Timothy Collins v. State

T
                                 THIRD DIVISION
                                  DOYLE, P. J.,
                              REESE and BROWN, 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.
                                https://www.gaappeals.us/rules

                     DEADLINES ARE NO LONGER TOLLED IN THIS
                     COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                     THE TIMES SET BY OUR COURT RULES.


                                                                       April 28, 2021



In the Court of Appeals of Georgia
 A21A0084. COLLINS v. THE STATE.                                               DO-003 C

       DOYLE, Presiding Judge.

       Following a jury trial, Timothy Collins was convicted of failure to maintain his

lane,1 driving without a license,2 and four counts of serious injury by vehicle.3 Collins

appeals the subsequent denial of his motion for new trial, arguing that (1) the trial

court erred by dismissing a juror during the course of the trial; (2) the trial court erred




       1
           OCGA § 40-6-48 (1).
       2
           OCGA § 40-5-20 (a).
       3
        OCGA § 40-6-391 (a) (5) (providing that “[a] person shall not drive or be in
actual physical control of any moving vehicle while . . . . [t]he person’s alcohol
concentration is 0.08 grams or more at any time within three hours after such driving
or being in actual physical control from alcohol consumed before such driving or
being in actual physical control ended”).
by sentencing him to serve 15 years in confinement; and (3) trial counsel was

ineffective during the plea-bargaining process. For the reasons that follow, we affirm.

      Viewed in favor of the verdict,4 the record shows that at approximately 7:48

p.m. on May 6, 2017, Collins, who was driving a truck on a two-lane road in Clarke

County, crossed the center line of the roadway into oncoming traffic. S. B., who was

driving in the opposite direction with his wife and children, swerved into the left lane

in an attempt to avoid a collision with Collins, but Collins turned into S. B.’s vehicle,

striking it head-on and causing both vehicles to land in a ditch. S. B. had contusions

and an arm injury in the collison; his wife was pinned by the dashboard and sustained

serious injuries requiring hospitalization and two surgeries; and his five-year-old

daughter had a concussion, lost teeth, and a fractured wrist and pelvis.

      When Athens-Clarke County Police Officer R. C. responded to the scene, he

smelled an odor of alcohol emanating from Collins, who had slow, slurred speech and

glassy eyes. Collins told the officer he had “more [beers] than he ought to” and later

clarified that it was “around four or five beers.” Collins apologized to the other

people at the scene for causing the accident, and he told the officer that his tire went


      4
       See Jackson v. Virginia, 

443 U.S. 307

, 319 (III) (B) (99 SCt 2781, 61 LE2d
560) (1979).

                                           2
flat and caused him to swerve; investigation revealed that all four of Collins’s tires

were intact. Police found multiple beer cans throughout the ditch, an open beer can

on the driver side floorboard of Collins’s vehicle and two more empty beer cans on

the passenger floor board. Collins was unable to complete the field sobriety test, and

he was transported to the hospital from the scene. A blood serum toxicology test was

performed on Collins’s blood drawn at 9:08 p.m., and it showed an ethanol level of

359 mg/dl, which is the equivalent of a whole blood alcohol concentration of .299.

Pursuant to a search warrant, the hospital drew Collins’s blood again at 12:23 a.m.,

and testing indicated a blood alcohol level of .24.

      Collins was charged with failure to maintain his lane, driving without a license,

and four counts of serious injury by vehicle. The jury found him guilty on all charges,

and he was sentenced to 30 years, to serve 15 in confinement.5 Collins filed a motion

for new trial, which the trial court denied following a hearing, and this appeal

followed.

      1. Collins contends that the trial court erred by excusing a juror during the trial.

We disagree.



      5
          Two of the counts of serious injury by vehicle merged into other counts.

                                           3
        During the State’s case-in-chief, juror K. G. sent a note to the trial court

stating: “Need to discuss possible bias.” The court called K. G. into the courtroom,

where she advised that the previous day, as she left the courthouse, she passed by

Officer R. C., who had already testified, who was standing with another officer, who

was possibly going to testify.6 According to K. G., Officer R. C. was not speaking,

but if the other officer testified, K. G. “would be biased.” When the trial court asked

K. G. what she heard, she responded:

        As I walked by, the other officer was saying, “These charges are
        ridiculous. I’m not coming back tomorrow unless she makes me.” I
        don’t know whether or not it’s regarding this case. If it is, and he’s being
        called as a State’s witness, then he’s undermining the State’s case, and
        I’m highly biased.7


        The State then moved to have K. G. removed from the case “out of an

abundance of caution and fairness to [Collins]”; Collins objected to her removal. The



        6
        K. G. explained that another juror mentioned that the previous day he/she saw
Officer R. C. speaking with who he/she believed to be the other officer from a video
that had been shown during the trial. After K. G. returned to the jury room, the
prosecutor advised the trial court that he did not intend to call any additional police
witnesses.
        7
            The juror had not discussed what she overheard with the other members of the
jury.

                                             4
trial court removed the juror, explaining: “I think [the statement K. G. overheard] .

. . had enough of an influence that she thought it was important enough to bring it to

the [c]ourt’s attention. . . . I think it was inadvertent, but she overheard a

communication, and that is relevant to this case in her mind.” The court then replaced

K. G. with an alternate.

      “Under OCGA § 15-12-172, the trial court has discretion to discharge a juror

and replace . . . her with an alternate at any time, and we will not reverse as long as

the court’s exercise of discretion has a sound legal basis.”8 “The defendant in a

criminal proceeding has no vested interest in the service of any particular juror, but

is entitled only to a legal and impartial jury.”9

      Here, Collins does not contend that the alternate juror who replaced K. G. was

biased or otherwise unqualified to serve. And in light of the statement K. G.

overheard from an officer, which statement she believed was related to the instant

case, K. G.’s “discharge . . . had a sound basis in that it served the legally relevant



      8
        Darden v. State, 

212 Ga. App. 345

, 347 (4) (441 SE2d 816) (1994). See also
Ware v. State, 

305 Ga. 457

, 462 (3) (826 SE2d 56) (2019) (holding that when a trial
court inquires into a situation involving a sitting juror, “the court has broad discretion
to determine whether it is appropriate to remove a juror”).
      9
          Reynolds v. State, 

271 Ga. 174

, 175 (2) (517 SE2d 51) (1999).

                                            5
purpose of preserving public respect for the integrity of the judicial process.”10

Therefore, “it cannot be said that the trial court abused its discretion in removing [K.

G] from the jury.”11

      2. Collins argues that the trial court erred by sentencing him to serve 15 years

in confinement. We find no reversible error.

      On appeal, Collins argues that because he enrolled in an accountability court

and voluntarily participated in a rehabilitation program, he did not merit a maximum

sentence. Collins did not, however, make this argument to the trial court in his initial

or amended motions for new trial, and therefore, he has waived it.12 We further note

that Collins’s sentence falls within the statutory range of punishment.13



      10
        (Punctuation omitted.) Miller v. State, 

261 Ga. 679

, 680 (6) (410 SE2d 101)
(1991), quoting Beam v. State, 

260 Ga. 784

, 786 (2) (400 SE2d 327) (1991),
overruled on other grounds by Willis v. State, 

304 Ga. 686

, 706 (11) (a) (820 SE2d
640) (2018).
      11
           State v. Arnold, 

280 Ga. 487

, 490 (629 SE2d 807) (2006).
      12
           See Barber v. State, 

350 Ga. App. 309

, 314-315 (3) (827 SE2d 733) (2019).
      13
        The maximum sentence for serious injury by vehicle is 15 years. See OCGA
§ 40-6-394 (b). Here, Collins was sentenced for two counts of serious injury by
vehicle, with 15 years of confinement and 15 years of probation to be served
consecutively. At sentencing, the State tendered Collins’s seven separate prior
convictions for driving under the influence.

                                           6
      3. Collins also alleges that trial counsel was ineffective during plea

negotiations. This enumeration presents no basis for reversal.

      To prevail on this claim, Collins

      must satisfy the familiar standard of Strickland v. Washington,[14] which
      requires [him] to show both that his trial counsel’s performance was
      constitutionally deficient and that he was prejudiced by this deficient
      performance. Because a defendant must satisfy both Strickland prongs,
      we need not conduct the Strickland inquiry in any particular order or
      even address both components of the test if [Collins] makes an
      insufficient showing on one.15


      Here, because Collins

      claims that trial counsel’s deficient advice led to the rejection of a plea
      offer, [Collins] must show three things to establish prejudice: (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,
      meaning that [Collins] would have accepted the plea and the prosecution
      would not have withdrawn it in light of intervening circumstances; (2)
      that the trial court would have accepted the terms of the negotiated plea;
      and (3) that the conviction or sentence, or both, under the offer’s terms



      14
           

466 U.S. 668

, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).
      15
       (Citations and punctuation omitted.) Dresbach v. State, 

308 Ga. 423

, 425 (2)
(841 SE2d 714) (2020).

                                          7
       would have been less severe than under the judgment and sentence that
       in fact were imposed.16


“And, we apply the clearly erroneous standard when reviewing a trial court’s decision

regarding whether to draw an inference that the defendant would have accepted the

State’s plea offer based on disputed or unclear evidence.”17

       Prior to trial, the State’s plea offer was fifteen years, to serve five, and trial

counsel communicated the offer to Collins. At the motion for new trial hearing,

Collins testified that trial counsel failed to inform him of the maximum sentence for

serious injury by vehicle. Trial counsel, however, testified that he “routinely print[s]

the statutes . . . and hand[s] it to [his] clients,” and he is “pretty sure he did that” in

this case.

       Pretermitting whether counsel was deficient, however, the trial court did not

err by determining that Collins failed to demonstrate prejudice. Although Collins

testified at the motion for new trial hearing that he would have accepted the State’s

offer, he also testified that he and trial counsel believed they could win at trial. And

       16
        (Citation and punctuation omitted.)

Id. at 425-426 (2),

quoting Yarn v. State,

305 Ga. 421

, 426 (4) (826 SE2d 1) (2019).
       17
        McNeely v. State, 

356 Ga. App. 335

, 340 (847 SE2d 16) (2020), citing
Cleveland v. State, 

285 Ga. 142

, 146-147 (674 SE2d 289) (2009).

                                            8
Collins acknowledged that he wanted a probation only deal and did not know if he

would have accepted a deal that included prison time. When asked if it was correct

that he “just did not want any prison time in order to take the plea deal,” Collins

responded, “No. Nobody wants no prison time if they can get out of it, sure.”

      Trial counsel testified at the hearing that he and Collins both believed that

Collins did not cause the collision, and they were optimistic about a not guilty verdict

because they had obtained a favorable outcome in a probation revocation hearing on

the same issue. According to trial counsel, Collins never expressed a desire to

withdraw his not guilty plea, and “he wanted to get probation . . . . and stay[] in the

family court. . . .” Trial counsel further stated that Collins “would not have taken five

years[,] . . . [a]nd I don’t think he deserved five years because I didn’t think it was

due. . . . I do not believe he caused that crash. And we had a bad jury.” Collins’s

attorney in the Family Treatment Court testified at the new trial hearing that he spoke

with Collins and attempted to negotiate a favorable plea deal, but that Collins never

expressed a desire to accept the State’s offer.

      Following the conclusion of the hearing, the trial court entered its order

denying the motion for new trial, specifically rejecting Collins’ ineffective assistance

of counsel claim, stating that: “The record indicates that [Collins] believed he had a

                                           9
good chance of winning at trial. [Collins] wanted probation. Given the lack of

objective evidence beyond [Collins’s] self-serving testimony, he has failed to

demonstrate that he was prejudiced by any deficiency in counsel’s performance.”

      Given the testimony of trial counsel that Collins believed he could prevail at

trial and did not want to serve any jail time, coupled with Collins’s equivocal

testimony, “the trial court was entitled to find that [Collins] failed to show that a

reasonable likelihood exists that he would have accepted the State’s plea offer, but

for his trial counsel’s [alleged] failure to [inform him of the maximum penalty for his

charges].”18 Accordingly, the trial court did not err by denying Collins’s motion for

new trial on this basis.

      Judgment affirmed. Reese and Brown, JJ., concur.




      18
           

McNeely, 356 Ga. App. at 340

. See 

Dresbach, 308 Ga. at 426-428

(2).

                                          10

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