dissenting.
To prevail on an ineffective assistance of counsel claim, a defendant who pled guilty to a crime must show that his trial attorney’s performance fell below an objective standard of reasonableness and that, but for that deficient performance, he would have rejected the plea and insisted on going to trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rollins v. State, 277 Ga. 488, 491 (2) (591 SE2d 796) (2004). In this case, the habeas court found that Johnson made a sufficient showing as to both prongs. On appeal, this Court must defer to that court’s findings of fact unless they are clearly erroneous, but we review its legal conclusions de novo. Rakestrau v. State, 278 Ga. 872, 873 (2) (608 SE2d 216) (2005). Applying that *605standard here, I cannot agree with the majority that the habeas court reached the correct legal conclusion based upon the facts that it found. Therefore, I dissent to affirmance of the grant of habeas corpus relief to Johnson.
“The rule against double jeopardy ... is expressed in various terms but basically provides that no person shall be put in jeopardy of life or liberty more than once for the same offense.” Keener v. State, 238 Ga. 7-8 (230 SE2d 846) (1976). Accordingly, the initial inquiry is whether Johnson’s attorney performed deficiently, because he failed to recognize that the crime of kidnapping with bodily injury, to which he encouraged his client to plead guilty in Cobb County, was the “same offense” as the crime of kidnapping in Whitfield County, which was nol prossed.
In concluding that Johnson did have a viable double jeopardy defense to prosecution for kidnapping in Whitfield County, the habeas court relied on Gerisch v. Meadows, 278 Ga. 641 (604 SE2d 462) (2004) and Perkinson v. State, 273 Ga. 491, 493 (1) (542 SE2d 92) (2001). However, the criminal defendant in Gerisch had already been twice convicted, and there was evidence to support a finding that the two convictions were for the same offense. Gerisch v. Meadows, supra at 643 (1). la Perkinson, there was only one conviction, but the parties “stipulated that the evidence from the Bartow County trial was essentially the same as would be presented in a [subsequent] DeKalb County trial on the offenses alleged there.” Perkinson v. State, supra at 493 (1). Here, there is only the one conviction in Cobb County, and no stipulation as to what evidence the State was prepared to introduce to show that Johnson was guilty of the offense of kidnapping in Whitfield County. Compare Gerisch v. Meadows, supra; Perkinson v. State, supra.
The habeas court found as follows:
Reading the indictments from both counties show that the charges are the same. The date, elements, and victim are the same. Further, the factual basis presented at the plea in Cobb County showed that this was one criminal transaction. The facts presented at the plea [hearing] show that the alleged victim was driven across the county line in [Johnson’s] car. This certainly is a continuous transaction.
This finding is insufficient to support the legal conclusion that Johnson had a viable double jeopardy defense to prosecution for kidnapping in Whitfield County. The general allegations of the two indictments are not controlling, if the State was prepared to present specific evidence showing that Johnson not only committed the offense of kidnapping with bodily injury in Cobb County, but that he *606also committed a separate charge of kidnapping in Whitfield County. The evidence adduced at the plea hearing in Cobb County may well have shown commission of an offense which commenced in that county and continued into Whitfield County. However, the sole purpose of that hearing was to establish a factual basis for Johnson’s plea of guilty to a crime committed in Cobb County. There was no reason why the State would necessarily show at that hearing any additional evidence that it might have to support a separate prosecution for kidnapping in Whitfield County. As the habeas court surmised, there may have been one “continuous transaction.” However, that is rank speculation entitled to no more credence than speculation that the prosecution in the two counties was for commission of two separate crimes. In the absence of probative evidence as to the factual basis underlying the Whitfield County prosecution, Johnson failed to show that his counsel’s performance was deficient because of an alleged failure to recognize a viable double jeopardy defense. Compare Perkinson v. State, supra; Gerisch v. Meadows, supra.
Moreover, even assuming that the evidence would authorize a finding that trial counsel was deficient for failing to recognize the viability of a double jeopardy defense to the kidnapping charge in Whitfield County, the question still remains as to whether the habeas court was also authorized to find that Johnson was prejudiced thereby. The habeas court held that Johnson “would have insisted on going to trial [in Cobb County] because he received the maximum sentence of life in prison by pleading guilty, so he would have nothing to lose by going to trial.” The prejudice prong of the ineffectiveness claim rests on this finding, which was based on the habeas court’s assessment of Johnson’s testimony at the hearing on his petition.
It is certainly true that, had Johnson been facing only a kidnapping charge in Whitfield County to which he had a viable double jeopardy defense, then he would not have lost anything by rejecting the plea agreement and standing trial on the kidnapping with bodily injury charge in Cobb County. See Gerisch v. Meadows, supra. However, he had been indicted in Whitfield County for additional offenses of false imprisonment, criminal attempt to commit murder, and possession of tools for the commission of a crime. The plea agreement offered to Johnson was that, in exchange for his guilty plea to the single count of kidnapping with bodily injury in Cobb County, all of the charges in Whitfield County would be nol prossed. Therefore, it was erroneous for the habeas court to base a finding of prejudice on its conclusion that Johnson would not have pled guilty to kidnapping with bodily harm because he had nothing to lose by doing so. Compare Gerisch v. Meadows, supra. To the contrary, by not pleading guilty, he would lose the benefit of avoiding prosecution for several additional *607offenses. Under the relevant circumstances, Johnson can demonstrate that he was prejudiced only by testifying that he would not have pled guilty to the single offense of kidnapping with bodily injury in Cobb County notwithstanding the loss of the benefit of the plea agreement in its entirety or by showing that his prosecution for the additional offenses in Whitfield County would also be barred by a plea of double jeopardy. Any other holding would permit Johnson to retain the full benefit of the plea agreement until the statute of limitations has run on the nol prossed charges in Whitfield County and then renounce his part of the bargain simply by testifying that, but for his attorney’s failure to recognize the viability of a double jeopardy defense as to a single one of those nol prossed charges, he would not have pled guilty to the count of kidnapping with bodily injury in Cobb County.
The habeas court did not find that Johnson would have rejected the guilty plea even though, by doing so, he would forego a nol pros of all of the pending charges in Whitfield County. Instead, that court concluded that “all of the Whitfield County counts would have merged into the Cobb [County] kidnapping with bodily injury....” It appears that the habeas court applied the “actual evidence” test as the basis for determining that all of the charges against Johnson in Whitfield County would have merged into the Cobb County kidnapping with bodily injury. However, in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006), this Court rejected that test, because
[i]t has created situations where the conduct of a defendant constitutes a clear violation of multiple statutes, each of which is intended to protect against different harms, but where the defendant is given a free pass for some of his crimes because his crimes were committed in a single act. [Cits.]
In its place, we adopted the “required evidence” test, under which
“(t)he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” [Cit.]
Drinkard v. Walker, supra at 215. Accordingly, regardless of the continuous transaction analysis applied by the habeas court, there would be no merger so long as false imprisonment, criminal attempt to commit murder and possession of tools for the commission of a crime required proof of a fact that kidnapping with bodily harm did *608not. If there was no merger, then by rejecting the guilty plea, Johnson not only faced the possibility of life imprisonment without parole upon a conviction in Cobb County. He also confronted the possibility of receiving in Whitfield County a ten-year sentence for false imprisonment (OCGA § 16-5-41 (b)), a thirty-year sentence for attempted murder (OCGA § 16-4-6 (a)), and five years for possession of tools for the commission of a crime (OCGA § 16-7-20 (b)). Because Drinkard represents a substantive change in the criminal law, it should be applied retroactively on collateral habeas review. See Luke v. Battle, 275 Ga. 370, 373 (2) (565 SE2d 816) (2002). The general rule is that a decision, such as Drinkard, which overrules precedent “ ‘ “is retrospective and makes the law at the time of the overruled decision as it is declared to be in the last decision ” (Cit.)’ [Cit.]” Ellis v. State, 272 Ga. 763, 764-765 (1) (534 SE2d 414) (2000). In fact, the very issue in Drinkard was whether defense counsel had been ineffective for failing to argue that several offenses had merged under the “actual evidence” test. We held that merger under that rejected test was unavailable to the habeas petitioner in Drinkard, and likewise it should not be available to Johnson now.
Decided October 29, 2007. Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Steven M. Rodham, for appellant. Rodney S. Zell, for appellee.Thus, it appears that the habeas court applied the incorrect standard in determining whether Johnson was prejudiced by his counsel’s purported failure to recognize a viable double jeopardy defense. At the very least, the grant of habeas relief should be reversed, and the case remanded for that court to reconsider both the validity and credibility of Johnson’s claim that he would not have pled guilty to the charge in Cobb County, in light of Drinkard and the possibility that, by failing to accept the plea, he faced prosecution and sentence for additional crimes in Whitfield County.