dissenting.
Because evidence supports the trial court’s conclusion that Johnson failed to prove that there was a reasonable probability that he would have accepted the State’s original plea offer but for the alleged deficient performance of his trial counsel, I must respectfully dissent from the majority’s erroneous conclusion that the judgment of the trial court should be reversed. Contrary to the majority’s conclusion that there is some indication in the record that Johnson was amenable to the State’s original plea offer (see Maj. Op. at 536), the record reveals that Johnson’s initial impulse, even after being informed of the possibility of serving a life sentence without the possibility of parole if he went to trial, was to reject the State’s plea offer and to try to get a better deal by making a counteroffer of his own. Thus, all that can be said from the record is that Johnson was prepared to make a counteroffer if he had known about the State’s original plea deadline and the possibility of serving a life sentence without the possibility of parole if he went to trial. Because the State would have been authorized to revoke its plea offer in light of Johnson’s counteroffer, completely independently of any deadline by which the offer would have expired automatically (see, e.g., Scott v. State, 302 Ga. App. 111, 114 (3) (690 SE2d 242) (2010)), it cannot be said that Johnson was prejudiced by his counsel’s failure to inform him sooner of the possible sentence that he would face if he did not accept a plea deal. All that can be said is that the outcome could or would have been the same regardless of the timing in which Johnson rejected the State’s original plea offer.
In short, Johnson’s decision to make a counteroffer to the State’s original plea offer after being informed of the possible *537consequences if he went to trial makes all the difference in this case. Indeed, this case might be different if Johnson had immediately accepted the State’s post-deadline plea offer without attempting to make any changes to it, and then the State rejected his unequivocal acceptance of the offer based solely on the fact that the original plea deadline (of which Johnson had not been informed) had already passed. However, that is not what happened here. Instead of accepting the State’s plea offer, Johnson made a counteroffer, which exposed him to the risk of having the State’s plea offer taken off the table. See, e.g., Scott, supra. For this reason, I cannot agree with the majority’s conclusion that the trial court erred in concluding that Johnson failed to meet his burden of proving ineffective assistance. I would therefore affirm the judgment of the Court of Appeals, and I must respectfully dissent from the majority opinion of this Court.
Decided June 13, 2011 Reconsideration denied July 11, 2011. Garner & Wald, Michael E. Garner, Stephanie N. Wald, for appellant. Julia Fessenden Slater, District Attorney, Michele C. Ivey, Michael E. Craig, William D. Kelly, Jr., Assistant District Attorneys, for appellee.I am authorized to state that Justice Hines joins in this dissent.