                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 17, 2017




In the Court of Appeals of Georgia
 A17A1053. JONES v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Kiel Jones was convicted of rape, aggravated child

molestation, and incest. Jones appeals, challenging the sufficiency of the evidence,

the denial of an oral request for a pretrial competency evaluation, the effectiveness

of his trial counsel, the appointment of a public defender to assist his visually

impaired defense counsel, purported bias by the trial court, the trial court’s

participation during voir dire, and the sentence imposed for incest. Finding no

reversible error, we affirm.

      1. Sufficiency of the evidence.

      In reviewing the sufficiency of the evidence supporting a criminal conviction,

we do not weigh the evidence or resolve conflicts in witness testimony, but instead
determine whether, after viewing the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Tinson v. State, 337 Ga. App. 83 (1) (785 SE2d 914)

(2016). So viewed, the evidence shows that when Jones’ niece was 11 years old, he

forcibly inserted his penis into her vagina, placed his penis on her lips, and ejaculated

on her stomach. “The evidence was sufficient for a rational trier of fact to find the

essential elements of the crimes of [which Jones was convicted] beyond a reasonable

doubt.” Id. at 85-86 (1). See OCGA §§ 16-6-1 (a) (1) (rape), 16-6-4 (c) (aggravated

child molestation by act of sodomy), 16-6-22 (a) (6) (incest between uncle and niece).

      2. Competency hearing.

      Jones contends that the trial court erred in denying his counsel’s pretrial

request for a competency evaluation of Jones. We disagree.

      The record shows that on the call of the case for trial, Jones and the state

informed the court that they had negotiated a guilty plea to reduced charges. During

the subsequent plea colloquy, Jones told the court that before coming to court he had

smoked marijuana and had taken a blood pressure medication and an antidepressant.

He later informed the court that he previously was diagnosed with depression and

bipolar disorder, and that in 2009 he had been hospitalized for depression. When

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asked by both the prosecuting attorney and the judge if he understood the proceedings

and everything that was happening in court, Jones affirmed that he did understand the

proceedings and what was happening. Upon further inquiry by the court, Jones

reiterated that he was able to understand the proceedings and continue with the plea.

He also told the court that there was nothing about his depression or bipolar disorder

that interfered with his ability to understand the proceedings. Defense counsel stated

that he was “absolutely certain” that Jones was competent and that he was not

laboring under any mental defect. The judge also observed on the record that Jones

“looks the same as he’s looked every time he’s appeared before the [c]ourt. He

appears to be coherent, alert, and does not appear, at least in my mind, to be laboring

under any type of psychotic or psychiatric issues.”

          After further discussion regarding the negotiated plea, Jones decided to

withdraw his guilty plea and proceed with a jury trial. At that point, defense counsel

made an oral request for a mental health evaluation of Jones. The trial court denied

the request, explaining, “You’ve indicated to the [c]ourt repeatedly that you don’t

believe your client has any mental health issues and that he’s otherwise competent to

take this plea. And if he’s competent to enter a plea of guilty, he’s competent for

trial.”

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      “A criminal defendant’s due process right to a fair trial encompasses the right

not to be tried or convicted while incompetent to stand trial.” Phelps v. State, 296 Ga.

App. 362, 364 (1) (674 SE2d 620) (2009) (citation omitted). Pursuant to OCGA § 17-

7-130 (b) (1), an accused may file a motion requesting that the trial court order a

competency evaluation. Although no such motion was filed in this case,

“constitutional guarantees require the trial court to inquire into competency, even

where state procedures for raising competency are not followed, if evidence of

incompetence comes to the court’s attention.” Phelps, supra (citations omitted).

      Mental competency is presumed, so absent evidence of a defendant’s
      incompetency, a trial court need not conduct a competency hearing. [But
      i]f the court has sufficient information at the time of trial to raise a bona
      fide doubt about the defendant’s ability to understand the proceedings,
      appreciate their significance, or assist his lawyer in presenting his
      defense, the court must conduct a competency hearing.

Powers v. State, 314 Ga. App. 733, 734-735 (1) (b) (725 SE2d 848) (2012) (citations

omitted). In determining whether the trial court violated Jones’ procedural due

process rights by failing to hold a competency hearing, we must focus on three

factors: “(1) evidence of the defendant’s irrational behavior; (2) the defendant’s

demeanor at trial; and (3) prior medical opinion regarding the defendant’s

competence to stand trial. Such an analysis focuses on what the trial court did in light


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of what it knew at the time of the trial or plea hearing.” Johnson v. State, 209 Ga.

App. 514, 516 (2) (433 SE2d 717) (1993) (citations and punctuation omitted).

      None of these three factors raised a bona fide doubt about Jones’ ability to

understand the proceedings and thus the trial court was not required to conduct a

competency hearing. The record does not show that Jones engaged in any irrational

behavior prior to the start of the trial or that his demeanor exhibited incompetence.

On the contrary, the trial court expressly noted on the record that Jones appeared

coherent and alert, and a review of the transcript reveals that he responded

appropriately to questions. See Flesche v. State, 254 Ga. App. 3, 5 (1) (561 SE2d 160)

(2002) (throughout proceedings the defendant displayed no outbursts or episodes of

disorientation, and he responded coherently to questions). Moreover, “his attorney

concluded that he was fully competent to enter a guilty plea, and the court was

authorized to take this into consideration in determining the need for a mental

evaluation.” Perry v. State, 269 Ga. App. 178, 181 (2) (603 SE2d 526) (2004)

(citation omitted). Accord Flesche, supra. Although the trial court was informed that

Jones had previously been diagnosed with depression and bipolar disorder, there was

no evidence of a prior medical opinion that such diagnoses rendered Jones

incompetent to stand trial. Indeed, Jones himself told the court that there was nothing

                                          5
about those conditions that interfered with his ability to participate in the

proceedings. See Traylor v. State, 280 Ga. 400, 404-405 (4) (a) (627 SE2d 594)

(2006). In light of what the trial court knew at the time of trial, we cannot find that

it erred in proceeding without ordering a mental evaluation. See Perry, supra at 182

(2); Flesche, supra.

      3. Ineffective assistance of counsel.

      Jones claims that his trial counsel was ineffective in stating his opinion that

Jones was competent without first seeking a professional evaluation of his

competency and in failing to request a continuance on the day of trial when Jones

claimed he had smoked marijuana and taken an antidepressant prior to trial. “In order

to prevail on a claim of ineffective assistance of counsel, [Jones] must show [both]

that counsel’s performance was deficient and that the deficient performance so

prejudiced [Jones] that there is a reasonable likelihood that, but for counsel’s errors,

the outcome of the trial would have been different.” Robinson v. State, 277 Ga. 75-76

(586 SE2d 313) (2003) (citation omitted). Jones has failed to make the required

showings.

      (a) Counsel’s statement that Jones was competent.



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      At the motion for new trial hearing, counsel testified that he did not request an

evaluation of Jones prior to the first day of trial because he “appeared to be

completely competent.” Counsel had reviewed Jones’ mental health records, but

explained that he believed Jones was competent because he had spent a lot of time

with Jones preparing for trial and Jones clearly understood what was going on during

those interactions. Counsel testified that at those meetings Jones “was functioning

very, very well. . . . As I recall, he was intelligent. He was articulate. He was oriented

to time and place. He answered my questions. [And] he was a lot more

communicative than most [clients.]”

      Jones presented no evidence contradicting counsel’s observations and opinion

of Jones’ competency to stand trial. At the motion for new trial, Jones attempted to

introduce a written statement purporting to be from a doctor who opined, based on

her alleged review of the trial transcript and Jones’ medical records, that the trial

court should have granted trial counsel’s oral request for an evaluation of Jones’

competency to proceed to trial. However, the doctor’s statement did not opine that

Jones was incompetent or that counsel was wrong to state otherwise, Jones’ medical

records were not attached to the document, and the doctor did not testify at the

hearing. Moreover, the trial court ruled that the document was inadmissible and Jones

                                            7
has not enumerated that ruling as error. Even if the document had been admitted, it

provided no evidence that Jones was in fact incompetent and did not contradict trial

counsel’s pretrial observations and opinion that Jones was competent to stand trial.

             The burden is on the defendant to show that his attorney’s
      omissions have prejudiced his case. . . . [However, Jones] did not offer
      any evidence at the hearing on his claim of ineffective assistance of trial
      counsel to support his assertion that his . . . competency should have
      been [further evaluated before counsel stated he was competent to stand]
      trial. Accordingly, we conclude that [Jones] has failed to carry his
      burden to prove the prejudice prong of his claim that trial counsel was
      ineffective[.]

Jennings v. State, 282 Ga. 679, 680 (2) (653 SE2d 17) (2007) (citations and

punctuation omitted). Absent a showing of prejudice, the trial court did not err in

denying Jones’ claim of ineffective assistance of counsel on this ground. See Huzzie

v. State, 236 Ga. App. 192, 193-194 (2) (512 SE2d 5) (1999).

      (b) Failure to request a continuance.

       After Jones claimed that he had smoked marijuana and taken an antidepressant

before coming to court, the judge immediately questioned Jones to determine whether

he could continue with the court proceedings. During that inquiry, Jones told the

judge that he had understood everything that had already gone on in court, that he was

able to understand the proceedings, and that he was able to continue with the


                                          8
proceedings. The judge noted that, contrary to Jones’ claim, he did not appear to be

heavily drugged, that he appeared alert and coherent, and that she believed he was

toying with the court.

       At the motion for new trial hearing, trial counsel testified that he did not know

if Jones was being truthful about the drugs, that he had no evidence that Jones had

actually smoked marijuana before coming to court, and that he thought Jones was

merely trying to undermine the negotiated guilty plea. On appeal, Jones has pointed

to no evidence that he was in fact impaired and unable to continue with the court

proceedings or that the trial court would have granted a motion for a continuance on

that basis. “This [c]ourt has held that it obviously is not ineffective for counsel to fail

to request a continuance for delay only.” Polk v. State, 225 Ga. App. 257, 259 (1) (d)

(483 SE2d 687) (1997) (citation and punctuation omitted). And “the failure to make

a meritless motion or objection does not provide a basis upon which to find

ineffective assistance of counsel.” Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d

467) (2014) (citation omitted). Accordingly, the trial court did not err in denying the

claim of ineffective assistance of counsel.

       4. Appointment of assistant.



                                            9
      The trial court assigned an assistant public defender to help trial counsel, who

is visually impaired, “to ensure that [counsel had] the benefit of sighted counsel in the

event that there were issues that arose during trial regarding exhibits and other

matters[.]” The court clarified that the appointed helper was not Jones’ lawyer. Jones

contends that the trial court erred in assigning the assistant public defender to serve

in that capacity. However, he has not shown where in the record he raised such an

objection and thereby preserved this enumeration of error for consideration, and our

review of the trial transcript has not revealed any such objection. See Court of

Appeals Rule 25 (a) (1). “Generally, to preserve appellate review of a claimed error,

there must be a contemporaneous objection made on the record at the earliest possible

time. Otherwise, the issue is deemed waived on appeal.” Benton v. State, 300 Ga. 202,

205 (2) (794 SE2d 97) (2016) (citation and punctuation omitted). Because Jones

failed to make a contemporaneous objection to the court’s appointment of the

assistant, he “has waived his right to appellate review of the trial court’s action.” Id.

      5. Bias.

      Jones complains that the trial court showed bias in favor of the state by

instructing the state’s attorney to rephrase three questions during voir dire and by

ruling that a prosecutor’s question during trial assumed facts not in evidence. As an

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initial observation, “we do not believe that the trial court exhibited improper bias or

favoritism toward or against either the [s]tate or the defendant during [these]

exchange[s].” Scott v. State, 332 Ga. App. 559, 566 (4) (c) (774 SE2d 137) (2015).

Regardless, Jones raised no objections to any of these exchanges at trial and therefore

he cannot raise them for the first time on appeal. Benton, supra.

      6. Voir dire.

      Jones claims that the trial court erred by participating in the voir dire

questioning of several prospective jurors. Once again, Jones “has failed to indicate

where he raised such an objection, and the pages of the voir dire transcript he cites

to do not contain such an objection. [He] therefore has not preserved the issue for

appeal.” Williams v. State, 326 Ga. App. 418, 420 (2) (756 SE2d 650) (2014) (citation

omitted). Moreover, “[a]bsent some abuse of discretion, which [Jones has not shown]

here, participation by the trial judge in the voir dire examination of prospective jurors

provides no basis for reversal.” Curry v. State, 255 Ga. 215, 219 (2) (d) (336 SE2d

762) (1985).

      Jones also complains that the court erred in instructing defense counsel to

move on from questioning a prospective juror about her understanding of the English

language because that topic had already been covered. We find no error where “the

                                           11
trial court merely prohibited defense counsel from asking [the juror] repetitive

questions[.]” Chancey v. State, 256 Ga. 415, 425 (3) (B) (b) (349 SE2d 717) (1986).

Indeed, “[c]ontrol of the voir dire examination is within the sound discretion of the

trial court and the court’s discretion will not be interfered with unless the record

shows a manifest abuse of that discretion.” Brockman v. State, 292 Ga. 707, 720 (8)

(739 SE2d 332) (2013). The record here shows no such abuse of discretion.

      7. Sentence for incest.

      Jones was sentenced under the recidivist statute, OCGA § 17-10-7, to the

maximum 50-year sentence for incest. See OCGA § 16-6-22 (b). Jones contends that

this sentence must be vacated because the trial judge erroneously declared that she

did not have discretion to probate any part of that sentence. We disagree.

      At the sentencing hearing, the judge stated that she was sentencing Jones under

the recidivist statute and then explained that subsection (a) of that statute “compels

this [c]ourt to impose the maximum sentence, even though there is some authority for

portions of that sentence to be suspended or probated. However, in light of the

offenses with which you are charged and the penalty range, the [c]ourt does not

believe that it has any discretion in terms of the sentence that it will impose.”



                                         12
(Emphasis supplied). See OCGA § 17-10-7 (a) (“the trial judge may, in his or her

discretion, probate or suspend the maximum sentence prescribed for the offense”).

      Contrary to Jones’ claim, the judge expressly stated that under 17-10-7 (a) she

had the discretion to probate the maximum sentence prescribed. After recognizing

that discretion, it appears from her entire statement that she simply believed that in

the exercise of it, given the severity of the crimes, she had no real choice but to

impose the maximum sentence without any probation. “Unless affirmative evidence

shows otherwise, the trial court is presumed to have exercised its discretion in

imposing [a] sentence.” Cody v. State, 324 Ga. App. 815, 827 (5) (b) (752 SE2d 36)

(2013) (citation and punctuation omitted). Because there is no affirmative evidence

that the trial court did not know that it could exercise its discretion, and instead the

record shows that the court was fully cognizant of the discretion vested in it, we find

no error. Id. (no basis for disturbing sentences imposed where trial court expressly

noted the language of OCGA § 17-10-7 (a) affording judicial discretion to probate

part of maximum sentence).

      Judgment affirmed. Branch and Bethel, JJ., concur.




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