                                FIRST DIVISION
                                BARNES, P. J.,
                             GOBEIL and PIPKIN, JJ.

                    NOTICE: Motions for reconsideration must be
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                    days of the date of decision to be deemed timely filed.
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                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                     August 3, 2020



In the Court of Appeals of Georgia
 A20A1496. McNEELY v. THE STATE.

      BARNES, Presiding Judge.

      In this case arising out of a shooting that occurred during a drug deal, Antwan

Dominique McNeely was convicted of aggravated assault and possession of a firearm

during the commission of a crime. On appeal from the denial of his motion for new

trial, McNeely contends that he received ineffective assistance from his trial counsel.

Specifically, McNeely argues that his trial counsel was deficient in failing to review

certain video surveillance footage before trial, and that, if his counsel had reviewed

the footage and advised him about it, he would have accepted a plea offer made by

the State instead of proceeding to trial. For the reasons discussed more fully below,

we conclude that the trial court did not err in denying McNeely’s motion for new trial

on the ground that his counsel was ineffective. Accordingly, we affirm.
      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)

(2004). So viewed, the evidence showed that on the night of May 1, 2014, the victim

drove to a hotel in Richmond County, Georgia, to sell an ounce of methamphetamine.

The victim arranged the drug deal through a friend, who met him in the hotel room

along with the buyer.1 The buyer went by the nickname Smiley. After the victim

weighed the methamphetamine, Smiley pulled out a handgun and pointed it at the

victim. When the victim refused to hand over the drugs, Smiley fired a shot through

the floor and another into the wall before leaving the hotel room.

      The victim left the hotel room a few minutes later and got into his truck in the

hotel parking lot. An SUV then pulled up beside the victim’s truck and someone got

out, unsuccessfully tried to open the truck’s doors, and fired two shots into the truck

before jumping back into the SUV. One of the bullets struck the victim in the leg. The

victim rammed the SUV with his truck, and then both vehicles drove away. The

victim subsequently was transported by ambulance to the hospital for treatment.



      1
          A fourth person, who went by the nickname T. J., also was in the hotel room.

                                           2
         When the victim initially spoke with a police investigator, he tried to cover up

the fact that the shooting occurred during a drug transaction. However, the victim

later admitted to the investigator that the shooting occurred in the context of a drug

deal at the hotel, and he identified McNeely in a photographic lineup as Smiley, the

buyer who fired the shots in the hotel room. The victim also identified McNeely as

Smiley later at trial. The victim did not see the face of the person who fired into his

truck in the parking lot.

         The victim’s friend who had been present during the drug deal also spoke with

an investigator and told him about what transpired at the hotel. He identified

McNeely as Smiley in a photographic lineup and later at trial. The victim’s friend,

who had been standing on the hotel balcony when the shooting occurred in the

parking lot, told the investigator that he saw McNeely fire the shots into the victim’s

truck.

         The morning after the shooting, McNeely’s girlfriend discovered that the front

of her SUV was damaged. McNeely told her that he had been driving the SUV and

damaged it when he swerved to miss a child. Suspicious of McNeely’s story, the

girlfriend spoke with a law enforcement officer and told him that McNeely had been

in possession of her SUV when the damage occurred. She also told the investigator

                                             3
that McNeely went by the nickname Smiley, and she handed over her damaged SUV

to an investigator. The investigator had the victim’s friend look at the damaged SUV,

and the friend confirmed that it was the same SUV involved in the shooting.

      The investigator contacted the hotel manager and learned that the hotel was

equipped with a video surveillance system. He obtained a video from the hotel

manager that included footage of the outside of the hotel room and the parking lot

area on the night in question. The video was divided into two files. The images

captured in the two video files were small and blurry but were consistent with the

victim and his friend’s descriptions of what had occurred. The first video file showed

people going in and out of the hotel room in question, and the second video file

showed people leaving the room followed by the shooting incident in the parking lot

involving the truck and SUV. Although the shooter’s face could not be seen in the

second video file, the video showed the shooter wearing a white shirt, which was

consistent with the description of McNeely’s clothing given by the victim’s friend.

Additionally, when McNeely’s girlfriend was shown the second video file, she

identified her SUV as the vehicle in the video pulling up to the truck during the

shooting.



                                          4
      McNeely was arrested, and officers discovered a Hi-Point handgun on the

kitchen table in his apartment. A Georgia Bureau of Investigation (“GBI”) expert in

firearms analysis examined the handgun and several 9 millimeter cartridge cases

recovered from the crime scene and determined that the cartridge cases had been fired

from that gun.

      Before trial, the prosecutor offered a plea deal to McNeely of five years in

confinement followed by five years on probation. McNeely rejected the offer after

discussing it with his trial counsel. McNeely made a counteroffer of 10 years, with

the first 2 years in confinement followed by 8 years on probation, which the State did

not accept. In letters written by McNeely to the prosecutor, he stated that the plea

offered by the State involved a “harsh sentence,” that he was innocent of the charges

against him, that he was the victim and acted in self-defense, that there were

“legitimate reasons for [him] to take this case to trial,” and that he was “ready to get

back home with [his] family.”

      At the ensuing jury trial, in addition to the testimony of the victim, the victim’s

friend, McNeely’s girlfriend, the GBI firearms expert, and several law enforcement

officers, the State introduced into evidence and played for the jury the two video

surveillance files from the hotel. When the State played the second video file that

                                           5
showed the shooting incident in the parking lot, McNeely’s trial counsel passed him

a note which read:

      We did not see the second file of the security video – I thought we had
      seen all there was to see. If you are convicted then you can raise that in
      a motion for new trial or appeal – You would get a different lawyer. I
      would be called as a witness.


The jury trial continued, and McNeely ultimately elected not to testify and did not call

any defense witnesses. Following its deliberations, the jury found McNeely guilty of

aggravated assault based on the shooting of the victim and of possession of a firearm

during the commission of a crime.2 The trial court entered judgment on the conviction

and sentenced McNeely to 25 years, with the first 20 years in confinement followed

by 5 years on probation.

      McNeely filed a motion for new trial, contending, among other things, that his

trial counsel was ineffective because he did not adequately prepare for trial by

reviewing the second of the two surveillance video files from the hotel. According




      2
       McNeely also was indicted on charges of criminal attempt to commit armed
robbery and possession of a firearm by a convicted felon. He was acquitted of
attempted armed robbery, and the firearm charge was nolle prossed.

                                           6
to McNeely, if his trial counsel had reviewed the second video file before trial and

discussed it with him, he would have accepted the plea deal offered by the State.

      At the hearing on the motion for new trial, McNeely’s trial counsel testified

that the State provided him access to the two video files from the hotel’s surveillance

system before trial, but he had mistakenly only reviewed the first of the two video

files and thus did not discuss with McNeely the second file showing the shooting

incident in the hotel parking lot. According to trial counsel, had he been aware of the

second video file, he would have advised his client to strongly consider accepting a

plea deal. However, trial counsel also testified that McNeely previously had been

found not guilty by the same trial judge in a bench trial in a different criminal case,

that he and McNeely liked having the same judge in the present case, and that

McNeely “was pretty strongly wanting to have a trial.” According to trial counsel, he

did not recall seeing any signs from McNeely that a guilty plea would be a possibility

in this case. Additionally, the State introduced into evidence an email containing the

State’s plea offer of five years to serve, five years on probation, an email containing

McNeely’s counteroffer of two years to serve, eight years on probation, and

McNeely’s letters to the prosecutor in which he proclaimed his innocence and

criticized the plea deal offered by the State. McNeely did not testify at the new trial

                                          7
hearing. Following the hearing, the trial court entered its order rejecting McNeely’s

ineffective assistance claim and denying his motion for new trial. This appeal

followed in which McNeely contends that his trial counsel rendered ineffective

assistance and that the trial court erred in concluding otherwise.3

      To succeed on a claim of ineffective assistance of counsel under the test

enunciated in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984), a defendant must show both that his lawyer’s performance was

deficient and that this deficient performance resulted in prejudice to the defendant.

Thomas v. State, 303 Ga. 700, 702 (2) (814 SE2d 692) (2018). “If an appellant fails

to meet his or her burden of proving either prong of the Strickland test, the reviewing

court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533,

533-534 (2) (690 SE2d 801) (2010). “In addressing claims of ineffective assistance

of counsel, we review the trial court’s legal conclusions de novo and its factual

findings under the clearly erroneous standard.” Ramirez v. State, 345 Ga. App. 611,

618 (3) (814 SE2d 751) (2018).


      3
        Although not enumerated as error, we conclude that the evidence recounted
above was sufficient to enable a rational trier of fact to find beyond a reasonable
doubt that McNeely was guilty of the crimes for which he was convicted. Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                          8
      Pretermitting whether McNeely’s trial counsel was deficient in failing to

review the second of the two video files before trial and discuss it with him, we

conclude that the trial court was authorized to determine that McNeely failed to

establish that he was prejudiced by counsel’s alleged deficiency.4 McNeely does not

argue on appeal that there is a reasonable probability that the result of his trial would

have been different, but for his counsel’s alleged deficiency in failing to review the

second video file. Rather, he contends that but for his counsel’s deficiency in failing

to review the video and advise him about it in their discussions about the State’s plea

offer, he would have accepted the plea offer instead of proceeding with trial.

      4
         McNeely also asserts that his trial counsel was deficient because he told the
jury during his opening statement that McNeely acted in self-defense but then later
failed to present any evidence to support such a defense. As an initial matter, neither
opening statements nor closing arguments were transcribed, and thus it is unclear
what counsel specifically asserted during his opening statement or what he later
argued during closing argument. In any event, even if we were to assume that trial
counsel was deficient in raising self-defense in his opening statement, McNeely has
failed to show a reasonable probability that the outcome of his trial would have been
different in the absence of the alleged deficiency. See Williams v. State, 292 Ga. 844,
849 (3) (b) (742 SE2d 445) (2013) (ineffective assistance claim failed, where
defendant had “not shown a reasonable probability that the outcome of the trial would
have been different if the lawyer had not made the misstatement in her opening
statement”). “[T]he prejudicial effect, if any, resulting from the inconsistency between
the evidence and the misstatement was mitigated by the trial court charging the jury
that what the lawyers say in opening statement is not evidence but is [‘merely [a]
preview[ ] of what the lawyers reasonably expected the evidence to show’].”
(Punctuation omitted.) Id.

                                           9
             A defendant claiming ineffective assistance based on rejecting a
      plea offer because of counsel’s deficient advice must establish prejudice
      by showing: (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, meaning that the defendant would have accepted the plea and
      the prosecution would not have withdrawn it in light of intervening
      circumstances; (2) that the trial court would have accepted the terms of
      the negotiated plea; 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.


(Citation and punctuation omitted.) Yarn v. State, 305 Ga. 421, 426-427 (4) (826

SE2d 1) (2019). See Lafler v. Cooper, 566 U.S. 156, 164 (II) (B) (132 S Ct 1376, 182

LE2d 398) (2012); Gramiak v. Beasley, 304 Ga. 512, 515 (I) (B) (820 SE2d 50)

(2018). Thus, in the context of an ineffective assistance claim predicated on a rejected

plea offer, the defendant can establish prejudice only if, among other things, he shows

“that a reasonable likelihood exists that he would have accepted the plea offer but for

trial counsel’s deficient representation.” Gramiak, 304 Ga. at 517 (I) (C). See Lloyd

v. State, 258 Ga. 645, 648 (2) (b) (373 SE2d 1) (1988). And, we apply the clearly

erroneous standard when reviewing a trial court’s decision regarding whether to draw

an inference that the defendant would have accepted the State’s plea offer based on

disputed or unclear evidence. See Cleveland v. State, 285 Ga. 142, 146-147 (674

                                          10
SE2d 289) (2009). Applying that standard, we discern no error by the trial court in

this case.

      McNeely did not testify or offer any other direct evidence at the motion for new

trial hearing that he would have ever accepted the State’s offer of five years in

confinement followed by five years on probation, had he been advised by counsel

about the second video file. And, as previously discussed, there was testimony from

McNeely’s trial counsel at the new trial hearing reflecting that McNeely was pleased

that the case had been assigned to the same trial judge who had previously acquitted

him in a different case, that he strongly wanted to proceed to trial, and that there were

no signs that McNeely ultimately would be willing to plead guilty. Furthermore, in

McNeely’s letters to the prosecutor admitted into evidence at the new trial hearing,

McNeely criticized the State’s plea offer, proclaimed his belief in his innocence,

indicated that he was only amenable to a plea deal involving much more probation

time and less prison time, and made clear that he believed there were good reasons

to proceed with a trial.

      Given this record, the trial court was entitled to find that McNeely failed to

show that a reasonable likelihood exists that he would have accepted the State’s plea

offer, but for his trial counsel’s failure to review the second video file and discuss it

                                           11
with him. See Jacobs v. State, 306 Ga. 571, 574 (2) (a) (832 SE2d 363) (2019)

(defendant failed to show reasonable probability that she would have accepted plea

offer, where her trial lawyers testified that she “was extremely adamant that she was

not guilty and had acted in self-defense”); Port v. State, 295 Ga. App. 109, 112-113

(2) (b) (671 SE2d 200) (2008) (defendant failed to show reasonable probability that

he would have accepted plea offer if he had been “fully advised of the evidence to be

presented against him at trial,” where defendant “indicated at the motion for new trial

hearing that he rejected the . . . plea . . . because of the undesirable term of

confinement”). Accordingly, the trial court committed no error in rejecting

McNeely’s ineffective assistance claim and denying his motion for new trial.

      Judgment affirmed. Gobeil and Pipkin, JJ., concur.




                                          12
