                            FIRST DIVISION
                             BARNES, P. J.,
                     MCMILLIAN, P. J. and MERCIER, J.

                   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


                                                                    August 1, 2019




In the Court of Appeals of Georgia
 A17A1625. TURNER v. THE STATE

      BARNES, Presiding Judge.

      In Turner v. State, 345 Ga. App. 427 (811 SE2d 97) (2018) (physical precedent

only), this Court affirmed the trial court’s denial of Tyler Turner’s motion for new

trial upon our determination that evidence of a 2007 robbery conviction was properly

admitted and that trial counsel had not rendered ineffective assistance. Id at 431-433

(1), (2). Subsequently, the Georgia Supreme Court granted Turner’s petition for

certiorari and vacated the judgment in that case, and remanded the case to this Court

“for reconsideration of the issues on appeal in light of Gramiak v. Beasley, [304 Ga.

512] (820 SE2d 50) (2018).” Turner v. State, 2018 Ga. LEXIS 742 (Ga., Nov. 15,

2018). Under Gramiak, 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
      (i.e., that the defendant 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      prosecution would not have withdrawn it in light of intervening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.


Gramiak, 304 Ga. at 515 (1) (b) (quoting Lafler v. Cooper, 566 U. S. 156, 164 II (B)

(132 SCt 1376, 182 LE2d 398) (2012).

      The decision in Gramiak, however, only relates to the ineffective assistance of

counsel claim which was addressed in Division 2 of our opinion. See Turner, 345 Ga.

App. at 431-433 (2) (a)-(d). In circumstances where the Supreme Court

      only addressed one of the divisions in our opinion, we are required to (1)
      read the Supreme Court’s opinion within the context of the opinion
      being reversed; (2) to determine whether any portions of the opinion
      being reversed were neither addressed nor considered by the Supreme
      Court; and (3) enter an appropriate disposition with regard to those
      portions that are consistent with the issues addressed and considered by
      the Supreme Court. After so doing, we find that Division 1. . . of our


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      opinion [is] . . . not affected by the Supreme Court’s decision, and thus
      remain[s] in effect.


(Citation and punctuation omitted.) Wiggins v. State, 279 Ga. App. 901, 901-902 (633

SE2d 381) (2006), citing Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d

465) (2001).

      However, we vacate Division 2 of our opinion which addressed Turner’s

ineffectiveness claim and, because the court below did not apply the criteria set forth

in Gramiak, remand the case to the trial court for consideration of that claim under

the aforementioned legal framework. If the trial court finds that no new trial is

warranted, Turner may file a timely appeal from the trial court’s order.

      Judgment affirmed in part, vacated in part and case remanded. McMillian, P.

J. and Mercier, J., concur.




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