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Collins v. State

Court of Appeals of Georgia, First Division

October 8, 2019

COLLINS
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          MERCIER, JUDGE.

         Following a jury trial, Anthony Collins was found guilty of child molestation and enticing a child for indecent purposes.[1] After his conviction, Collins filed a motion for new trial, which the trial court denied. Collins appeals, pro se, asserting seven enumerated errors regarding ineffective assistance of counsel, his recidivist sentence, evidentiary rulings and his right to self-representation. For the following reasons, we affirm.

          Viewed in the light most favorable to the jury's verdict, the evidence at trial showed the following. See Green v. State, 302 Ga. 816, 817 (809 S.E.2d 738) (2018). On July 28, 2016, the victim, [2] the victim's mother and Collins were at the victim's aunt's house, where the victim lived. Collins asked the victim and her mother to come outside, where he told them that he would give them a phone if they had sex with him. The victim refused to have sex with Collins. Collins then asked them to go to an abandoned house next door, which they reluctantly did around midnight. After they entered the abandoned house, Collins had sexual intercourse with the mother in front of the victim. He then touched the victim on her breasts, vagina and buttocks with his hands underneath her clothing. Collins held the victim down, removed her clothing, and had sexual intercourse with her without her consent. After the assault was over, the victim left and, as she was leaving, the victim's mother and Collins were engaged in sexual intercourse.

         The victim returned home and fell asleep on her aunt's bed. A few days later, the victim revealed to her aunt that she had had sex with Collins in the abandoned house next to their house. The victim, her aunt and her aunt's pastor reported the assault to the Chief of Police in Vienna, Georgia. At trial, the victim positively identified Collins as the person who assaulted her.

         The victim's aunt testified that the victim's mother was attending a day program at "[t]he Mentally Retarded Center in Cordele" when they reported the crimes to the police, that the mother has "mental issues," and that at the time of trial the mother was living at the State Mental Hospital in Milledgeville. The mother was indicted with Collins as a co-defendant. However, she was granted immunity in exchange for her testimony against Collins at trial.

         Following Collins's conviction, his trial counsel filed a motion for new trial. Thereafter, Collins filed a motion to represent himself, which the trial court granted. Collins then filed an amended motion for new trial and represented himself at the hearing on his motion.

         Collins appeals the trial court's denial of his motion for new trial, claiming that his sentencing as a recidivist was void because the State failed to prove that he was represented by counsel when one of his prior convictions was entered; his trial counsel was ineffective in his handling of Collins's alibi defense and by failing to adequately argue a motion for directed verdict; the trial court erred by admitting a prior statement from the victim's mother; and his right to self-representation following his conviction was violated because he was not furnished copies of the record.

         1. Collins claims that one of his prior convictions, in which he pled guilty to a felony burglary charge as a first offender and then had his probation revoked, was void for the purposes of recidivist sentencing. "Whether a defendant was properly sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review." Frey v. State, 338 Ga.App. 583, 586 (3) (790 S.E.2d 835) (2016) (citation omitted).

         The record shows that the State gave Collins's counsel notice of its intent to introduce evidence at sentencing in aggravation of punishment, pursuant to OCGA § 17-10-7. At sentencing, the State presented certified copies of the indictment, guilty plea sheet, petition to revoke probation, order of adjudication and sentence on the prior offense in question, the burglary conviction. In his amended motion for new trial, Collins argued that the State failed to prove that he had been represented by counsel in connection with that conviction.

         "Once [Collins] asserted his objection, the State bore the burden of establishing the validity of the convictions it relied upon in arguing for recidivist treatment[.]" Tanner v. State, 230 Ga.App. 77, 79 (4) (495 S.E.2d 315) (1997) (citations omitted).

[T]he State bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas. If the defendant was not represented by counsel, the State can meet its burden by showing that the defendant waived this right. The State can do this by introducing a transcript of the plea hearing, a docket entry or another document affirmatively showing that the right to counsel was waived. Once the State has shown that the defendant either was represented by counsel or waived the right to representation, a "presumption of regularity" attaches to the plea proceedings and the burden shifts to the defendant to show any alleged irregularities.

Beck v. State, 283 Ga. 352, 353-354 (2) (658 S.E.2d 577) (2008) (citation omitted).

         At the motion for new trial hearing, the trial court admitted into evidence the transcript of Collins's guilty plea hearing on the burglary charge. The transcript established that Collins expressly waived his right to counsel after the trial court advised him of his right to an attorney. Although Collins was sentenced as a first offender on the burglary charge, his probation was revoked two years later due to his violations of the conditions of his probation. See Land v. State, 291 Ga.App. 617, 617-618 (662 S.E.2d 368) (2008) ("[A] defendant's first offender sentence does not become a 'conviction' as defined under Georgia criminal law, ...


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