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Robards v. State

Court of Appeals of Georgia, Second Division

May 1, 2019


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

          REESE, JUDGE

         A jury found Jamie Robards guilty of computer theft.[1] He appeals from the trial court's denial of his motion for new trial, arguing that he received ineffective assistance of counsel and that the trial court erred in instructing the jury. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence showed the following facts. Ideal Development Concepts ("IDC") was a direct repair contractor that cleaned up and restored or renovated buildings that had sustained fire or water damage. The Appellant worked as an operations manager for IDC from September 2013 until IDC's owner, Frank Domonousky, terminated the Appellant's employment in early March 2014. Shortly thereafter, the Appellant contacted at least three of his former co-workers, who were still employed by IDC, and asked each of them to help him get a copy of an estimate for a specific home repair and reconstruction project he had been working on for IDC ("the Project"). The Project was estimated to be worth about $300, 000, and the Project estimate was stored on IDC's computers in the company's Gwinnett County offices.[3]

         Although two of the men contacted by the Appellant refused to assist him, [4] the other, Jay Borman, [5] agreed to help the Appellant get into IDC's offices. According to Borman, the Appellant told him that he needed the Project estimate because the owners of the property where the Project was located wanted him (the Appellant) to do the renovation, instead of IDC. So, just before midnight on March 13, 2014, Borman and the Appellant drove separately to the IDC building, and Borman used his access card so they could enter the building. Borman saw the Appellant go into the office of IDC employee Chris Sechrest, access Sechrest's laptop computer, and insert a thumb drive into the computer. A video recording from IDC's surveillance camera on the front of the building showed two vehicles arrive and park in IDC's lot; the vehicles matched Borman's descriptions of the vehicles he and the Appellant were driving that night. The surveillance video also showed that, about two minutes after the men parked their vehicles, the light in Sechrest's office was turned on. According to Borman, he and the Appellant were in the IDC building for 20 to 30 minutes, and the surveillance video corroborated this, showing both vehicles leaving the parking lot about 30 minutes after they had arrived.

         Later the same morning, March 14, 2014, Sechrest arrived at his IDC office, opened his laptop, and saw the log-in page for the company's cost estimation program on his screen, with the Appellant's log-in password typed in. Sechrest obtained data transfer logs from his laptop showing that someone had used the computer to transfer two files to an external drive at 12:02 a.m. and 12:20 a.m. that morning; both files contained detailed renovation estimates related to the Project.

         Sechrest told IDC's owner, Domonousky, about the file transfer, and Domonousky remembered that, at around midnight, he had been notified that someone had triggered the IDC building's security alarm. However, whoever had done so had quickly turned it off, so Domonousky had just assumed that an employee had been dealing with an emergency call and had accidentally triggered the alarm. Domonousky looked at the surveillance video recordings for the time period of several minutes before and after the alarm had been activated, and he saw a white van and a black sedan arrive and park next to one another at the far end of IDC's parking lot (where there was no surveillance camera), then leave several minutes later. Although the recordings did not show who was driving the vehicles, Domonousky knew that, at the time, Borman drove a white van and the Appellant drove a black Impala sedan. Domonousky also determined that Borman's security code had been used to access the building. Based on that information, Domonousky called Borman, and, when Borman lied to him, he fired Borman and called the police.

         The evidence presented at trial also showed that, about three days after IDC fired the Appellant in early March 2014, the owners of the property on which the Project was located notified IDC that they were terminating IDC's services and were going to do the Project themselves. According to the Appellant, the owners contacted him around the same time and asked him to complete the Project, which he agreed to do. A few weeks later, after the break-in at issue here, the Appellant contacted Borman and offered him construction work on the Project.

         Law enforcement officers subsequently arrested Borman and the Appellant and charged them with the computer theft and burglary.[6] At trial, the jury found the Appellant guilty on the computer theft charge. Following a hearing, the trial court denied the Appellant's motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [7] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[8]

         "The standard of Jackson v. Virginia[9] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[10] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the trial court erred in rejecting his claim that his attorneys were ineffective for failing to properly advise him about entering a guilty plea. Specifically, he argues that at least one of his attorneys misinformed him that he would get credit for time served in jail for another, unrelated arrest toward his sentence in the instant case. The Appellant argues that, if he had known otherwise, he would have pled guilty in this case and received a shorter sentence than he received following trial. There is no merit to this assertion.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.[11] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [The appellate court] accept[s] the trial court's factual findings and credibility determinations unless clearly erroneous, but . . . independently appl[ies] the legal principles to the facts.[12]

         "Absent clear error and harm, we will affirm the trial court's finding that [the appellant] did not receive ineffective assistance of counsel."[13]

         (a) When an appellant's ineffective assistance claim is based upon an assertion that his counsel's negligence regarding a proposed plea deal caused the appellant to proceed to trial instead of plead guilty, the appellant must demonstrate both counsel's deficient performance in advising the appellant and resulting prejudice.[14]

         (i) The record shows that, on May 16, 2014, the Appellant was arrested and taken to the Gwinnett County jail on the instant charges. Shortly thereafter, he retained an attorney, Michael Manfredi, and bonded out of the Gwinnett County jail. In January 2015, while the Appellant was out on bond, he was arrested and jailed in Jackson County on unrelated felony charges. Manfredi withdrew from this case and was replaced by another attorney from the same firm, Scott Smith, who filed discovery requests in this case. Smith concurrently represented the Appellant on both the Jackson County charges and the instant charges in Gwinnett County. The Appellant remained incarcerated in the Jackson County jail until his March 2016 trial on those charges, during which he was convicted and sentenced to five years of imprisonment, to serve three. He was then transported to the Jackson State Prison. In June 2017, the Appellant fired Smith and hired new counsel, Melissa Manfredi (hereinafter, "trial counsel"). A month later, the Appellant was transported to the Gwinnett County jail so he could meet with his trial counsel prior to the trial on the instant charges, which began on August 8, 2017.

         In his appellate brief, the Appellant claims that his first attorney, Michael Manfredi ("Manfredi"), was ineffective when he mistakenly told him that he would receive credit toward his sentence in the Gwinnett County case for the time he served in the Jackson County jail on the unrelated charge. This claim is not supported by a citation to the trial court record, [15] however, and a thorough review of the record clearly shows that there is no evidence to support it.

         The record shows that the Appellant did not call Manfredi to testify during the motion for new trial hearing, nor did the Appellant testify about Manfredi's alleged misrepresentation, even though the Appellant was present during the hearing. Thus, the Appellant has failed to present any evidence to support a finding that Manfredi's representation was deficient.[16]

         Moreover, during the hearing, Smith testified that he had never discussed with the Appellant whether he would get credit toward his Gwinnett County sentence for time served in Jackson County. The Appellant's trial counsel also specifically testified that she had told the Appellant that he would not be entitled to credit for time served in Jackson County because he had bonded out of the Gwinnett County jail in the instant case.

         Consequently, the Appellant has failed to meet his burden of showing that any of his attorneys incorrectly advised him that he would receive credit for time served in Jackson County or otherwise misadvised him about his guilty plea options.

         (ii) Even though the Appellant's failure to prove one of the Strickland prongs eliminates the need for this Court to address the other, [17] we note that the undisputed evidence in the record also fails to show any prejudice to the Appellant.

         In order to demonstrate prejudice resulting from counsel's deficient performance in advising the appellant regarding a proposed guilty plea, the appellant must show:

[1] that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the [appellant] would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [2] that the court would have accepted its terms, and [3] that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.[18]

         In this case, during the motion for new trial hearing, Smith testified that he spoke with the Appellant in 2015 about the possibility of entering a guilty plea, and that the Appellant responded that he was innocent and was "absolutely not interested[ ]" in entering a plea. The Appellant told Smith, "I would rather go to prison than cut grass for the rest of my life." Smith memorialized that conversation in an e-mail to his law partner. However, in 2017, still believing that a guilty plea deal could possibly be arranged and that a plea was in the Appellant's best interest, Smith had a second conversation about the possibility of a plea with the Appellant's brother, Jason Robards ("the brother").[19] The brother directed Smith to stop "discuss[ing] the possibility of resolving the case by plea negotiation."

         Similarly, the Appellant's trial counsel, who started representing the Appellant about two months before trial, testified at the hearing that Appellant told her "in no uncertain terms [that] he was not going to enter a [guilty] plea." Trial counsel also testified that the Appellant never asked her to enter into plea negotiations with the prosecutor. And, as shown in the previous subsection, the Appellant failed to testify at the hearing and, thus, failed to present any testimony or evidence to contradict these witnesses or support this ineffectiveness claim.[20]

         Consequently, the Appellant has failed to demonstrate both deficient performance by counsel and resulting prejudice and, thus, cannot prevail on this ineffective assistance claim as a matter of law.[21]

         (b) The Appellant also appears to contend that his attorneys were ineffective for communicating with his brother, instead of him, regarding whether he would accept a plea deal. He argues that "there [was] no documentation authorizing his brother, Jason, to make pivotal decisions regarding the case." Pretermitting whether the Appellant properly raised this argument in his brief, [22] it lacks merit.

         At the motion for new trial hearing, Smith testified that the Appellant expressly "gave [Smith] the authority to discuss confidential matters with his brother." According to Smith, the brother was a "go-between" to assist with communication between Smith and the Appellant. The brother "was very involved in [the Appellant's] defense. [The brother] participated in every chance he could get and he was very good about communication. [The brother had a] direct line of communication from the prison with [the Appellant] over the telephone[.]" The Appellant's counsel did not object to this testimony. And, despite being present at the hearing, the Appellant failed to testify or present any other evidence to contradict Smith's testimony and support this argument.[23]

         Further, during the arguments at the end of the hearing, the State specifically stated that the Appellant's attorneys sometimes communicated to the Appellant "by and through his brother, who [was] an authorized agent for purposes of this case[.]" The Appellant did not object to this statement. Finally, in explaining its ruling on the ineffective assistance claims, the trial court stated that the Appellant's attorneys had communicated with the Appellant about a possible plea "through his brother, who the [Appellant] authorized as a method to communicate with his ...

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