July 16, 2014
Reconsideration denied July 31, 2014.
Burglary, etc. Floyd Superior Court. Before Judge Niedrach.
Margaret E. Flynt, S. Cindy Wang, Roger L. Curry, for appellant.
Leigh E. Patterson, District Attorney, Emily G. Johnson , Assistant District Attorney, for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
Christopher Lucas was convicted of two counts of burglary, criminal damage to property (second degree), theft by taking, and possession of tools for the commission of a crime. He contends that the trial court erred by (1) sentencing him for both burglary counts, because they were part of a single continuous act and should have merged; and (2) denying his motion for new trial based on his claim of ineffective assistance of trial counsel. Because the two burglaries merged as a matter of fact, we vacate one burglary conviction and sentence and remand the case for resentencing. We affirm Lucas's remaining
convictions because Lucas failed to show that his trial counsel provided ineffective assistance.
1. Lucas contends that the trial court erred by sentencing him for two burglary counts instead of only one. He asserts that the charged burglary offenses merged because they were committed at the same time and place, were part of a continuous criminal act, and were inspired by the same criminal intent.
Count 1 of the indictment alleged that Lucas committed burglary when, on March 28, 2012, without authority and with intent to commit a theft therein, he entered and remained within a building of another (to wit: a Huddle House restaurant at a specified location). Count 5 alleged that Lucas committed burglary when, on the same date, without authority and with intent to commit a theft therein, he entered and remained within that same building (the Huddle House restaurant). The indictment stated that the offense alleged in Count 1 was " separate and apart from the offense alleged in Count 5" of the indictment, and that the offense alleged in Count 5 was " separate and apart from the offense alleged in Count 1."
The evidence showed the following. On March 28, 2012, a Huddle House restaurant waitress arrived at work shortly after 5:00 a.m., and found the glass on the front door broken. The waitress telephoned [328 Ga.App. 742] police and the manager. When the manager arrived, she entered the store and observed that the frame of the office door was broken, the safe that had been in the office was gone, and the cash register had been pried, but not opened. A " change jar" that was kept inside the safe, containing about $400, was also missing.
A police detective arrived and spoke with the owner, who had also arrived. The owner showed the detective a surveillance video taken from the restaurant's cameras; the video was later shown to the jury. The video showed the glass on the front door break and a person enter the building. The person attempted to open the cash register, but could not. He left and returned between five and twenty minutes later. When he returned, he broke into the office with " some sort of metal thing," dragged a safe out of the office, put the safe in a vehicle, then left. A second police detective saw still photographs taken from the video and told the first detective that he recognized the person depicted therein as Lucas.
The two detectives then went to Lucas's home to interview him. Lucas told the detectives that he would return the safe to them and possibly some cash or the contents of the safe. The detectives went to the police station and waited for Lucas, but he did not arrive.
The detectives later returned to Lucas's house, which he shared with his girlfriend, T. H. T. H. told the detectives that she and Lucas took the safe from the restaurant. She also told the detectives where the safe could be found. Based on their conversation with T. H., the detectives were able to locate the safe; it was in a ravine by a roadside, and a section of the safe had been cut out. T. H. consented to a search of the home, and directed detectives to a duffle bag in the home's crawlspace. The bag contained a crow bar, a power saw, and cutting blades capable of cutting through pipes and " just about anything." Detectives also found in the crawlspace a jar like the cash jar that had been inside the safe.
" Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact." 
For separate offenses charged in one indictment to carry separate punishments, they must rest on distinct criminal acts. If they were committed at the same time and place and [328 Ga.App. 743] [were part] of a continuous criminal act, and inspired by the same criminal intent, they are susceptible of
only one punishment.
" Whether offenses merge is a legal question, which we review de novo." 
The version of OCGA § 16-7-1 (a) in effect when the offenses were committed (March 2012) provided, in pertinent part: " A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains ... within any ... building ... or any room or any part thereof." The question presented here, then, is whether Lucas's acts of entering, exiting, and reentering the same restaurant twice within a five to twenty-minute period for the purpose of committing theft can be punished as two " separate units of prosecution" under the burglary statute. The state contends that the two burglary counts did not merge, because the conduct at issue was not part of a single continuous act. According to the state, " the continuum of [Lucas's] act was broken when he left the premises of Huddle House for a period of time and returned to take the store's safe."  We disagree.
Here, both burglary counts charged Lucas with entering the same building on the same date with the intent to commit the same crime -- theft. And the evidence showed that the acts were committed at the same location, were inspired by the same criminal intent (to commit theft in the Huddle House restaurant building), and were part of a continuous criminal act spanning a matter of minutes. The criminal acts were not " separated by a meaningful interval of time or with distinct intentions."  The interval of minutes between the acts " did not signal the completion of a separate criminal act but signified only the temporary failure to accomplish the one intentional criminal transaction."  The criminal conduct constituted a single course of [328 Ga.App. 744] conduct, not separate offenses. Further, without evidence of a legislative intent to allow multiple punishments for the same course of conduct, acts that constitute a continuing criminal course of conduct are not punishable separately;  there is no evidence of such legislative intent regarding the burglary statute. Thus, the trial court erred by failing to merge the two counts. Accordingly, we vacate the conviction and sentence on one of the burglary counts, and remand the case to the trial court for resentencing.
2. Lucas contends that his trial counsel provided ineffective assistance by not moving to suppress incriminating statements that he had made to detectives at his house. At trial, the detectives testified that when they
interviewed Lucas at his house, Lucas told them that he knew where the safe was and promised to return the safe and some of its contents. He also said that the safe was " heavier than we thought."
Citing OCGA § 24-8-824, Lucas asserts that the incriminating statements were inadmissible because they had been induced by the detectives' promise to obtain a bond for him and their suggestion that he would not be prosecuted if he returned the property. When it denied Lucas's motion for new trial based on the ineffective assistance claim, the court found that Lucas had not shown, inter alia, a reasonable probability that the outcome of the trial would have been different had his statements been suppressed.
[I]n order to prevail on his claim of ineffective assistance of counsel, [Lucas] must show under Strickland v. Washington,[] that his attorney's performance was deficient, and that, but for such deficiency, there is a reasonable probability that the proceeding would have ended differently. Moreover, [328 Ga.App. 745] in order to meet this burden, [Lucas] must overcome the strong presumption that his attorney's representation fell within the wide range of reasonable professional conduct.
This court reviews a trial court's legal conclusions de novo, and will uphold a trial court's findings of fact on a claim of ineffective assistance of counsel unless those findings are clearly erroneous.
" When trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion." 
Further, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
The detectives testified at trial about their interview of Lucas at his residence; a portion of the interview was recorded, and a video and audio recording of the interview was played at trial. The evidence showed that during the interview, the detectives told Lucas that: the restaurant owners wanted the safe back; " [t]hat's all they want, is their safe back. That's all you gotta do. Give these people their safe back" ; " [i]f Huddle House gets their safe, and their little bit of cash back, they're good to go" ; if Lucas helped them get the safe back, Huddle House, the detectives, their boss, and the district attorney (DA) would be happy; and the detectives would tell the DA that Lucas had " worked with us, and see if they can help you out." The detectives added that if the DA's office " wanted" Lucas, it would have prosecuted him on an unrelated burglary charge, but had not, and that the DA's office " doesn't care about Chris Lucas." The detectives also purportedly promised to arrange for bond for Lucas.
Assuming that the detectives' statements to Lucas suggested that he would not be prosecuted if he returned the property, and assuming further that the statements
constituted an impermissible [328 Ga.App. 746] hope of benefit (and that Lucas was induced thereby to make the incriminating statements), and that Lucas has thus made a strong showing that the evidence would have been suppressed had counsel made the motion, his ineffective assistance claim still must fail. This is because Lucas has failed to show a reasonable probability that the outcome of the trial would have been different had his statements been excluded, given the other substantial evidence of his guilt.
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Ellington, P. J., and McMillian, J., concur.