In Harris v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for child molestation and enticing a child for indecent purposes, holding that his defense attorney did not provide ineffective assistance for failing to request first offender treatment because the defendant was not eligible for it.
The record showed that the defendant Harris pleaded guilty to three counts of child molestation and one count of enticing a child for indecent purposes. A year later, he filed a motion for an out-of-time appeal, alleging that his trial attorney had provided ineffective assistance. Specifically, he argued that trial counsel incorrectly told him he was not eligible to be sentenced as a first offender and failed to inform him of his right to appeal from his guilty plea. The defendant argued that he was eligible for first offender treatment and would have been given it if counsel had asked for it.
The Georgia first offender statute expressly prohibits first offender treatment for any person convicted of certain sexual offenses (including child molestation). There is a provision, however, in O.C.G.A. § 17-10-6.2 that seems to provide an exception to this rule.
O.C.G.A. § 17-10-6.2(b) provides that someone convicted of a sexual offense shall be sentenced to the mandatory minimum term of imprisonment provided by law and that no part of this mandatory minimum sentence may be probated by the court. Subsection (b) also states that no one convicted of a sexual offense may be sentenced under the first offender act.
Defense attorneys in Georgia had previously been able to persuade judges to grant first offender treatment in child molestation cases based on the language in subsection (c) which provides that the court may “deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof” if the defendant satisfies certain other criteria listed in the statute. The defense had successfully argued that the clause “or any portion thereof” applied to the entirety of subsection (b), including the provision regarding first offender treatment—meaning that the trial court could choose to deviate by imposing a sentence below the mandatory minimum for the crime charged as well as sentence the defendant as a first offender.
This argument, however, was rejected by the Court of Appeals in Tew v. State (See, GA Court of Appeals: No First Offender in Sex Offense Cases) and, as a result, trial courts no longer have the authority to sentence defendants convicted of child molestation under the first offender act.
Therefore, since the defendant was technically not entitled to first offender treatment, the Court of Appeals rejected the claim that trial counsel was ineffective for failing to request it at sentencing.
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