FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 8, 2019
In the Court of Appeals of Georgia
A19A1282. COLLINS v. THE STATE.
MERCIER, Judge.
Following a jury trial, Anthony Collins was found guilty of child molestation
and enticing a child for indecent purposes.1 After his conviction, Collins filed a
motion for new trial, which the trial court denied. Collins appeals, pro se, asserting
seven enumerated errors regarding ineffective assistance of counsel, his recidivist
sentence, evidentiary rulings and his right to self-representation. For the following
reasons, we affirm.
1
Collins was found not guilty of rape, two counts of child molestation and
statutory rape.
Viewed in the light most favorable to the jury’s verdict, the evidence at trial
showed the following. See Green v. State, 302 Ga. 816, 817 (809 SE2d 738) (2018).
On July 28, 2016, the victim,2 the victim’s mother and Collins were at the victim’s
aunt’s house, where the victim lived. Collins asked the victim and her mother to come
outside, where he told them that he would give them a phone if they had sex with
him. The victim refused to have sex with Collins. Collins then asked them to go to an
abandoned house next door, which they reluctantly did around midnight. After they
entered the abandoned house, Collins had sexual intercourse with the mother in front
of the victim. He then touched the victim on her breasts, vagina and buttocks with his
hands underneath her clothing. Collins held the victim down, removed her clothing,
and had sexual intercourse with her without her consent. After the assault was over,
the victim left and, as she was leaving, the victim’s mother and Collins were engaged
in sexual intercourse.
The victim returned home and fell asleep on her aunt’s bed. A few days later,
the victim revealed to her aunt that she had had sex with Collins in the abandoned
house next to their house. The victim, her aunt and her aunt’s pastor reported the
2
The victim was 14 years old at the time of the crimes.
2
assault to the Chief of Police in Vienna, Georgia. At trial, the victim positively
identified Collins as the person who assaulted her.
The victim’s aunt testified that the victim’s mother was attending a day
program at “[t]he Mentally Retarded Center in Cordele” when they reported the
crimes to the police, that the mother has “mental issues,” and that at the time of trial
the mother was living at the State Mental Hospital in Milledgeville. The mother was
indicted with Collins as a co-defendant. However, she was granted immunity in
exchange for her testimony against Collins at trial.
Following Collins’s conviction, his trial counsel filed a motion for new trial.
Thereafter, Collins filed a motion to represent himself, which the trial court granted.
Collins then filed an amended motion for new trial and represented himself at the
hearing on his motion.
Collins appeals the trial court’s denial of his motion for new trial, claiming that
his sentencing as a recidivist was void because the State failed to prove that he was
represented by counsel when one of his prior convictions was entered; his trial
counsel was ineffective in his handling of Collins’s alibi defense and by failing to
adequately argue a motion for directed verdict; the trial court erred by admitting a
prior statement from the victim’s mother; and his right to self-representation
3
following his conviction was violated because he was not furnished copies of the
record.
1. Collins claims that one of his prior convictions, in which he pled guilty to
a felony burglary charge as a first offender and then had his probation revoked, was
void for the purposes of recidivist sentencing. “Whether a defendant was properly
sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review.” Frey
v. State, 338 Ga. App. 583, 586 (3) (790 SE2d 835) (2016) (citation omitted).
The record shows that the State gave Collins’s counsel notice of its intent to
introduce evidence at sentencing in aggravation of punishment, pursuant to OCGA
§ 17-10-7. At sentencing, the State presented certified copies of the indictment, guilty
plea sheet, petition to revoke probation, order of adjudication and sentence on the
prior offense in question, the burglary conviction. In his amended motion for new
trial, Collins argued that the State failed to prove that he had been represented by
counsel in connection with that conviction.
“Once [Collins] asserted his objection, the State bore the burden of establishing
the validity of the convictions it relied upon in arguing for recidivist treatment[.]”
Tanner v. State, 230 Ga. App. 77, 79 (4) (495 SE2d 315) (1997) (citations omitted).
4
[T]he State bears the burden of showing both the existence of the prior
guilty pleas and that the defendant was represented by counsel when he
entered the pleas. If the defendant was not represented by counsel, the
State can meet its burden by showing that the defendant waived this
right. The State can do this by introducing a transcript of the plea
hearing, a docket entry or another document affirmatively showing that
the right to counsel was waived. Once the State has shown that the
defendant either was represented by counsel or waived the right to
representation, a “presumption of regularity” attaches to the plea
proceedings and the burden shifts to the defendant to show any alleged
irregularities.
Beck v. State, 283 Ga. 352, 353-354 (2) (658 SE2d 577) (2008) (citation omitted).
At the motion for new trial hearing, the trial court admitted into evidence the
transcript of Collins’s guilty plea hearing on the burglary charge. The transcript
established that Collins expressly waived his right to counsel after the trial court
advised him of his right to an attorney. Although Collins was sentenced as a first
offender on the burglary charge, his probation was revoked two years later due to his
violations of the conditions of his probation. See Land v. State, 291 Ga. App. 617,
617-618 (662 SE2d 368) (2008) (“[A] defendant’s first offender sentence does not
become a ‘conviction’ as defined under Georgia criminal law, and cannot be used as
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a basis for recidivist sentencing in a subsequent criminal action, until the probation
is either revoked or discharged.”) (citations omitted).
Collins claims that the State failed to show that he was represented by counsel
at his probation revocation hearing, after which he was adjudicated guilty of the
burglary charge and re-sentenced. However, “a probationer has no Sixth Amendment
right to counsel at a revocation proceeding. A probationer has only a more limited due
process right to counsel under the Fourteenth Amendment.” Vaughn v. Rutledge, 265
Ga. 773, 774 (1) (462 SE2d 132) (1995) (citation and punctuation omitted). “[T]he
appointment of counsel to represent a probationer must be determined on a
case-by-case basis and the presence and participation of counsel will probably be both
undesirable and constitutionally unnecessary in most revocation hearings.”3 Id. at 774
(2) (citation and punctuation omitted).
The petition for an adjudication of guilt and imposition of sentence regarding
Collins’s probation revocation, which he signed, contained an acknowledgment
stating: “I am aware that I may employ legal representation and I have the right to
3
Of note, Collins’s probation was revoked on June 7, 2001, prior to the
enactment of OCGA § 17-12-23 (a) (2), which became effective on January 1, 2005
and entitles indigent persons to representation by the circuit public defender at the
probation revocation hearing in a superior court. See Banks v. State, 275 Ga. App.
326, 327 (fn. 3) (620 SE2d 581) (2005).
6
request an attorney be appointed for me. However, the Court is under no legal
obligation to appoint such an attorney at said hearing.” Collins also admitted at the
hearing to committing multiple crimes while on probation and that he failed to
complete his probation requirements. See Banks, supra at 329 (the defendant’s
“admission to having committed another crime creates the very sort of situation in
which counsel need not ordinarily be provided” in a probation revocation hearing.)
(citation and punctuation omitted). The record demonstrates that Collins was apprised
of his right to request an attorney, he admitted to committing the other crimes and he
fails to point to any Fourteenth Amendment due process violations. See Vaughn,
supra. Collins has not established that the trial court erred in considering his prior
felony conviction for the purpose of recidivist sentencing under OCGA § 17-10-7.
Accordingly, the trial court did not err in denying Collins’s motion for new trial
regarding his claim that the trial court erred by sentencing him as a recidivist. See
generally Beck, supra at 354; and Land, supra at 618.
2. Collins claims that his trial counsel was ineffective for failing to timely file
notice of his alibi defense and to adequately inform him that he should take the stand
in order to assert an alibi defense; and to adequately argue his motion for directed
verdict of acquittal.
7
To succeed on a claim that counsel was constitutionally
ineffective, [Collins] must show both that his attorney’s performance
was deficient, and that he was prejudiced as a result. Under the first
prong of this test, counsel’s performance will be found deficient only if
it was objectively unreasonable under the circumstances and in light of
prevailing professional norms. And under the second prong, prejudice
is demonstrated only where there is a reasonable probability that, absent
counsel’s errors, the result of the trial would have been different. A
“reasonable probability” is defined as a probability sufficient to
undermine confidence in the outcome. Failure to satisfy either prong .
. . is sufficient to defeat a claim of ineffective assistance, and it is not
incumbent upon this Court to examine the other prong.
Green, supra at 817-818 (2) (citations and punctuation omitted). “In reviewing a
lower court’s determination of a claim of ineffective assistance of counsel, an
appellate court gives deference to the lower court’s factual findings, which are upheld
unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.”
Freeman v. State, 278 Ga. 349, 350 (2) (603 SE2d 214) (2004) (citation omitted).
(a) Collins argues that he received ineffective assistance of trial counsel
because his attorney failed to file notice of an alibi defense at least ten days prior to
trial. See OCGA § 17-16-5 (a). However, Collins’s former girlfriend did testify at trial
for the defense and provided him with an alibi. She testified that Collins arrived at her
8
house at approximately 9:00 p.m. on the night of the assault and that he did not leave
her house until the following morning. Therefore, Collins fails to demonstrate any
prejudice suffered by the late filing. See generally Jones v. State, 266 Ga. App. 679,
682-684 (2) (598 SE2d 65) (2004).
As to Collins’s claim that he was harmed by being inadequately informed
regarding a potential benefit from testifying on his own behalf as to his alibi defense,
he failed to proffer evidence at his motion for new trial hearing showing what he
would have said had he testified at trial. Furthermore, at the close of the State’s
evidence the trial court advised Collins of his right to testify on his own behalf. The
court then went into recess, during which time Collins conferred with his trial
counsel. Following the recess, Collins told the court that he did not want to testify.
Having failed to present more than bare assertions that his testimony would have
supported his alibi defense, Collins cannot show that his counsel was ineffective for
allegedly failing to adequately inform him of a possible advantage of testifying on his
own behalf regarding his alibi. See generally Gadson v. State, 252 Ga. App. 347, 352
(11) (b) (556 SE2d 449) (2001).
(b) Collins argues that his trial counsel was ineffective because he failed to
“utter any reason or cause” to support his motion for directed verdict of acquittal.
9
However, the trial transcript shows that when Collins’s trial counsel made the motion
for directed verdict, he stated that the evidence presented by the State was insufficient
to support the verdict. The trial court denied the motion as to all of the counts, with
the exception of Count 4, the statutory rape charge, for which the court reserved
ruling. Following the close of the evidence from defense, counsel for Collins again
moved for directed verdict as to all counts which the trial court denied (including
Count 4).
Again, Collins has failed to show any prejudice from the alleged errors. In light
of the evidence presented at trial as discussed above, additional argument by trial
counsel to support the motion was “unlikely to have swayed the trial judge.” Medrano
v. State, 315 Ga. App. 880, 883 (2) (729 SE2d 37) (2012).
3. In three enumerated errors, Collins claims that the trial court erred by
admitting State’s Exhibit 7, an audio recording of an interview of the victim’s mother.
We review the trial court’s ruling on the admissibility of evidence for a clear abuse
of discretion. Cruz v. State, 347 Ga. App. 810, 813 (2) (821 SE2d 44) (2018).
At trial, the victim’s mother testified that Collins asked her and the victim to
go outside because he had a phone and a necklace for her. However, once they were
outside Collins did not give her a phone, and instead he asked the victim and her
10
mother to go into the vacant house. After they entered the vacant house, Collins told
the victim to remove her clothes and he began to have sexual intercourse with her.
The mother testified that she told Collins to get off of the victim, but that she did not
want to hit him because then she would “go to jail.” She testified that she “just went
and called the police” on a cell phone and reported what happened.
The prosecutor then asked the mother if she has problems with her memory, to
which she said she did. She testified that she was interviewed by the police chief
closer in time to when the assault happened, and her memory of the incident was
better at that time than at the time of the trial.
During the police chief’s testimony, the prosecutor tendered into evidence the
audio recording of the mother’s interview. Collins’s counsel objected arguing that the
mother was “declared mentally incompetent” to stand trial and that he had no way to
effectively cross-examine her on her out-of-court statement. The State argued that
witnesses are presumed to be competent, that the interview was a prior inconsistent
statement, and that the mother was available for cross-examination. The trial court
admitted the recording over objection, but ruled that the mother needed to be
available in the event that Collins’s counsel wanted to examine her further. The
recording was then played for the jury.
11
Here, the mother testified to her involvement and her prior statement was
inconsistent in many respects with her in-court testimony. See Brown v. State, 266
Ga. 723, 724-725 (2) (470 SE2d 652) (1996).4 Furthermore, Collins was given the
opportunity “to cross-examine [the] forgetful witness about [her] bias, [her] lack of
care and attentiveness, and even the very fact that [she] has a bad memory.” Id. at 725
(2) (citation and punctuation omitted). On cross-examination Collins asked the
mother if she was “on medication” at the time of the trial and at the time she gave the
recorded statement. He also questioned her about the inconsistences between her trial
testimony and her recorded statement. Thus, Collins was given ample opportunity to
cross-examine the mother about her “memory loss and the reasons for it[.]” See id.
Accordingly, the trial court did not abuse its discretion by admitting the prior
inconsistent statement. See id; see also Thompson v. State, 304 Ga. 146, 150-151 (6)
(816 SE2d 646) (2018).
4. Collins argues that his right to self-representation was violated because he
was not provided with copies of the trial court record. Collins states that he had to
4
While Brown was decided under the former evidence code, the new evidence
code “retain[s] Georgia’s former approach to a testifying witness’s out-of-court
statements.” Chambers v. State, ____ Ga. App. ____ (1) (A19A1117, decided Sept.
9, 2019) (citations omitted).
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request the trial record from the trial court clerk multiple times. However, he admits
that he ultimately received the record before the motion for new trial hearing. Of note,
Collins’s appellate brief regarding this alleged error contains multiple blank spaces,
where no record citations were filled in and trails off mid-sentence. “Enumerations
should specifically and definitely set out the error complained of so that this court
will not be compelled to grope in ascertaining what the error is.” Bone v. State, 283
Ga. App. 323, 324 (2) (641 SE2d 545) (2006) (citation and punctuation omitted).
As best as we can ascertain, Collins seems to argue that he should have
received the trial transcript earlier than he did. However, he fails to point to any un-
granted request for additional time to prepare for the motion for new trial hearing or
to draft his appellate brief, and he has not demonstrated how having additional time
to prepare would have benefitted him. Without a showing that Collins was harmed,
this contention is without merit. See generally Sims v. State, 273 Ga. App. 723, 726
(6) (615 SE2d 785) (2005).
Judgment affirmed. Barnes, P. J., and Brown, J., concur.
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