by direct evidence.”); Ward, 304 Ga. App. at 522 (1) (a) (same).

        Harp, 302 Ga. App. at 18 (punctuation omitted); see Green v. State, 265 Ga. App. 126, 128-29 (2) (592 SE2d 901) (2004) (“If two victims are robbed, the defendant maybe charged with the robbery of each victim.”).

        Ham, 303 Ga. App. at 237 (1) (b) (punctuation omitted); accord Veasey v. State, 322 Ga. App. 591, 594 (1) (b) (745 SE2d 802) (2013); Green v. State, 292 Ga. 451, 452 (738 SE2d 582) (2013) (“The purpose of an indictment is to inform the accused of the charges against him and to protect the accused against another prosecution for the same offense.”).

        Ham, 303 Ga. App. at 237 (1) (b) (punctuation omitted); accord Veasey, 322 Ga. App. at 594 (1) (b); see Haley v. State, 289 Ga. 515, 529 (3) (a) (712 SE2d 838) (2011) (holding that indictment sufficiently informed defendant of the charge against him so as to enable him to prepare a defense, and thus, there is no claim that he was surprised at trial).

        See Nyane v. State, 306 Ga. App. 591, 592 (1) (703 SE2d53) (2010) (holding that evidence defendant approached victim with a handgun while attempting to obtain money from convenience-store cash register, but fled without taking cash, was sufficient to support convictions for attempted armed robbery); see also Ham, 303 Ga. App. at 237 (1) (b) (holding that evidence supported the defendant’s convictions on charges of armed robbery of both victims, despite no proof of which victim owned the property taken, when evidence showed that both victims “were subjected to the robbers’ exercise of actual force by the use of an offensive weapon so as to induce the relinquishment of the property”); Harp, 302 Ga. App. at 18 (holding that evidence was sufficient to support convictions for two counts of armed robbery when money was taken from one victim’s immediate presence at gunpoint and given to second victim, and second victim was then forced to surrender the money to defendant at gunpoint).

        Patch v. State, 337 Ga. App. 233, 236-37 (1) (786 SE2d 882) (2016) (punctuation omitted).

        See Jackson, 443 U. S. at 319 (III) (B).

         Jones v. State, 318 Ga. App. 26, 36 (5) (733 SE2d 72) (2012); see Kidwell v. State, 264 Ga. 427, 432 (10) (444 SE2d 789) (1994) (“Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion . . . .”) (punctuation omitted).

        Jones, 318 Ga. App. at 36 (5) (punctuation omitted); accord McClendon v. State, 299 Ga. 611, 615 (3) (791 SE2d 69) (2016).

        Jones, 318 Ga. App. at 36 (5) (punctuation omitted); see Kidwell, 264 Ga. at 432 (10) (“The burden is on the defendant requesting the severance to ‘make a clear showing of prejudice_’ ”) (punctuation omitted).

        Jones, 318 Ga. App. at 36 (5) (punctuation omitted); see Kidwell, 264 Ga. at 432 (10).

        See McClendon, 299 Ga. at 615 (3) (holding that trial court did not abuse discretion in denying motion to sever because trial of three defendants would not create confusion); Jones,
        318 Ga. App. at 36 (5) (holding that trial court did not abuse discretion in denying motion to sever given that trial of only two defendants would not create confusion).

        See McClendon, 299 Ga. at 615 (3) (holding that trial court did not abuse discretion in denying motion to sever because co-defendants’ defenses were not antagonistic); Jones, 318 Ga. App. at 36 (5) (same).

        See White v. State, 315 Ga. App. 54, 62 (7) (726 SE2d 548) (2012) (holding that similar-transaction evidence against co-defendant did not require severance given that trial court instructed jury that such evidence only pertained to co-defendant).

        White v. State, 281 Ga. 276, 280 (3) (637 SE2d 645) (2006); see White, 315 Ga. App. at 63 (7) (noting that it is not enough for the defendant to show that she would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger, rather the defendant must show clearly that a joint trial prejudiced her defense, resulting in a denial of due process).

        State v. Austin, 297 Ga. App. 478, 478 (677 SE2d 706) (2009) (punctuation omitted); accord Ham, 303 Ga. App. at 237 (1) (b); see Green, 292 Ga. at 452 (“The purpose of an indictment is to inform the accused of the charges against him and to protect the accused against another prosecution for the same offense.”).

        Austin, 297 Ga. App. at 478.

         Id. at 478-79 (punctuation omitted).

        See former OCGA § 16-5-21 (a) (2) (2006).

        Austin, 297 Ga. App. at 480 (punctuation omitted); see also State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014) (noting that “an indictment couched in the language of the statute alleged to have been violated is not subject to a general demurrer” (punctuation omitted)).

        See OCGA § 16-5-20 (a).

        Chase v. State, Til Ga. 636, 638 (1) (592 SE2d 656) (2004); accord Wyatt, 295 Ga. at 261 (2) (a).

        Johnson v. State, 286 Ga. 432, 434 (687 SE2d 833) (2010); see Austin, 297 Ga. App. at 480 (holding that an indictment that is substantially in the language of the Code is sufficient inform and substance).

       OCGA § 17-8-58 (a).

       OCGA § 17-8-58 (b); see also Alvelo v. State, 290 Ga. 609, 614 (5) (724 SE2d 377) (2012) (holding that OCGA § 17-8-58 (b) requires an appellate court to revie w for plain error an alleged jury-instruction error to which no objection was raised at trial); Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014) (same).

        Alvelo, 290 Ga. at 615 (5) (punctuation omitted); accord Wheeler, 327 Ga. App. at 318 (3).

        See OCGA § 17-8-58 (b); see also State v. Alvarez, 299 Ga. 213, 214 (1) (790 SE2d 66) (2016) (noting that when trial counsel fails to object to a jury charge, appellate courts must review the issue under the plain-error doctrine); Wheeler, 327 Ga. App. at 318 (3); King v. State, 317 Ga. App. 834, 836-37 (1) (733 SE2d 21) (2012).

        Minor v. State, 328 Ga. App. 128, 132 (2) (a) (761 SE2d 538) (2014) (punctuation omitted); see Drayton v. State, 297 Ga. 743, 748-49 (2) (b) (778 SE2d 179) (2015) (explaining that before a jury charge will be considered reversible error, it must be considered in the context of the jury instructions as a whole).

        Green v. State, 291 Ga. 287, 294 (8) (a) (728 SE2d 668) (2012) (punctuation omitted); accord Madison v. State, 329 Ga. App. 856, 865 (2) (766 SE2d 206) (2014); Williams v. State, 303 Ga. App. 222, 230-31 (6) (692 SE2d 820) (2010).

        See Flournoy v. State, 294 Ga. 741, 743-44 (2) (755 SE2d 777) (2014) (holding that even when a jury instruction is defective, such a defect is cured when the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt); Wheeler, 327 Ga. App. at 319-20 (3) (same).

        Jefferson v. State, 312 Ga. App. 842, 852 (6) (720 SE2d 184) (2011); see Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008) (noting that the fact that a defendant has exercised the right to remain silent is not to be used against the defendant at trial).

        Jefferson, 312 Ga. App. at 852 (6); see Whitaker, 283 Ga. at 524 (3) (noting that an improper comment on the defendant’s silence does not necessarily require a reversal).

        Whitaker, 283 Ga. at 524 (3) (punctuation omitted); see Jefferson, 312 Ga. App. at 852-53 (6) (explaining that “ [t] he grant or denial of a mistrial is within the trial court’s sound discretion, and the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.” (punctuation omitted)).

        Whitaker, 283 Ga. at 524 (3) (punctuation omitted); see Parks v. State, 281 Ga. App. 679, 681 (2) (637 SE2d 46) (2006) (holding that comment on defendant’s silence was not reversible error because, inter alia, it did not have the effect of being probative on guilt or innocence).

        Whitaker, 283 Ga. at 524 (3) (punctuation omitted); see Parks, 281 Ga. App. at 681 (2) (same).

        See Whitaker, 283 Ga. at 524-25 (3) (holding that trial court did not abuse its discretion in denying a mistrial and instead giving a curative instruction when an improper comment on a defendant’s silence was not directed to any particular statement or defense offered by the defendant, was made during the witness’s explanation of the course of events, and did not have the effect of being probative on the issue of guilt or innocence); Jefferson, 312 Ga. App. at 853 (6) (same).

        Jennings v. State, 282 Ga. 679, 681-82 (4) (653 SE2d 17) (2007) (punctuation omitted); accord Dingier v. State, 293 Ga. App. 27, 31 (3) (666 SE2d 441) (2008).

         Dingier, 293 Ga. App. at 31 (3) punctuation omitted); see Ponder v. State, 268 Ga. 544, 545 (2) (491 SE2d 363) (1997) (holding that it was permissible for prosecutor to comment on the general failure of the defense to produce any evidence).

        See Ponder, 268 Ga. at 545 (2) (finding that prosecutor’s comment that defendant failed to offer evidence in his own defense was not an inappropriate comment on defendant’s failure to testify but was directed at defense counsel’s failure to explain the State’s evidence); Dingier, 293 Ga. App. at 31 (3) (same).

        Culler v. State, 277 Ga. 717, 721 (5) (594 SE2d 631) (2004); accord Spencer v. State, 328 Ga. App. 1, 5 (3) (761 SE2d 464) (2014); see OCGA § 24-6-611 (c) (“When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”).

         Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993); accord Spencer, 328 Ga. App. at 5 (3).

        See Fugate, 263 Ga. at 265 (10) (holding that the State could ask leading questions of its witness, a co-defendant who had entered a plea, after witness initially refused to answer questions in violation of her plea agreement); Spencer, 328 Ga. App. at 5 (3) (same).

        McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (punctuation omitted); accord Gordon v. State, 334 Ga. App. 633, 634 (780 SE2d 376) (2015).

        Gordon, 334 Ga. App. at 634 (punctuation omitted); see McNair, 293 Ga. at 283 (noting that the rule of lenity provides that statutory ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment).

        Gordon, 334 Ga. App. at 634-35; see McNair, 293 Ga. at 284 (stating that the rule of lenity does not apply when the statutory provisions are unambiguous).

        Mack v. State, 323 Ga. App. 821, 823 (748 SE2d 299) (2013) (punctuation omitted); see Worley v. State, 265 Ga.251, 252 (1) (454 SE2d 461) (1995) (“[T] he armed robbery statute clearly specifies that a person convicted of armed robbery can be sentenced to prison for life ”); Lester v. State, 309 Ga. App. 1, 5 (2) (710 SE2d 161) (2011) (concluding that life imprisonment was the longest authorized punishment for a conviction of armed robbery).

        Mack, 323 Ga. App. at 823; see also Worley, 265 Ga. at 253 (2) (holding that the armed robbery statute can be reconciled with OCGA § 17-10-1 and its sentencing provision is not unconstitutionally void for vagueness).

        See OCGA § 16-8-41 (b).

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland, 466 U. S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Chapman, 273 Ga. at 350 (2);see Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (punctuation omitted)).

        Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).

        Maurer v. State, 320 Ga. App. 585, 595 (6) (g) (740 SE2d 318) (2013) (punctuation omitted).

        State v. Mobley, 296 Ga. 876, 881 (770 SE2d 1) (2015).

        Maurer, 320 Ga. App. at 595 (6) (g); see Mobley, 296 Ga. at 881 (holding that trial counsel did not render ineffective assistance by positing mutual combat defense as an alternative in murder case, even if doing so might have impaired principal defense of justification); State v. Reynolds, 332 Ga. App. 818, 822-23 (775 SE2d 187) (2015) (holding that trial counsel’s strategy of explaining that defendant was at the scene of crime to deal drugs rather than commit robbery was not unreasonable).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A1609.
    WINFREY v. THE STATE.
    (795 SE2d 752)
   McMlLLIAN, Judge.

Jimmy Carlton Winfrey appeals from the judgment of conviction and sentence entered after he pled guilty to multiple charges of violating the Street Gang Terrorism and Prevention Act (OCGA § 16-15-1 et seq.) (“Street Gang Act”). In his sole enumeration of error, Winfrey contends that the trial court improperly participated in the plea negotiations to the extent that his pleas to the charged offenses were rendered involuntary We affirm for the reasons set forth below.

1. Before we turn to Winfrey’s substantive arguments, we must first address our jurisdiction to decide this appeal. The State has filed a motion to dismiss, contending that Winfrey has forfeited and waived his right to pursue this appeal because he did not first raise this issue in the trial court by filing a motion to withdraw his plea. However, our appellate courts have repeatedly and clearly rejected efforts to have direct appeals following guilty pleas dismissed on this basis, recognizing that a direct appeal is a “prescribed means to challenge [the] guilty plea.” Agerton v. State, 191 Ga. App. 633, 633 (382 SE2d 417) (1989). At the same time, our appellate courts have made equally plain that under these circumstances, our review is limited to only those claims that can be resolved by facts appearing in the record, including the guilty plea transcript and any other evidence properly presented to the trial court, provided such evidence is also included in the record on appeal. Smith v. State, 287 Ga. 391, 402-03 (3) (697 SE2d 177) (2010); see also Mims v. State, 299 Ga. 578, 580 (1) (787 SE2d 237) (2016) (“Even when a defendant has pleaded guilty, he still may be entitled to take an appeal of right, but only to the extent that the issues presented on appeal can be resolved by reference to the existing record.”); Smith v. State, 253 Ga. 169, 169 (316 SE2d 757) (1984); Kennedy v. State, 319 Ga. App. 498, 498 (735 SE2d 819) (2012); Olguin v. State, 296 Ga. App. 208, 209 (674 SE2d 89) (2009). Thus,

[although a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea, the possibility of expanding the record on which the appeal will be reviewed, and doing so with the assistance of appointed counsel if indigent, should create a strong incentive for defendants to do so.

(Emphasis supplied.) Smith, 287 Ga. at 403 (3), n.7.

Accordingly, before proceeding to the merits, our first step is to examine the record to determine if the issues Winfrey raises on appeal can be resolved by facts appearing in the record, including the transcript of his guilty plea hearing. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996); Jones v. State, 332 Ga. App. 506, 507 (773 SE2d 463) (2015); Kennedy, 319 Ga. App. at 498-99; see also Smith, 287 Ga. at 403-04 (3) (unable to consider challenge to plea based on failure to inform of effect of plea on immigration status when record does not disclose appellant’s citizenship status); Jones, 332 Ga. App. at 508 (1) (a), (b) (unable to consider claims based on earlier plea negotiations or mental competency absent an evidentiary hearing or other development of the record). Winfrey’s specific enumeration and arguments on appeal are based on statements made by the trial court on the record during discussion of the status of plea negotiations between Winfrey and the State, and a transcript of the proceedings during which they were made has been made part of the record on appeal. Because we can resolve the issues before us based on the existing record, Winfrey’s appeal is not subject to dismissal on this basis. Accordingly, the State’s motion to dismiss is denied. Harris v. State, 325 Ga. App. 568, 569-70 (754 SE2d 148) (2014) (issues appellant seeks to raise on appeal may be resolved from facts appearing in the existing record); Hayes v. State, 337 Ga. App. 280 (786 SE2d 539) (2016) (in which this Court reviewed claim of improper participation by trial court in plea proceedings in context of granted motion for out-of-time direct appeal).

2. We now turn to the merits of Winfrey’s claim that the trial court’s allegedly improper participation in the plea negotiation process rendered his plea involuntary The record reflects that on November 20, 2015, a hearing was convened to consider Winfrey’s pending pretrial motions. At the outset, the trial court initiated the process of placing the status of the parties’ plea negotiations on the record. The prosecuting attorney advised that the State had made two offers, both of which Winfrey had rejected and that he did not anticipate that the State would make any additional offers. Defense counsel then explained to the trial court that much of Winfrey’s hesitation to enter a plea centered around his parole eligibility because the Street Gang Act and RICO convictions would have made Winfrey less eligible for parole under the parole guidelines. The trial judge then stated on the record:

Well, of course, Mr. Winfrey, this opportunity is going away
I’m talking . . . and you need to listen. This opportunity is going away Go to trial and you get convicted there’s not going to be any of me being concerned about when you parole out. I will not be concerned about when you parole out.
I will not be able to impact what count — only a jury can impact what count you get convicted on or don’t get convicted on. So that’s for your team to figure out.
Whatever they say you’re guilty of I’m going to sentence you, and I’m not going to worry about when you get out of jail because it’s not my concern.
My concern is you went to trial, you didn’t take any responsibility for what you did or did not do. It was proved if you get convicted of what you did do. I’ll take that as truth, because a jury said so.
And I would also take into account that you didn’t take responsibility for what a jury says you did, and I won’t worry about your parole eligibility
And if you want to look around and see what happens to people in gangs in Cobb County, Georgia you can look at what happened last week to the guy who went to trial and got convicted and pulled . . . [one hundred to serve fifty]. There you go. These guys tried him. So I’m not judging them. That’s what she did.
I’m a whole different person. And you’re sitting over in the jail listening to everybody shoot their mouths off about this judge and that judge and the other judge.
We all have our reputations. My reputation is not that I’m an easy judge. I know it, you know it, the whole community knows it. So if that’s what you want to go up against be my guest.
You’ve got an offer, it’s about ready to evaporate. You’re not coming back to there unless you convince a jury of people from Cobb County, Georgia you didn’t do most of this.
There’s such a thing as winning a battle and losing a war. If you think you’re so smart and you’ve got it all figured out, you go to trial, let’s say you get acquitted on — how many counts are there, 27?
So let’s say you get acquitted on ten and convicted on seventeen. You add it all up it’s still a mess of time, and I don’t care when you get paroled.
It’s not my job, it’s not my function. My job is public safety, and my job is constitutionally a correct trial for everybody, which I will do.
Once that’s done, whatever they say you deal with, I’m going to worry about public safety.
So, y’all might want to talk a little bit more, but otherwise we’re going to do motions in about ten minutes.

When the proceedings reconvened approximately one hour and fifteen minutes later, the prosecuting attorney informed the court that the parties had reached a plea agreement, pursuant to which Winfrey would plead guilty to only six of the twenty-seven counts, and the State would nolle pros the remaining counts. Following the State’s presentation of the factual basis for the plea, the trial court thoroughly questioned Winfrey concerning the voluntariness of his plea and further provided an extensive explanation of his rights and the consequences of entering his plea. In accordance with the plea agreement, the trial court then sentenced Winfrey to twenty years, ten to serve, with credit for time served. This appeal followed.

Judicial participation in the plea negotiation process is prohibited by Georgia Uniform Superior Court Rule (“USCR”) 33.5 (A) and as a constitutional matter when the interjection of the plea court is to such a degree as to render a guilty plea involuntary McDaniel v. State, 271 Ga. 552, 553-54 (2) (522 SE2d 648) (1999); Hayes, 337 Ga. App. at 280; McCranie v. State, 335 Ga. App. 548, 551 (2) (b) (782 SE2d 453) (2016); Skomer v. State, 183 Ga. App. 308, 309-10 (358 SE2d 886) (1987). In particular, “[c]omments by the trial judge that reinforce the unmistakable reality that a defendant who rejects a plea offer and instead opts to go to trial will likely face a greater sentence have been held by this Court to unlawfully insert the judge into the plea process.” Gibson v. State, 281 Ga. App. 607, 609 (1) (636 SE2d 767) (2006). Accordingly,

[t]his Court has recognized “an enormous difference between simply being aware or even being reminded by the [S]tate that rejection of a plea proposal may result in a greater punishment and being told by the trial judge that a rejection of a plea proposal will result in greater punishment in the event of a conviction by a jury.” (Emphasis in original.) Skomer, 183 Ga. App. at 310.

Id. When this occurs,

[d]ue to the force and majesty of the judiciary, a trial court’s participation in the plea negotiation may skew the defendant’s decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court’s stated inclination as to sentence.

McCranie, 335 Ga. App. at 551-52 (2) (b).

Although this is a close case, an examination of the trial judge’s remarks in context shows that she did not improperly interject herself into the negotiation process, nor did her comments render Winfrey’s plea involuntary The trial judge never explicitly told Winfrey that he would be facing a longer sentence if he rejected the State’s offer and went to trial. Instead, the trial judge correctly pointed out that by rejecting the State’s offer, Winfrey was giving up his opportunity to negotiate the charges on which he might be adjudicated guilty and sentenced, and instead his sentence would be based on the jury’s verdict. Likewise, the trial judge correctly pointed out that his parole eligibility would not be a factor in her sentencing. These comments, taken in isolation and in sum, did not rise to the level of improper interference by the trial judge in the plea negotiations such that Winfrey’s plea was no longer voluntary. Works v. State, 301 Ga. App. 108, 111-12 (3) (686 SE2d 863) (2009) (no improper interference with plea negotiations where judge made no statement concerning sentence that would be imposed and did not threaten defendant with a stricter sentence if he went to trial instead of pleading guilty).

We take this opportunity, however, to caution that trial judges should be cognizant of and seek to avoid undue and impermissible involvement in the plea negotiation process so as to avoid involuntary pleas. Although, as we have noted, the trial judge did not explicitly tell Winfrey that he would face a harsher sentence if he went to trial, she strongly suggested that result by referring to a recent sentence she had imposed for gang-related charges and confirming her reputation as a judge who sentences harshly. Under our current precedent, such intimations have been upheld even though they appear to violate the spirit of USCR 33.5 (A) because those general comments did not address how the trial judge would sentence in Winfrey’s particular case. That being said, we do not condone those comments and emphasize that the better practice when allowing the State to put such plea offers on the record would be to undertake that the defendant has been notified of the terms offered, understands the scope of the offer, and is aware of the charges against him and the potential sentence. Compare USCR 33 et seq. (setting out certain mandates a trial court must follow after a defendant decides to plead guilty to ensure the voluntariness of his plea); Smith, 287 Ga. at 394 (2) (a) (same).

Judgment affirmed.

Miller, P. J., and McFadden, P. J., concur.

Decided January 17, 2017

Reconsideration denied February 23, 2017

Steven H. Sadow, for appellant.

D. Victor Reynolds, District Attorney, Donald R Geary, Michael S. Carlson, John R. Edwards, Assistan t District Attorneys, for appellee.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, amici curiae.

       In addition to the Street Gang Act charges, Winfrey was also indicted for multiple counts of violating the Racketeer Influenced and Corrupt Organizations Act (OCGA § 16-14-1 et seq.) (“RICO”), multiple counts of aggravated assault, two counts of criminal damage to property in the first degree, and possession of a firearm during the commission of a felony. These charges were nolle prossed as part of Winfrey’s negotiated plea.

       A brief of amici curiae has been filed by the Georgia Gang Investigators Association and the Office of the District Attorney for the Brunswick Judicial Circuit, which for the most part merely reinforces the jurisdictional arguments advanced by the State.

       This observation appears to obviate any concerns that allowing a direct appeal from a guilty plea somehow confers an advantage on such direct-appeal appellants over those who choose to first file a motion to withdraw and then appeal any adverse ruling to the proper appellate court.

       The argument advanced by the amici that we are confined in such instances to the consideration of purely legal questions is belied by numerous appellate cases, some of which are cited in this opinion. While our appellate courts routinely note that a motion to withdraw may be required for certain claims, most notably claims of ineffective assistance of plea counsel, because those claims cannot usually be decided based solely on the plea hearing transcript and instead will almost always require the development of a post-plea evidentiary record, see, e.g., Green v. State, 291 Ga. 506, 507 (2) (731 SE2d 357) (2012); Coleman v. State, 278 Ga. 493, 494 (2) (604 SE2d 157) (2004); Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219) (1997), neither the State nor the amici have cited us to any cases in which our appellate courts have refused to consider a claim of improper trial court plea participation because the appellant did not first file a motion to withdraw in the trial court. To the contrary, we have specifically considered such claims on direct appeal. Further, their reliance on cases in which we have found waiver when a motion to withdraw was in fact filed, but the plea participation claim was not raised, does nothingto advance that position. See Coleman v. State, 337 Ga. App. 732, 738 (3) (788 SE2d 826) (2016). And, as our Supreme Court has noted, a “claim that [a] plea [is] not knowingly and voluntarily entered is not subject to Georgia’s customary procedural default rule, which holds that claims not raised at trial. . . are waived, because the rule does not apply to a claim that a conviction or sentence is void.” Smith v. Magnuson, 297 Ga. 210, 212 n.3 (773 SE2d 205) (2015).

       The State also posits that Winfrey’s notice of appeal is insufficient because it does not “point to any purported malady” in the appealed judgment and does not reference a motion to withdraw his plea. However, it is not necessary that an appellant set out his claims of error in his notice of appeal, and there is no authority for us to dismiss an appeal on this basis. See OCGA § 5-6-37 (setting out required contents of notice of appeal). Further, since a motion to withdraw was not filed, the notice of appeal certainly was not deficient for failing to mention it.

       That rule states: “The trial judge should not participate in plea discussions.'

       We also cannot discern the tone used by the trial judge, but telling Winfrey to “be my guest” if he wanted to “go up against” a judge with her reputation supports his arguments.

       Compare Pride v. Kemp, 289 Ga. 353 (711 SE2d 653) (2011) (trial court’s participation in plea negotiations was so great as to render the plea involuntary where she repeatedly advised the defendant that she would impose a longer sentence if he went to trial and would prefer that defendant go to trial so she could sentence him as she would really like to); Hayes, 337 Ga. App. at 281 (trial court impermissibly participated in plea negotiations when it effectively advised the defendant that he would not probate or suspend any portion of his sentence by telling him he would serve every day of his sentence in jail); McCranie, 335 Ga. App. at 552 (2) (b) (trial court not only rejected proposed plea as too lenient, but repeatedly indicated he wanted to sentence defendant to a longer sentence, and wanted him to withdraw his plea so he could preside over his trial); Gibson, 281 Ga. App. at 609 (1) (trial court improperly participated in plea negotiations by indicating that he would not give the defendant the same sentence considerations if he opted for a trial instead of accepting the plea proposal); Cherry v. State, 240 Ga. App. 41, 43-44 (2) (522 SE2d 540) (1999) (physical precedent only) (finding appellant was unduly influenced to plead guilty by the totality of the judge’s comments, which included comments at a pretrial hearing that the initial plea recommendation was too lenient coupled with later comments that a decision by appellant to proceed to trial would be unwise); Skomer, 183 Ga. App. at 309-310 (reversing denial of motion to withdraw pleas where substantial likelihood existed that appellants were unduly influenced by judge’s comments that he would consider giving them probation if they pled guilty but not if they were found guilty by a jury).


author: Ellington, Presiding Judge.

text:
    A16A2186.
    CLARY et al. v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY.
    (795 SE2d 757)
   Ellington, Presiding Judge.

John and Cathy Clary filed this action in the Superior Court of Putnam County against their homeowners’ insurance carrier, Allstate Fire and Casualty Insurance Company, asserting multiple claims in tort and contract based on circumstances surrounding Allstate’s handling of their claim against their homeowners’ insurance policy. Allstate defended the action, inter aha, on the basis that it had satisfied its obligations under the policy by tendering the amount determined to be due by appraisers selected pursuant to the policy. Allstate filed a motion for entry of judgment on the appraisal award and motions for partial summary judgment as to the Clarys’ claims for inceptive fraud, breach of implied contract, negligence, emotional distress, and attorney fees. The Clarys filed a cross-motion for partial summary judgment on their claim for a declaratory judgment that the appraisal award was not final. After a hearing, the trial court granted Allstate’s motion for judgment on the appraisal award and its motions for partial summary judgment; the trial court denied the Clarys’ cross-motion. The Clarys appeal, and, for the reasons explained below, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart u. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). The relevant facts that follow are undisputed unless otherwise noted.

The Clarys obtained a homeowners’ insurance policy with Allstate in October 2009 for their lakeside residence in Eatonton. Section 1.4 of the policy provides:

Our Settlement Options. In the event of a covered loss, we have the option to:
a) repair, rebuild or replace all or any part of the damaged, destroyed or stolen property with property of like kind and quality within a reasonable time; or
b) pay for all or any part of the damaged, destroyed or stolen property as described in Condition 5 “How We Pay For a Loss.”
Within 30 days after we receive your signed, sworn proof of loss we will notify you of the option or options we intend to exercise.

Section 1.7 provides:

Appraisal. If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand, each party must select a competent and impartial appraiser and notify the other of the appraiser’s identity within 20 days after the demand is received. . . .
The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to you and to us the amount agreed upon shall be the amount of the loss. . . .

On August 3, 2010, lightning struck the Clary residence, resulting in a fire, which was extinguished by firefighters. The fire and ensuing water penetration caused severe damage to the residence and the personal property it contained. The Clarys reported the fire to their Allstate insurance agent, Chris Jackson, on August 3, 2010. Jackson called Paul Davis of Restoration of Athens to the home to begin water mitigation. On August 5, 2010, Matt Hunter, an Allstate adjuster, met with the Clarys to view the damage to their home. The parties agree that the lightning fire that partially destroyed the premises was a covered occurrence under the policy. Hunter advised the Clarys that “if it were my property I would let Allstate handle it all.” According to the Clarys, Hunter terminated Paul Davis from the mitigation work, hired Elite Response, Inc., to perform that work, hired Icon Restoration, Inc., to perform the repairs, and supervised the repair and rebuilding of the residence until a dispute arose regarding the measures necessary to remediate mold that had formed as a result of the fire and water damage.

When the Clarys reported to Allstate that they thought mold was present at the property, Allstate hired Marge Philbin, an industrial hygienist, to inspect the property. Although there was no dispute the mold was covered under the policy, the parties could not agree on how to remediate the problem. On December 30, 2010, Allstate made a written demand for an appraisal. Allstate selected Larry Masters, and the Clarys selected Chris Dawkins. The appraisers obtained a repair estimate prepared by Icon and used that estimate in determining the amount to allow for structural repairs. The final structural repair estimate by Icon was $329,664.75. The appraisers obtained a protocol for mold remediation from Elizabeth Witten, a certified microbial consultant, agreed to by Allstate and the Clarys. In determining the amount to allow for mold remediation, the appraisers relied on an estimate from Luke Smith of ServiceMaster who advised the appraisers he would complete the remaining mold remediation for $95,000. The appraisers set the total mold remediation loss at $114,546.44, which reflected remediation work already performed.

On January 20, 2012, the appraisers reached a final agreement and issued an Appraisal Agreement in the following amounts:

Section I, Mitigation Loss $42,572.33
Section II, Mold Remediation Loss $114,546.44
Section III, Structural Loss $329,764.75
Total
$486,883.52

Once the appraisers issued the award, Allstate issued checks to the Clarys in the amount of the award. The Clarys returned the checks to Allstate and demanded that Allstate complete the restoration. Allstate refused, and the Clarys ultimately deposited the checks after advising Allstate that they would use the proceeds to mitigate the damages they would suffer from Allstate’s abandonment of the restoration.

1. The Clarys contend that the trial court erred in granting Allstate’s motion for judgment on the appraisal award and in denying their cross-motion for partial summary judgment regarding the finality of the appraisal award. They contend that when the privilege to rebuild or repair property is reserved in a policy, and the insurer asserts that privilege and begins repair and restoration, the insurer cannot later abandon the restoration and change its election to paying for the loss. In addition, they contend that a condition precedent to Allstate’s right to demand an appraisal, specifically that there was a dispute as to the amount of the loss, was not present, arguing that the amount of loss was no longer an issue once Allstate elected to repair and restore the property. They argue that the appraisal award cannot be considered final because the scope of the appraisal was not determined prior to the commencement of the appraisal process and because the real issue was coverage vel non, which is not the proper subject for an appraisal.

(a) In arguing that, once an insurer begins a restoration, it cannot later change its election to paying for the loss, the Clarys cite Mason v. Tennessee Farmers Mut. Ins. Co., 640 SW2d 561 (Tenn. Ct. App. 1982). In that case, the Court of Appeals of Tennessee stated that, under Tennessee law,

[wjhere an insurer properly exercises its option [in a motor vehicle policy] to repair damaged property, it tacitly represents that it will substantially restore the vehicle as to function, appearance and value. Under these circumstances, the insured has no choice but to acquiesce and [the] insurer is bound to repair the property and restore it to its former condition.

Id. at 567 (II). From this the Clarys would have us extrapolate that, under Georgia law, once an insurer exercises its option to repair damaged property, it loses the right to exercise the alternative option under the policy of paying for the insured’s loss. This misstates the holding. The Tennessee court held that the insurer did not satisfy its obligation under the replacement contract when it elected to repair the insured’s water-damaged truck, where the evidence showed that the repairs the insurer proposed to undertake could not restore the truck to its former condition. Id. The Tennessee court emphasized that, where an insured’s property cannot be substantially restored to its fair market value immediately prior to the loss, “the [insurer’s] sole method of complying with the insurance contract is to pay to the insured the loss of value.” (Citation omitted.) Id. at 566 (II).

The holding in Mason u. Tennessee Farmers Mut. Ins. Co. is generally consistent with Georgia law regarding homeowners’ insurance. If an insurer elects to repair a damaged home, it satisfies its obligations under the contract only if it restores the property to its former, pre-loss condition. See Carter v. Allstate Ins. Co., 197 Ga. App. 738, 741-742 (2) (399 SE2d 500) (1990) (The insurer that chooses the option to repair the property “assume[s] a duty to restore the home to a habitable condition” and is contractually obligated “to perform those repairs (or to see to it that they were performed) in a skillful and workmanlike manner.”) (citations omitted). Furthermore, even when an insurer restores damaged real property to its pre-loss condition , it may also be liable to pay for any post-repair diminution in value. Royal Capital Dev. v. Maryland Cas. Co., 291 Ga. 262, 265 (1) (728 SE2d 234) (2012). This flows from the principle that Georgia law favors full recovery, that is, that an injured party be placed, “as nearly as possible, in the same position it would have been if the injury had never occurred.” (Citations omitted.) Id. at 264 (1).

Based on the foregoing, we conclude that Georgia law does not support the Clarys’ argument that, having elected to repair the property, Allstate breached the contract by abandoning the restoration and instead electing to pay the Clarys the amount of the loss. Carter v. Allstate Ins. Co., 197 Ga. App. at 742 (“Allstate was entitled under the terms of the policy either to pay the [homeowners] for the fire damage or to repair the damage itself[.]”). In the same vein, we conclude that the Clarys’ argument that, once Allstate elected to repair the property, the amount of loss was no longer an issue is not supported by Georgia law.

(b) In addition, the Clarys’ argument that the real issue determined by appraisal was coverage vel non, which is not the proper subject for an appraisal, is not supported by the record. The record is undisputed that Allstate never denied coverage on the basis that the fire and water damage was not a covered event, nor on the basis that the policy did not cover mold remediation. The record is undisputed that the appraisers undertook to determine the cost of all repairs necessary to restore the property to its pre-loss value, including mold remediation.

2. The Clarys contend that the trial court erred in granting Allstate’s motion for judgment on their claim that Allstate negligently performed, supervised, and managed the restoration of their home. They contend that, by virtue of Allstate’s election to rebuild, it had a duty of care, apart from its contractual duties, to perform the repair and rebuild work in a skillful and workmanlike manner.

In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty The legal duty is the obligation to conform to a standard of conduct under the law for the protection of others against unreasonable risks of harm. This legal obligation to the complaining party must be found, the observance of which would have averted or avoided the injury or damage; the innocence of the plaintiff is immaterial to the existence of the legal duty on the part of the defendant in that the plaintiff will not be entitled to recover unless the defendant did something that it should not have done, i.e., an action, or failed to do something that it should have done, i.e., an omission, pursuant to the duty owed the plaintiff under the law.

(Citations and punctuation omitted.) Rasnick v. Krishna Hospitality, 289 Ga. 565, 566 (713 SE2d 835) (2011). Thus, it is not enough for a plaintiff to show that the defendant owed the plaintiff a duty of care; the plaintiff must specify the conduct that constituted a breach of that duty, that is, what the defendant did that it should not have done.

In their complaint, in responding to Allstate’s motion for summary judgment, and now on appeal, the Clarys assert in a conclusory manner that Allstate negligently performed, supervised, and managed the restoration of their home. The Clarys have not identified any restoration work performed by Allstate’s agents that was not performed in a skillful and workmanlike manner. To the extent the Clarys base their negligence claim on Allstate’s exercising its option to pay the value of the loss, rather than to undertake to repair and rebuild, such conduct does not constitute the breach of any duty Tate v. Aetna Cas. & Sur. Co., 149 Ga. App. 123, 124-125 (253 SE2d 775) (1979) (Georgia does not recognize a claim for negligent handling of an insurance claim.).

3. The Clarys contend that the trial court erred in granting Allstate’s motion for judgment on their claim for breach of an implied contract. The Clarys argue that, when Allstate initially opted to repair the damage to their home, a new agreement arose between them under which Allstate assumed a duty to restore the home to a habitable condition. They contend that Allstate breached that implied agreement when it abandoned its efforts to repair the home and instead insisted on the appraisal process.

Under Georgia law, “[tjhere cannot be an express and implied contract for the same thing existing at the same time between the same parties.” (Punctuation and footnote omitted.) Ga. Real Estate Properties v. Lindwall, 303 Ga. App. 12, 15 (3) (692 SE2d 690) (2010). Therefore, where there exists an express agreement covering the same subject matter, the courts will not imply a contract. Id. As noted in Division 1, supra, if an insurer repairs damaged property, in lieu of paying for the loss, it is obligated under the insurance contract to perform those repairs in a competent manner. Carter v. Allstate Ins. Co., 197 Ga. App. at 741-742 (2). Because an express agreement covered the same subject matter, the Clarys cannot recover on any implied contract.

4. The Clarys contend that the trial court erred in granting Allstate’s motion for judgment on their claim for inceptive fraud. “To establish a claim for fraud in the inducement, or inceptive fraud to enter into a contract, a plaintiff must prove both that the defendant failed to perform a promised act and that the defendant had no intention of performing when the promise was made.” (Citation omitted.) Nash v. Roberts Ridge Funding, 305 Ga. App. 113, 116 (1) (699 SE2d 100) (2010). See also Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 152 (2) (304 SE2d 365) (1983) (“An action for fraudulent inducement can be made out... [by] showing] that the defendant... made promises as to future events with the present intention not to perform or with the knowledge that the future event would not occur.”) (citations omitted).

Fraudulent intent at the time of contracting can ... be inferred based on subsequent conduct of the defendant that is unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith. Actionable fraud, however, does not result from a mere failure to perform promises made. Otherwise any breach of a contract would amount to fraud.

(Citations and punctuation omitted.) Gibson Technical Svcs. v. JPay, Inc., 327 Ga. App. 82, 84 (755 SE2d 377) (2014).

Like their claim for breach of an implied contract, the Clarys’ claim for inceptive fraud is premised on their position that a new agreement arose between them and Allstate under which Allstate assumed a duty to restore the home to a habitable condition. See Division 3, supra. The Clarys contend that there is evidence that, after the fire, Allstate promised to repair their home while intending not to fulfill that promise. The Clarys do not specify, however, what Allstate’s allegedly fraudulent promise to repair induced them to do. Not only was Allstate’s duty after the fire to restore the Clarys’ home competently (or to pay for the loss) established by the insurance contract, but the Clarys’ own duties following the loss arose from the policy. Because the Clarys do not allege that they agreed to perform any act because of Allstate’s allegedly fraudulent promise, they failed to make a claim for fraudulent inducement. Gibson Technical Svcs. v. JPay, Inc., 327 Ga. App. at 85.

5. The Clarys contend that the trial court erred in granting Allstate’s motion for summary judgment on their claim for emotional distress.

Georgia has long recognized a cause of action for intentional infliction of emotional distress. However, the burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one. To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.

(Citation and punctuation omitted.) Thompson-El v. Bank of America, 327 Ga. App. 309, 312 (3) (759 SE2d 49) (2014).

As evidence of outrageous conduct, the Clarys identify Hunter’s alleged “refus[al] to make accommodations for [John] Clary’s susceptibility to mold conditions,” Allstate’s alleged “misrepresentations of the Clarys’ rights under the policies,” and Allstate’s allegedly improper invocation of the appraisal process. But a “mere breach of a valid contract amounting to no more than a failure to perform in accordance with its term[s] does not constitute a tort or authorize the aggrieved party” to pursue a tort action, even if the alleged breach caused great hardship. (Citation and punctuation omitted.) Tate v. Aetna Cas. & Sur. Co., 149 Ga. App. at 124-125 (Where the plaintiff’s claim arose solely from the defendant’s alleged breach of a contractual duty to cover his insurance claim, the plaintiff could not recover damages for emotional distress.). We conclude that the trial court did not err in granting Allstate’s motion for summary judgment because the Clarys failed to allege any acts by the defendants that were extreme and outrageous or that any emotional distress on their part was so severe that no reasonable person could be expected to endure it. Thompson-El v. Bank of America, 327 Ga. App. at 312-313 (3) (A lender’s conduct in foreclosure proceedings against defaulting borrower did not amount to extreme and outrageous acts tending to cause emotional distress so severe that no reasonable person could be expected to endure it.); Massih v. Mulling, 271 Ga. App. 685, 687-688 (2) (610 SE2d 657) (2005) (An employer’s alleged breach of an oral contract to transfer an ownership interest in the company to an employee would not support the employee’s claim for intentional infliction of emotional distress.); Frank v. Fleet Finance, 238 Ga. App. 316, 318 (518 SE2d 717) (1999) (A lender’s conduct in failing to close on a contract for the sale of a residence to its current tenant and then evicting him did not support the tenant-buyer’s claim for intentional infliction of emotional distress.); Lincoln Nat. Life Ins. Co. v. Davenport, 201 Ga. App. 175, 176 (410 SE2d 370) (1991) (“An insurer’s failure to pay benefits under an insurance policy does not, as a matter of law, rise to the level of such outrageousness requisite to a cause of action for intentional infliction of emotional distress.”) (citation omitted).

6. The Clarys contend that the trial court erred in granting Allstate’s motion for summary judgment on their claim for attorney fees pursuant to OCGA § 13-6-11. Specifically, they contend that their claims are not based exclusively on an alleged bad faith refusal to pay their insurance claim, but are also based on Allstate’s failure to repair their home after electing to do so, and therefore they are not limited to seeking fees under OCGA § 33-4-6.

An award of attorney fees and other expenses of litigation is authorized pursuant to OCGA § 13-6-11, where (1) the plaintiff specially pleads and prays for such an award, and (2) the finder of fact finds that the defendant acted in bad faith in the underlying transaction or that, after the transaction on which the cause of action is predicated, the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense. But expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless other elements of damages are recoverable. Lincoln Nat. Life Ins. Co. v. Davenport, 201 Ga. App. at 176; Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988); Basic Four Corp. v. Parker, 158 Ga. App. 117, 121 (2) (279 SE2d 241) (1981). Because Allstate has prevailed on each of the substantive counts of the Clarys’ complaint, it necessarily follows that it is also entitled to summary judgment on the claim for attorney fees. Connell v. Houser, 189 Ga. App. at 160 (5).

Decided February 2, 2017

Reconsideration denied February 23, 2017

DuBose Law Group, C. Wilson DuBose, Jennifer L. Pridgeon, Matthew R. Frick, for appellants.

Webb, Zschunke, Neary & Dikeman, Marvin D. Dikeman, Melissa C. Patton, for appellee.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       The Clarys also asserted claims against other defendants, which are not at issue in this appeal.

       See OCGA § 33-32-3 (explaining that the “privilege of rebuilding or reinstating property sustaining loss or damage shall not exist unless it is reserved in the policy”).

       Allstate contends that Hunter only recommended that the Clarys hire Elite Response and that John Clary actually hired Elite Response, as the general contractor, as well as Icon Restoration, and signed the contract guaranteeing payment. Allstate contends that John Clary personally supervised the work.

       Furthermore, the Clarys’ argument that the scope of the appraisal was not determined prior to the commencement of the appraisal process is not supported by the record. Dawkins, the Clarys’ chosen appraiser, understood the appraisers’ task to be ‘to identify and put a dollar amount on any and all damage to the property” and to determine the amount of the loss. Masters, Allstate’s chosen appraiser, testified that their task was to arrive at a total loss amount.

       The Clarys contend that
      Allstate’s Matt Hunter testified that he did not intend to repair and rebuild the Clary home, which at the very least creates a fact issue as to whether Allstate intended to fulfill its promise to rebuild when the promise was made. Hunter Deposition, R. [Appellate Record] Vol. 4, pp. 449-450 (showing that Mr. Hunter never intended to repair and rebuild the home despite his actions in hiring the contractors and directing the restoration process).
      We have revie wed the referenced portion of the transcript and find that it does not support the Clarys’ characterization.

       Cf. Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991) (Evidence that an employer deliberately set out to retaliate against its employee for testifying against the employer, which retaliation included subjecting her to abuse by her supervisor and causing her severe emotional pain could meet the threshold which reasonable persons would consider outrageous and extreme conduct sufficient to subject the company to damage for intentional infliction of emotional distress.); Turnage v. Kasper, 307 Ga. App. 172, 183-184(1) (c) (704 SE2d 842) (2010) (Where the defendants repeatedly photographed and publicly humiliated a neighbor with whom they had a dispute, and schemed to have the neighbor arrested for aggravated stalking and incarceration without bail, knowing that she walked by their property merely to pick up her children from their designated bus stop, such conduct could be considered by a jury to be extreme and outrageous.).

      In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer.
      OCGA § 33-4-6 (a). Because the General Assembly has provided in OCGA § 33-4-6 a specific procedure and a limited penalty for bad faith failure to pay insurance claims, such limited penalty and procedure were intended by the legislature to be the exclusive procedure and penalty, and recovery under general penalty provisions such as OCGA § 13-6-11 is not allowed for bad faith failure to pay insurance claims. Balboa Life & Cas. v. Home Bu ilders Finance, 304 Ga. App. 478, 483 (3) (697 SE2d 240) (2010); United Svcs. Auto. Assn. v. Carroll, 226 Ga. App. 144, 149 (5) (486 SE2d 613) (1997); Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (2) (448 SE2d 275) (1994).