Turner v. State

578 S.E.2d 570 (2003)

259 Ga. App. 902

TURNER v. The STATE.

No. A02A2245.

Court of Appeals of Georgia.

February 26, 2003.

Joshua D. Earwood, for appellant.

T. Joseph Campbell, Dist. Atty., Erik J. Pirozzi, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

After a trial by jury, Turner was convicted on two counts of violating the Georgia Controlled *571 Substances Act for twice selling cocaine. He contends on appeal that improper evidence was presented at sentencing.

1. At the sentencing hearing, the prosecutor recommended a sentence of fifteen years, with four or five to serve, because it was Turner's first drug conviction. The judge responded that he had information, apparently a probation report, which showed that Turner had been convicted for selling drugs in Cherokee County, Georgia, and in Jacksonville, Florida, and he asked Turner to confirm the information. Turner denied being convicted in Cherokee County but admitted the conviction in Jacksonville. In response, the prosecutor stated that his recommendation was too light, and the judge agreed. The judge then sentenced Turner to twenty years with ten to serve. It is undisputed that the State had not notified Turner prior to trial that the Jacksonville conviction would be used at sentencing.

OCGA § 17-10-2(a) allows the State to introduce evidence in aggravation of punishment "provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant's trial shall be admissible." Applying this Code section, the Supreme Court has held that a previously undisclosed probation report showing prior convictions cannot be used in fixing the length of the sentence. Munsford v. State, 235 Ga. 38, 45, 218 S.E.2d 792 (1975) (earlier codification of OCGA § 17-10-2 is Code Ann. § 27-2503(a)). See also McDuffie v. Jones, 248 Ga. 544, 549(3), 283 S.E.2d 601 (1981), rev'd on other grounds, West v. Waters, 272 Ga. 591, 593(3), 533 S.E.2d 88 (2000). Pearce v. State, 256 Ga.App. 889, 570 S.E.2d 74 (2002), cited by the State, is not on point. It addressed "evidence other than prior convictions." Id. at 890(1), 570 S.E.2d 74.

As shown above the trial court improperly used Turner's prior conviction to fix the length of his sentence. Accord McDuffie, 248 Ga. at 549, 283 S.E.2d 601. But, when the defendant fails to object to evidence of a prior conviction during the presentencing phase of the trial, the error is deemed waived. Armstrong v. State, 264 Ga. 237, 239(3), 442 S.E.2d 759 (1994). See also Eddleman v. State, 247 Ga.App. 753, 754(3), 545 S.E.2d 122 (2001), and cases cited therein. Because the issue was waived, Turner is not entitled to relief on this ground.

To the extent that Eason v. State, 215 Ga.App. 614, 615-616, 451 S.E.2d 820 (1994), holds "that the failure to follow the mandates of OCGA § 17-10-2(a) cannot be waived by the failure of the parties to object," it must be overruled. In that case, this court held that the defendant's failure to object to introduction of previously undisclosed prior convictions at the presentence hearing is not subject to waiver. This court based its holding on Sinkfield v. State, 262 Ga. 239, 416 S.E.2d 288 (1992). Sinkfield, however, does not so hold.[1]

In Sinkfield, the Supreme Court simply held that under the facts of that case, the issue had not been waived. Sinkfield, 262 Ga. at 240(2), 416 S.E.2d 288. And, as shown above, the Supreme Court has held, in a case that post-dates Sinkfield, that failure to object waives any error. Armstrong, 264 Ga. at 239, 442 S.E.2d 759. See also Bentley v. Willis, 247 Ga. 461, 463, 276 S.E.2d 639 (1981) (defendant may waive, by failing to object, trial court's failure to consider presentence report that allegedly contained favorable information). Compare Williams v. State, 271 Ga. 686, 691(2), 523 S.E.2d 857 (1999) (distinguishing death penalty cases).

2. But as a result of his attorney's failure to object to the violation of OCGA § 17-10-2(a), Turner received ineffective assistance of counsel. West, 272 Ga. at 593(2, 3), 533 S.E.2d 88, is directly on point. West holds that a defense counsel's failure to object to a prior conviction presented in aggravation of sentence without timely notice constitutes ineffective assistance of counsel. Id. The attorney's performance was deficient, and it prejudiced Turner because the length of his sentence was fixed based in part on the *572 improper evidence. Id. See also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, Turner is entitled to a new trial on the issue of punishment. West, 272 Ga. at 593-594(2, 3), 533 S.E.2d 88.

3. Turner also challenges the sufficiency of the evidence supporting his conviction on two counts of selling cocaine. But the evidence shows that an undercover agent twice purchased cocaine from Turner, and she identified Turner at trial as the person from whom she made the purchase. Any issue of proper identification was for the jury. See Johnson v. State, 159 Ga.App. 333(1), 283 S.E.2d 375 (1981).

Judgment affirmed, sentence vacated and case remanded.

SMITH, C.J., ANDREWS, P.J., JOHNSON, P.J., BLACKBURN, P.J., RUFFIN, P.J., ELDRIDGE, BARNES, MILLER, ELLINGTON, PHIPPS and MIKELL, JJ., concur.

[1] Although Eason refers to Division 1 of Sinkfield, waiver is discussed in Division 2. Division 1 of Sinkfield addresses the separate issue of whether a defendant may appeal procedural matters relating to sentencing, such as the use of improper evidence, even though the sentence is within the statutory limit. Sinkfield, 262 Ga. at 239(1), 416 S.E.2d 288.