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Daniel v. State

Court of Appeals of Georgia, Second Division

August 2, 2017

DANIEL
v.
THE STATE.

          MILLER, P. J., DOYLE and REESE, JJ.

          Miller, Presiding Judge.

         Matthew 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)), [1] and 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[2] 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.

         "On 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).

         So 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.

         K. S. 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.

         1. Although not enumerated as error by Daniel, we find that the evidence at trial was sufficient to sustain his convictions.

         (a) Burglary and Entering an Auto

         To 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).

         (b) Financial Transaction Card Theft and Identity Fraud

         Daniel 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.

         2. 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.

         Prior 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 parole.[3]

         On the 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 ...


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