THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, 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 31, 2016
In the Court of Appeals of Georgia
A16A0951. SEAGRAVES v. THE STATE.
MCFADDEN, Judge.
Terry Lynn Seagraves entered a non-negotiated guilty plea to aggravated
assault, aggravated battery, and reckless driving. The trial court sentenced him to 30
years, with 15 years to be served in confinement and the remainder to be served on
probation. Seagraves timely moved to withdraw his guilty plea, but the trial court
denied the motion. Seagraves appeals, arguing that he was denied his right to
allocution (to speak before the trial court imposes sentence). We find that any right
to allocution was satisfied when counsel argued on Seagraves’ behalf. Seagraves
argues that he received ineffective assistance of counsel, but we find that counsel’s
performance was not deficient. We therefore affirm the trial court’s denial of
Seagraves’ motion.
1. Facts.
The facts, as set forth at the guilty plea hearing, show that the victim was a
friend of Seagraves’ estranged wife. On the day of the incident, the victim was a
passenger in the wife’s car when they happened to drive past Seagraves. Seagraves
began following them in his truck and tried to run them off the road. The victim
called 911, and the operator instructed them to drive to a public place. The wife
pulled into the parking lot of a convenience store. Seagraves followed and parked
next to them. He opened the victim’s door and told him to get out of the car. The
victim refused. Seagraves retrieved a gun from his truck and shot the victim in the
leg. Seagraves then pointed the gun at the victim’s head and told him to get out of the
car. The victim got out and tried to run toward the store, but he was hampered by his
injured leg. Seagraves went back to his truck and retrieved a baseball bat. Before the
victim could enter the store, Seagraves began hitting him with the baseball bat. He
continued hitting the victim once he entered the store, breaking the victim’s arm.
The victim and Seagraves’ wife both testified at the plea hearing. The victim
informed the court that he would be satisfied with a sentence of five years and
restitution in the amount of his medical bills. Seagraves’ wife informed the court that
she would be satisfied with a sentence of time served.
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After the state presented all of its witnesses, defense counsel told the court that
the defense would present no evidence, even though Seagraves had several witnesses
in attendance and even though Seagraves had written a letter of apology, which
counsel had intended to introduce.
In closing argument, defense counsel asked that Seagraves be sentenced to five
years, the sentence the victim had testified would satisfy him. The state recommended
that the court sentence Seagraves to 30 years, the first 15 years to be served in
confinement. The court adopted the state’s recommendation and entered judgment on
the guilty plea.
Within the same term of court, Seagraves filed the instant motion to withdraw
his guilty plea. The trial court conducted a hearing, at which Seagraves, the three
attorneys who represented him at the plea hearing, and other witnesses testified. The
trial court denied the motion and Seagraves filed this appeal.
2. Standard of review.
“After sentencing, the decision on a motion to withdraw a guilty plea is within
the trial court’s discretion, and withdrawal of the plea is allowed only when necessary
to correct a manifest injustice.” Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468)
(2013) (citations omitted). We review the trial court’s decision for a manifest abuse
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of discretion. Walden v. State, 291 Ga. 260, 261 (1) (728 SE2d 186) (2012).
Seagraves has not shown that the trial court abused his discretion.
3. Allocution.
Seagraves argues that the trial court erred by denying his motion to withdraw
his guilty plea because he was denied his right to allocution. We disagree.
First, it is not clear that Seagraves had any right of allocution since he entered
a guilty plea. Our Supreme Court has held that there is no federal or state
constitutional right to allocution upon entry of a guilty plea. Barksdale v. Ricketts,
233 Ga. 60, 61 (209 SE2d 631) (1974). Seagraves does attempt to distinguish
Barksdale, but the state declines to rely on it — noting that Seagraves’ guilty plea
was non-negotiated. But it is not clear from the opinion in Barksdale whether
Barksdale’s plea was negotiated or non-negotiated. See Barksdale, 233 Ga. at 61
(defendant indicated to the trial court that he had “a full understanding of the range
of punishment”). And the court’s language was unequivocal:
[The defendant] had no constitutional or statutory right which was
violated by his attorney’s failure to make a statement to the court on his
behalf in mitigation of punishment, nor had he any right in Georgia to
allocution upon entry of a guilty plea. There is no federal constitutional
provision granting such right, nor is there any such state constitutional
right.
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Id. at 61 (citations omitted). We do not decide whether Seagraves had a constitutional
right to allocution, since his plea was non-negotiated because, as detailed below, any
such right was satisfied when counsel argued on his behalf.
A statutory right to allocution is embodied in OCGA § 17-10-2, which, among
other things, grants the defendant or his attorney the right to speak before the trial
court imposes sentence. Pretermitting whether the statute applies when a defendant
has entered a non-negotiated guilty plea and whether there is a common law right of
allocution in such circumstances, our Supreme Court has held that any right to
allocution is satisfied by compliance with OCGA § 17-10-2 (a). See Murray v. State,
269 Ga. 871, 872-873 (1) (505 SE2d 746) (1998). That statute provides in pertinent
part that “[t]he judge shall . . . hear argument by the accused or the accused’s counsel
and the prosecuting attorney, as provided by law, regarding the punishment to be
imposed.” OCGA § 17-10-2 (a) (2) (emphasis supplied). Here, the trial court
complied with the statute when he gave counsel the opportunity to speak on behalf
of Seagraves.
Seagraves argues that the right to allocution is personal and cannot be satisfied
by counsel’s speaking on his behalf. But our Supreme Court has rejected that
argument. See Guyton v. State, 281 Ga. 789, 794-795 (10) (e) (642 SE2d 67) (2007)
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(addressed in the context of ineffective assistance of counsel). The case upon which
Seagraves relies for the proposition that the right can be satisfied only when the
defendant himself is given the opportunity to speak is a federal case interpreting
Federal Rule of Criminal Procedure 32, which explicitly requires the defendant
personally to be given the right to speak. Federal Rule of Criminal Procedure 32 (i)
(4) (A) (ii). See United States v. Perez, 661 F3d 568, 583-584 (III) (11th Cir. 2011).
4. Assistance of counsel.
Seagraves argues that he received ineffective assistance of counsel because his
attorneys ignored his request to withdraw his plea before he was sentenced; his
attorneys failed to call his mitigation witnesses or present mitigating evidence; and
his attorneys refused to allow him to present a statement.
“A defendant who pleads guilty and seeks to overturn his conviction because
of counsel’s errors must show both that counsel’s performance was deficient and that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Trauth v. State, 283 Ga.
141, 142 (2) (657 SE2d 225) (2008) (citation and punctuation omitted).
a. Ignoring Seagraves’ request to withdraw plea.
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Seagraves argues that his attorneys were ineffective because they ignored his
request to withdraw his plea before the court pronounced sentence. At the hearing on
the motion to withdraw his guilty plea, Seagraves testified that during the guilty plea
hearing, he instructed his attorneys to stop the proceedings and that he wanted to
withdraw his plea. But his testimony was contradicted by that of all three of his
attorneys, each of whom testified that Seagraves never indicated that he wanted to
stop the proceedings or withdraw his plea, or at least, that they did not hear or recall
that. “[I]n rejecting [Seagraves’] ineffective assistance claim and finding that defense
counsel’s performance fell well within the range of reasonable professional
assistance, the trial court implicitly credited defense counsel’s testimony.” Arnold v.
State, 292 Ga. 95, 96 (1) (734 SE2d 382) (2012) (citation omitted). Accordingly,
Seagraves has not shown deficient performance on this ground.
b. Failure to call mitigation witnesses or to present mitigating evidence.
Seagraves argues that counsel was ineffective for failing to call his mitigating
witnesses and for failing to present evidence of three mitigating circumstances: that
he was distraught at the time of the crimes because his good friend recently had
committed suicide; that he was upset that his children could be exposed to the victim,
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who had sold illegal drugs to children; and that he did not retrieve his gun until after
the victim had cut his arm with a knife.
Lead counsel testified that he did not believe the mitigating evidence would
have been helpful. And the attorneys testified that they did not believe calling the
mitigation witnesses would have benefitted Seagraves. The attorneys testified that
their primary strategy was to introduce evidence of mitigation through cross-
examining Seagraves’ wife and the victim, particularly about the sentence they would
accept. They were able to secure that testimony.
An attorney’s reasonable decision about what evidence to introduce and which
witnesses to call does not amount to ineffective assistance of counsel. Perdue v. State,
298 Ga. 841, 845 (3) (785 SE2d 291) (2016); Brown v. State, 302 Ga. App. 515, 518
(1) (b) (692 SE2d 386) (2010).
c. Refusal to allow Seagraves to present a statement.
Seagraves testified at the motion hearing that he had written a statement and
wanted to address the court. But his attorneys testified that they had concluded that
if he presented his written statement, he would have to testify and the cost of having
him testify outweighed any benefit of introducing the statement. Further, lead counsel
testified that Seagraves himself made the decision not to make a statement.
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And counsel argued on his behalf at the guilty plea hearing. In urging the court
to impose a lighter sentence than the fifteen years the state requested, counsel pointed
out that the victim had asked for only five years and restitution. He argued that should
the court sentence Seagraves to 15 years, then Seagraves would be unable to pay
restitution. He urged the court to order probation conditions that would protect the
victim and Seagraves’ wife. He argued that a sentence of five years would satisfy all
the purposes of sentencing.
Seagraves’ “counsel did not render ineffective assistance because [they] failed to
insist that [Seagraves] be afforded an opportunity to address the trial court personally on
the subject of sentencing. Counsel spoke at the sentencing hearing on [Seagraves’] behalf
regarding mitigation and punishment.” Guyton, supra, 281 Ga. at 794-795 (10) (e) (642
SE2d 67) (2007) (citations omitted).
Judgment affirmed. Miller, P. J., and McMillian, J., concur.
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