In the Supreme Court of Georgia


                                            Decided:    January 19, 2016


                   S15A1562. THE STATE v. GARLAND.


      THOMPSON, Chief Justice.

      Appellee Steven Lee Garland was convicted of sexual battery involving

a child and sentenced to serve one year imprisonment followed by four years of

probation. His conviction was affirmed on appeal. See Garland v. State, 315

Ga. App. XXV (2012). Garland filed a petition for writ of habeas corpus which

the habeas court granted based on its determination that Garland’s appellate

counsel provided ineffective assistance. The State appeals from the order

granting Garland habeas relief, and for the reasons that follow, we affirm.

      In 2008, Garland was found guilty of sexual battery involving a child

based on allegations that he intentionally touched a child’s buttocks as he picked

her up during a church conference. After the verdict was returned and before

sentencing, Garland retained new counsel to represent him through sentencing

and on appeal. This attorney, to whom we refer as appellate counsel, filed a

motion for new trial asserting that trial counsel was ineffective on several
grounds, including an allegation that he unreasonably failed to investigate

Garland’s mental health status and failed to raise Garland’s mental condition as

an issue at trial despite knowing that Garland was under the care of a

psychiatrist and had been prescribed anti-psychotic medication.

       Prior to the hearing on his motion for new trial, Garland, who already had

served the incarceration portion of his sentence, was re-incarcerated on a

probation violation. Appellate counsel testified at the habeas hearing that in

order to secure Garland’s release from confinement, he reached an agreement

with the State which required him to withdraw the motion for new trial, and in

exchange, Garland would be returned to probation to be served in his home state

of Texas.1 Garland did not execute a written agreement to withdraw his motion

for new trial or to waive his post-conviction review rights and he was not

informed by the judge presiding over his probation revocation hearing that he

was waiving his post-conviction rights in exchange for a return to probation. In



       1
         Although it is disputed by the State, the habeas court found that “appellate counsel
and the State agreed . . . that . . . Garland, through appellate counsel, would . . . pursue review
of Garland’s conviction on the ground of plain error.” The record reflects that appellate
counsel filed a direct appeal challenging the constitutionality of the sexual battery statute and
the admission of certain evidence at trial, but Garland’s conviction was affirmed in an
unpublished opinion holding that the issues raised had not been preserved.

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fact, there is no evidence that the judge overseeing the hearing was made aware

of appellate counsel’s agreement with the State. Nevertheless, Garland’s motion

for new trial was withdrawn by appellate counsel,2 and on the same day, the

court entered an order revoking Garland’s probation, releasing him from

custody, and reinstating his probation with special conditions, one of which was

that he establish residency in Texas and serve his probation there.

       In 2013, while still on probation, Garland filed a petition for writ of

habeas corpus asserting ineffective assistance of appellate counsel. In support

of his petition, Garland testified that he was never told about the agreement

between appellate counsel and the State, that he was not consulted about the

agreement or advised of the consequences of the withdrawal of his motion for

new trial, and that he never would have agreed to waive his right to assert a

post-conviction claim of ineffective assistance of trial counsel.3 He also

presented uncontradicted expert testimony establishing that in 2002 he was


       2
         The motion to withdraw the motion for new trial made no reference to the agreement
with the State, instead asserting that Garland was withdrawing his motion after “having been
advised of the substance of his trial counsel’s probable testimony, and after consultation with
his current counsel.”
       3
        Appellate counsel at the same hearing testified that he discussed the agreement with
Garland and that Garland agreed to its terms.

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diagnosed with a continuing and progressive cognitive disorder caused by

multiple mini-strokes. These mini-strokes resulted in memory problems and

panic attacks and caused Garland to suffer from anxiety, depression, and

Asperger-type social problems which affected, to a significant degree, his ability

to assist trial counsel with his own defense. In addition, the experts collectively

opined that Garland would have been unable to discern right from wrong or to

conform his behavior to socially acceptable norms at the time of the crime.

Each expert confirmed he would have been willing to testify at trial or on

motion for new trial if he had been asked.

      The habeas court granted Garland’s petition, finding as a matter of fact

that Garland did not consent to the agreement with the State and that trial

counsel did not investigate Garland’s mental health history. Had trial counsel

properly investigated, the habeas court determined, he would have discovered

evidence showing that Garland was not competent to stand trial and that his

mental condition likely would have been a defense to criminal liability. Based

on these findings and its conclusion that trial counsel provided Garland with

ineffective assistance, the habeas court determined that appellate counsel

performed deficiently by: (1) entering into the agreement with the State without

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Garland’s consent; (2) withdrawing the motion for new trial knowing that

Garland might not have been competent to make a knowing and voluntary

waiver of post-conviction review; and (3) failing to investigate Garland’s mental

health. With regard to prejudice, the habeas court determined Garland’s mental

condition should have been offered as a defense at trial or as an issue of his

competency to stand trial, that there was a reasonable probability that the

existence of his condition caused him actual prejudice and undermined

confidence in the outcome of the trial, that the issues raised on motion for new

trial related to trial counsel’s failure to investigate Garland’s mental health were

meritorious and should not have been withdrawn, and that there was a

reasonable probability that appellate counsel’s withdrawal of the meritorious

claims undermined confidence in the outcome of the motion for new trial

proceeding. In essence, the habeas court concluded that appellate counsel, by

ineffectiveness, waived Garland’s right to claim ineffective assistance of trial

counsel. The State appealed from the habeas court’s grant of relief.

      1. To prevail on a claim of ineffective assistance of counsel, a defendant

must show both that counsel’s performance was deficient and that the deficient

performance was prejudicial to his defense. Strickland v. Washington, 466 U.S.

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668 (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783

(325 SE2d 362) (1985). When reviewing a habeas court’s decision to grant

habeas relief, this Court accepts the habeas court's factual findings unless they

are clearly erroneous, but we apply the law to those facts de novo. Smith v.

Magnuson, 297 Ga. 210, 212 (1) (773 SE2d 205) (2015).

      (a) The State concedes that appellate counsel performed deficiently in all

of the ways discussed in the habeas court’s order, including appellate counsel’s

decision to enter into an agreement with the State and withdraw the motion for

new trial without Garland’s consent, effectively waiving Garland’s right to

assert a claim of ineffective assistance of trial counsel. Accordingly, it is

undisputed that Garland satisfied his burden under the first prong of the

Strickland analysis.

      (b) Having conceded the first prong of the Strickland standard for

ineffective assistance, the State directs its challenge to the habeas court’s ruling

on the second prong, prejudice, arguing that the habeas court erred by failing to

find a reasonable probability that Garland would have received a more favorable

outcome on direct appeal but for appellate counsel’s deficient performance.

Although for ease of understanding we refer in this opinion to Garland’s second

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attorney as appellate counsel, the deficiencies upon which the habeas court’s

ruling is based all occurred during the motion for new trial proceeding and it

was the outcome of that proceeding that was the proper focus of the habeas

court’s prejudice analysis. Contrary to the State’s argument, therefore, the

habeas court was not required to consider the prejudicial effect of appellate

counsel’s errors on the subsequently filed direct appeal. Instead, the pertinent

question before the habeas court was whether there was a reasonable probability

that but for appellate counsel’s deficient performance on motion for new trial,

the outcome of the motion for new trial proceeding would have been different.

      When viewed in this perspective, and given the State’s concessions and

the habeas court’s factual findings to which we must defer because they have

evidentiary support, see Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112)

(2012), we cannot say that the habeas court erred when it concluded that

Garland was prejudiced by appellate counsel’s failure to obtain Garland’s

consent to the withdrawal of the motion for new trial. As previously noted, the

State conceded that appellate counsel performed deficiently when he entered

into an agreement with the State without Garland’s consent, an agreement

affecting the disposition of the charges filed against Garland as well as his post-

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conviction rights. The habeas court, in its discretion, also credited Garland’s

testimony that he would not have accepted the terms of the agreement had he

been made aware of it. See Humphrey v. Walker, 294 Ga. 855, 860 (757 SE2d

68) (2014) (reaffirming that this Court must “yield to the judgment of the habeas

court with respect to the credibility of witnesses who testified in the habeas

proceedings.”). Reasonable appellate counsel in these circumstances would

have discussed the agreement with Garland and withdrawn the motion for new

trial only with his consent after fully disclosing that withdrawal of the motion

for new trial would effectively waive any post-conviction claim Garland may

have had regarding trial counsel’s performance, including trial counsel’s failure

to undertake even the slightest mental health evaluation. See Georgia Rules of

Professional Conduct, Rule 1.4 (a) (lawyer shall promptly inform client of any

decision with respect to which the client’s informed consent is required); ABA

4th Ed. of the Criminal Justice Standards for the Defense Function, Standard 4-

5.2 (“The decisions ultimately to be made by a competent client, after full

consultation with defense counsel, include . . . whether to accept a plea offer .

. . and whether to appeal . . .”); ABA 4th Ed. of the Criminal Justice Standards

for the Defense Function, Standard 4-6.4 (a) (defense counsel should not accept

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disposition agreement waivers of post-conviction claims addressing ineffective

assistance of counsel unless such claims are based on past instances of conduct

specifically identified in an agreement or in the transcript of proceedings that

addresses the agreement); ABA 4th Ed. of the Criminal Justice Standards for the

Defense Function, Standard 4-6.4 (b) (defense counsel should not agree to

waiver of right to appeal or to contest conviction in collateral proceedings

“unless after consultation with the client it is agreed that the risk of losing the

negotiated disposition outweighs other considerations.”). See also Strickland,

466 U.S. at 687-688 (III) (to prove deficient performance by legal counsel,

defendant must show that counsel performed his or her duties in an objectively

unreasonable way, considering all the circumstances and in light of the

prevailing professional norms). The prejudicial effects of appellate counsel’s

failure to obtain Garland’s consent are heightened because of the uncontradicted

expert evidence of Garland’s lack of competence and diminished mental

condition, factors which were neither investigated by trial counsel nor presented

to the trial court on motion for new trial and which clearly call into question the

fairness of his trial. Accordingly, we agree with the habeas court’s conclusion

that Garland satisfied his burden of establishing a reasonable probability that he

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would have prevailed on his motion for new trial had the motion not been

unreasonably withdrawn by appellate counsel. See Strickland, 466 U.S. at 694

(III) (B) (explaining that a “reasonable probability” is “a probability sufficient

to undermine confidence in the outcome.”). It follows that the habeas court did

not err by granting habeas relief on this ground.

      We find no merit in the State’s assertion that the habeas court erred by

failing to address the question of whether Garland’s “trial was likely tainted by

a specific error or omission of a constitutional dimension necessitating a retrial.”

It is beyond dispute that a defendant who receives ineffective assistance of

counsel has been denied a right of “constitutional dimension.” See Strickland,

466 U.S. at 686-687. For this reason, we also reject the State’s suggestion that

despite being denied his constitutional right to effective legal counsel, Garland

was not entitled to habeas relief “because he almost certainly is going to be

found guilty” if he is tried again.

      2. In light of Division 1, we need not reach the other grounds upon which

the habeas court granted the writ.

      Judgment affirmed. All the Justices concur, except Melton, JJ., not

participating.

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