MILLER, P. J., DOYLE and REESE, JJ.
Miller, Presiding Judge.
Clinton Daniel was convicted by a jury of one count of first
degree burglary (OCGA § 16-7-1), four counts of entering
an auto (OCGA § 16-8-18), two counts of financial
transaction card theft (OCGA § 16-9-31 (a)),
two counts of identity theft (OCGA § 16-9-121). Daniel
was sentenced to 20 years to serve as a recidivist pursuant
to OCGA § 17-10-7 (c). Daniel appeals from the denial of
his motion for new trial contending that his trial counsel was
constitutionally deficient for (a) failing to advise him that
if he rejected the State's plea offer and was convicted
at trial the judge would be required to sentence him as a
recidivist who would be ineligible for parole, (b) failing to
object to the admission of prior felony convictions for
sentencing purposes, and (c) failing to request a jury charge
on accomplice corroboration. Daniel also alleges plain error
in the trial court's failure to sua sponte charge the
jury on accomplice corroboration. For the following reasons,
we reverse the trial court's order and remand this case
for proceedings consistent with this opinion.
appeal from a criminal conviction, a defendant no longer
enjoys the presumption of innocence, and the evidence is
viewed in the light most favorable to the guilty
verdict." (Citation omitted.) Scarborough v.
State, 317 Ga.App. 523 (731 S.E.2d 396) (2012).
viewed, the evidence shows that in the late evening of August
9, 2014, after smoking methamphetamine together, Daniel and
two women drove to a subdivision in Jackson County, Georgia
for the purpose of breaking into vehicles and a home to steal
things. The women, K. S. and D. H., dropped Daniel off at the
subdivision and picked him back up after he called them. When
they picked Daniel up, he had a bag, a sports jersey, and a
wallet. Daniel provided K. S. with a credit card from the
wallet, and she used the card to purchase cigarettes from a
gas station. K. S. also unsuccessfully attempted to use a
credit card at an ATM. Cameras at the gas station and ATM
captured K. S.'s image.
and D. H. testified against Daniel at trial and the jury
found him guilty on all counts. At sentencing, the State
introduced evidence of prior felony convictions and the trial
court sentenced Daniel as a recidivist to 20 years to serve
under OCGA § 17-10-7 (c). Daniel filed a motion for new
trial which the trial court denied, and this appeal followed.
Although not enumerated as error by Daniel, we find that the
evidence at trial was sufficient to sustain his convictions.
Burglary and Entering an Auto
sustain a conviction for first degree burglary, the State was
required to prove that Daniel entered a dwelling house
without authority with the intent to commit a theft. OCGA
§ 16-9-31. The State met this burden when it presented
testimony that a victim's wallet was stolen from within
the home lived in by two of Daniel's victims. The
evidence also showed that Daniel entered four cars with the
intent to commit a theft, which was sufficient to sustain his
four convictions under OCGA § 16-9-31 (a).
Financial Transaction Card Theft and Identity Fraud
was also convicted as a party to the crimes of financial
transaction card theft and identity fraud. Jordan v.
State, 272 Ga. 395, 396 (530 S.E.2d 192) (2000)
("every person concerned in the commission of a crime is
a party thereto and may be charged with and convicted of
commission of the crime") (citation and punctuation
omitted.) The evidence was sufficient to sustain these
convictions. For the two identity fraud convictions, the
State was required to prove that Daniel, without
authorization, possessed a victim's financial transaction
card information with the intent to use it fraudulently. OCGA
§§ 16-9-120 (5) (financial transaction card numbers
included in definition of identifying information), 16-9-121
(a). For the two convictions for financial transaction card
theft, the State needed to prove that Daniel obtained a
financial transaction card from a victim without the
victim's consent. OCGA § 16-9-31 (a). The State
introduced evidence that K. S. used both transaction cards
given to her by Daniel as well as receipts evidencing the use
and attempted use of the cards, and this evidence was
sufficient to sustain the convictions.
Daniel argues that his trial counsel was constitutionally
deficient for failing to correctly advise him about mandatory
recidivist sentencing during plea negotiations and that, had
he properly understood sentencing, he would have accepted the
State's plea offer. We agree.
to trial, the State filed a notice of intent to introduce
Daniel's prior convictions and offered him a plea deal of
fifteen years to serve six as a recidivist. In response, at
Daniel's request, his trial counsel extended numerous
plea offers that included drug treatment and excluded any
plea to burglary, all of which the State rejected. During the
plea negotiations, Daniel's trial counsel advised him
that the trial court had discretion as to whether to sentence
him as a recidivist who was ineligible for
day of trial, the State offered Daniel a blind plea to all
charges. Although Daniel had previously maintained his
innocence with regard to the burglary charge, his trial
counsel announced at the start of trial that Daniel would be
willing to plead guilty to just that charge. The State
rejected Daniel's offer, and the case ...