                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, 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


                                                                  September 25, 2015




In the Court of Appeals of Georgia
 A15A1348. COOPER v. THE STATE.

      MCFADDEN, Judge.

      After a bench trial, DeMarco Cooper was convicted of four counts of selling

cocaine, five counts of distributing cocaine within 1,000 feet of a public housing

project, three counts of using a communication facility to commit or facilitate the

commission of a felony (sale of cocaine), one count of possessing cocaine with intent

to distribute, and one count of possessing a counterfeit controlled substance. Cooper

appealed, and this court vacated the judgments of conviction and remanded the case

to the trial court for an evidentiary hearing on the issue of whether Cooper knowingly

and voluntarily waived his right to a jury trial. See Cooper v. State, 324 Ga. App. 451,

452-453 (1) (751 SE2d 102) (2013). In that prior appeal, this court also went on to

review the sufficiency of the evidence supporting the vacated judgments of
conviction, reasoning that the trial court, after the remand hearing on the issue of

waiver of the right to a jury trial, would not be authorized to reinstate any conviction

that the state had failed to prove. Id. at 453 (2). This court then determined that there

was insufficient evidence to establish that Cooper had possessed a counterfeit drug

or that he had sold drugs within 1,000 feet of a public housing project so those

convictions could not be reinstated. Id. at 455-456 (2) (b & c).

      On remand, after holding an evidentiary hearing, the trial court found that

Cooper had knowingly and voluntarily waived his right to a jury trial. The trial court

reinstated the convictions that were not barred by this court’s prior opinion, dismissed

the other charges, and denied Cooper’s request for re-sentencing him as a first

offender. Cooper appeals.

      1. Waiver of right to jury trial.

      Cooper contends that the trial court erred in finding that he knowingly and

voluntarily waived his right to a jury trial. We disagree.

             A criminal defendant must personally and intelligently participate
      in the waiver of the constitutional right to a trial by jury. When the
      purported waiver of this right is questioned, the [s]tate bears the burden
      of showing that the waiver was made both intelligently and knowingly,
      either (1) by showing on the record that the defendant was cognizant of
      the right being waived; or (2) by filling a silent or incomplete record
      through the use of extrinsic evidence which affirmatively shows that the

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       waiver was knowingly and voluntarily made. The waiver, however, need
       not follow any particular form. The only real issue is whether the
       defendant intelligently agreed to a trial without jury. On appeal, we will
       affirm a trial court’s determination that a defendant validly waived the
       right to a jury trial unless that determination is clearly erroneous.

Green v. State, 331 Ga. App. 801, 808 (3) (771 SE2d 518) (2015) (citations and

punctuation omitted).

       At the evidentiary hearing in this case, the state introduced a written waiver of

the right to a jury trial signed by Cooper and his attorney. On the written waiver,

Cooper acknowledged that he understood the offenses charged, the maximum

possible sentence for those charges, his right to a jury trial and the various rights

associated with a jury trial. On the document, Cooper expressly waived his right to

a jury trial and requested that his case instead be set for trial before the court, stating

that he understood that in such a trial the court would “decide[] the issues in the case

without a jury present.”

       The state also presented the testimony of Cooper’s attorney, who testified that

it was his signature and handwriting on the waiver form and that he had executed the

document with Cooper. Although he did not specifically recall discussing the matter

with Cooper, counsel testified that he would have gone over the form in detail with

Cooper and would have explained to him that it gave up his right to a jury trial in

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favor of a bench trial before only the judge. See Jones v. State, 294 Ga. App. 169, 170

(1) (670 SE2d 104) (2008) (extrinsic evidence showing waiver of jury trial may

include testimony by defense counsel about his routine or standard practices).

      Based on our review of the record, we conclude that the trial court did not err

in determining “that the [s]tate fulfilled its burden of demonstrating that [Cooper]

personally, voluntarily, knowingly, and intelligently waived his right to a jury trial.

[Cits.]” Green, supra at 809 (3).

      2. First offender status.

      At the sentencing hearing after the bench trial, the trial court informed Cooper

that he was eligible for first offender status and the court indicated that it would grant

such status if Cooper requested it. But after the trial court further explained the

benefits and risks of first offender sentencing, Cooper declined it and the court did

not sentence him as a first offender. Upon remand of the case, Cooper requested that

the court re-visit the issue and re-sentence him as a first offender. The trial court

heard arguments from both Cooper and the state, after which it denied the request.

            Refusal to consider first offender treatment as part of a sentencing
      formula or policy of automatic denial constitutes an abuse of discretion
      and constitutes reversible error. However, there must be a clear
      statement in the record that constitutes either a general refusal to


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      consider such treatment or an erroneous expression of belief that the law
      does not permit the exercise of such discretion.

McCullough v. State, 317 Ga. App. 853 (733 SE2d 36) (2012) (citation omitted).

Here, the record does not contain any such clear statement by the trial court indicating

a general refusal to consider first offender treatment or an erroneous belief that the

law does not permit the exercise of such discretion. On the contrary, it is clear from

the record that the trial court understood that it could sentence Cooper as a first

offender, but properly exercised its discretion in deciding not to do so. Accordingly,

“we discern no basis for reconsideration of [Cooper’s] sentence.” Id. at 856.

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




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