                                THIRD DIVISION
                               ELLINGTON, P. J.,
                            BETHEL and GOBEIL, 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


                                                                       July 18, 2018




In the Court of Appeals of Georgia
 A18A0847. WALKER v. THE STATE.

      BETHEL, Judge.

      A jury convicted Harden Walker of rape and false imprisonment. In Walker v.

State, 341 Ga. App. 742, 745-47 (2) (801 SE2d 621) (2017), this Court affirmed

Walker’s convictions but vacated the trial court’s ruling on Walker’s claim for

ineffective assistance of counsel. On remand, the trial court again denied his motion

for a new trial. Walker now appeals from that ruling. For the reasons set forth below,

we affirm.

      In his motion for new trial, Walker claimed that his trial counsel failed to

adequately advise him regarding a pre-trial plea deal offered by the State. Id. at 745

(2). As this Court’s prior opinion in this case outlined,
       During pre-trial plea negotiations, the State offered to recommend to the
       trial court that Walker serve 20 years in prison in exchange for his guilty
       plea to the charged offenses of rape and false imprisonment. It is
       undisputed that, when the State made the plea offer, both the prosecutor
       and Walker’s trial counsel erroneously believed that 20 years was the
       maximum sentence that Walker could receive on the rape charge, when,
       in fact, he could receive a life sentence. Based on counsel’s erroneous
       advice that 20 years was the maximum rape sentence, Walker rejected
       the plea offer, went to trial, was convicted on both charges, and received
       a sentence of life imprisonment for rape plus five years for false
       imprisonment. Walker testified at the hearing on the new trial motion
       that trial counsel told him about the State’s 20-year plea offer and that
       “more than likely” he would have taken the plea offer if trial counsel
       had advised him that the maximum sentence for rape was life
       imprisonment. Although Walker testified that he did not learn about the
       possibility of life imprisonment until sentencing, trial counsel testified
       that, just prior to opening statements, the prosecutor told her that the
       maximum sentence for the rape charge was life imprisonment and that
       Walker was also made aware at that time that the maximum sentence
       was life.


Id. at 745 (2).

       Walker brought a motion for new trial, claiming, inter alia, that his trial

counsel was ineffective in advising him regarding the State’s plea offer. The trial




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court determined that Walker had not been prejudiced by this deficiency, and on that

and other grounds denied Walker’s motion for a new trial.

      However, in its review of the record and the trial court’s order, this Court

determined that the record did not support the trial court’s conclusion regarding

prejudice. Id. at 745-47 (2). Accordingly, this Court vacated the trial court’s denial

of Walker’s motion for new trial and remanded the case to the trial court to make

factual findings and legal conclusions relating to the prejudice prong under Strickland

and the United States Supreme Court’s ruling in Lafler v. Cooper, 566 U.S. 156, 168

(II) (B) (132 SCt 1376, 182 LE2d 398) (2012). Walker, 341 Ga. App. at 747 (2). This

Court explicitly noted that Walker could bring a new appeal from the trial court’s

ruling regarding prejudice and any resentencing undertaken by the trial court. Id.

      On remand, the trial court again found that Walker was not prejudiced by his

trial counsel’s deficiency. The trial court specifically found, in the face of disputed

testimony, that Walker had been advised prior to and during trial that the actual

maximum sentence for his charges was life imprisonment. The trial court found that

Walker decided to proceed to trial based on his belief that the State’s DNA evidence

would not be sufficient to convict him and that the prior plea offer and the confusion

regarding the maximum available sentence did not factor into his decision. The trial

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court further found that there was no evidence that, once rejected, a 20-year plea offer

from the State remained open. Moreover, the trial court found no evidence to suggest

that once the prosecutor became aware that the maximum available sentence was life

imprisonment, the State would have offered a lower sentence in exchange for a guilty

plea. This appeal followed.

      1. Walker first argues that, on remand, the trial court erred in its determination

that Walker was not prejudiced by counsel’s deficiency. We disagree.

      To establish ineffective assistance of counsel, a defendant must show that his

counsel’s performance was professionally deficient and that, but for such deficient

performance, there is a reasonable probability that the result of the trial would have

been different. See Strickland v. Washington, 466 U.S. 668, 669 (2) (104 SCt 2052,

80 LEd2d 674) (1984). Moreover, in Lafler, the United States Supreme Court

specifically ruled that where counsel’s deficient advice has led a defendant to reject

a plea offer and stand trial, to establish prejudice under the second Strickland prong,

      a defendant must show 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 defendant would have accepted the
      plea and the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted its terms,
      and that the conviction or sentence, or both, under the offer’s terms

                                           4
      would have been less severe than under the judgment and sentence that
      in fact were imposed.


Lafler, 566 U.S. at 164 (II) (B). In reviewing a claim of ineffective assistance of

counsel on appeal, this Court upholds a trial court’s factual findings and credibility

determinations unless they are clearly erroneous, but the trial court’s legal

conclusions are reviewed by this Court de novo. Goldstein v. State, 283 Ga. App. 1,

4 (3) (640 SE2d 599) (2006).

      In this case, deferring to the trial court’s factual findings, we agree that Walker

has not established a reasonable likelihood that but for his counsel’s deficient advice

regarding sentencing, the outcome of the proceeding would have been different. The

testimony at the hearing on Walker’s motion for new trial established, and the trial

court found, that the State, Walker, and his counsel believed 20 years to be the

maximum available sentence for his rape charge when the State made its plea offer.

Walker nonetheless rejected this offer and elected to proceed to trial. Even once

Walker and his counsel became aware that Walker actually faced a life sentence on

his rape charge (after being so advised by the State prior to trial), nothing in the

record suggests that Walker instructed his counsel to re-open plea negotiations or ask

the State whether the 20-year offer remained open. Cf. Daniel v. State, 342 Ga. App.

                                           5
448, 452-54 (2) (b) (803 SE2d 603) (2017) (defendant was mistakenly advised in

regard to trial court’s discretion in sentencing and was never advised that if convicted

he would be sentenced as recidivist and ineligible for parole); State v. Lexie, 331 Ga.

App. 400, 403-04 (771 SE2d 97) (2015) (defendant’s explicit statement to counsel

that he wanted to accept State’s plea offer constituted evidence that he would have

accepted offer had he been afforded effective assistance of counsel).

       Moreover, it is clear from the record that, when it made the 20-year offer to

Walker, the State was under the mistaken impression that it had offered the maximum

sentence available. Walker presented no evidence to the trial court to suggest that

once the State disabused itself of this notion that the prior offer or, for that matter, any

offer for less than a life sentence, would still be considered by the State. Cf. Lexie,

331 Ga. App. at 404 (record was clear that plea offer remained open during plea

hearing and afforded defendant opportunity to confer with counsel as to whether to

accept). Walker thus failed to carry his burden of showing that the initial 20-year

offer would have ultimately been presented to the trial court and not withdrawn by

the State due to the intervening circumstances involved in this case, namely the

State’s late realization that the maximum sentence available in this case was life



                                             6
imprisonment. Accordingly, we hold that the trial court did not err in finding that

Walker failed to establish the prejudice prong of Strickand and Lafler.

         2. Walker next argues that the trial court erred when, upon remand, it did not

hold a new hearing to allow Walker to develop a record relating to the Lafler factors.

However, Walker points this Court to no authority suggesting that a new hearing was

required.1 Moreover, it is clear from the parties’ briefs, the arguments presented at the

motion for new trial, and the trial court’s orders in this case, that all parties and the

trial court were aware of the legal standard set forth in Lafler as well as Georgia

appellate decisions applying that standard when the motion hearing was held. Walker

was thus on notice of the burden he carried in advancing his claim of ineffectiveness

relative to the plea offer and his sentence, and he has made no showing that a second

hearing following remand from this Court was necessary. This enumeration therefore

fails.

         Judgment affirmed. Ellington, P. J., and Gobeil, J., concur.



         1
         Walker obliquely suggests that this Court’s prior opinion in this case required
the trial court to hold a new hearing. However, we find no support for this argument,
as this Court’s prior opinion merely called upon the trial court to “reconsider the
prejudice prong and make appropriate factual findings and legal conclusions under
the above-stated test in Lafler[.]” Walker, 341 Ga. App. at 746 (2).

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