FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, 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.
September 29, 2020
In the Court of Appeals of Georgia
A20A1434. HARDEMAN v. THE STATE.
COLVIN, Judge.
After a jury trial that occurred in October 2003, Tanuioe Laquient Hardeman
was convicted of one count of rape, two counts of child molestation, and two counts
of simple battery. He appeals from the denial of his motion for new trial, arguing that
he received ineffective assistance of counsel. He also argues that he has been
deprived due process of law because of the 17-year appellate delay. For the following
reasons, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
Thus viewed in favor of the jury’s verdict, the record shows that when K. T.
was five years old, she went to live with her mother and Hardeman, her step-father.
When she was 9 years old, K. T. made an outcry to her mother. K. T. told her mother
that if she had a bad day at school that day, Hardeman would spank her bare bottom
with his hand, wooden spoon, or a belt and then would do “bad touches” with her.
The mother testified that she had seen blood on her daughter’s underwear on one
occasion and that there were several times when, against their usual practice, the door
to the house would be locked when she came home from work, and Hardeman would
take a long time to answer it. K. T. also told her mother that Hardeman had molested
her in the car on the way to church.
K. T. also made an outcry to her school counselor, telling her that Hardeman
had frequently molested her after school and in the car on the way to church.
K. T. also made an outcry to her biological father when she visited him at his
house in Tennessee over the summer. K. T.’s father then called the police, and a
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forensic interview and sexual assault exam were conducted. The nurse who performed
the sexual assault exam testified that K. T. told her that Hardeman had “messed with
her private parts.” The examination revealed that K. T.’s “hymenal tissues was
interrupted,” which was consistent with “chronic blunt penetrating trauma.” The
nurse noted that the injury to K. T.’s hymen was “well healed” and “consistent with
a chronic injury.”
K. T. testified at trial that when she was in third grade, Hardeman began
whipping her with belts, sticks, spatulas, and wood on her bare bottom when they
were the only ones in the house. K. T. further testified that, about the same time,
Hardeman began putting his “private part” in her “private part.” K. T. also explained
that Hardeman had twice raped her in the car on the way to church.
1. Hardeman argues that he received ineffective assistance of counsel because
his trial counsel did not adequately consult with him prior to trial, failed to conduct
adequate cross-examination of several witnesses, and failed to present a good
character defense. For the following reasons, we find no error.
To prevail on his claim that his trial counsel rendered ineffective assistance,
Hardeman must show both that his attorney’s performance was deficient and that he
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was prejudiced as a result. Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984).
Under the first prong of this test, counsel’s performance will be found
deficient only if it was objectively unreasonable under the circumstances
and in light of prevailing professional norms. And under the second
prong, prejudice is demonstrated only where there is a reasonable
probability that, absent counsel’s errors, the result of the trial would
have been different. A reasonable probability is defined as a probability
sufficient to undermine confidence in the outcome. Failure to satisfy
either prong of the Strickland test is sufficient to defeat a claim of
ineffective assistance, and it is not incumbent upon this Court to
examine the other prong. And although both the performance and
prejudice components of an ineffectiveness inquiry involved mixed
questions of law and fact, a trial court’s factual findings made in the
course of deciding an ineffective assistance of counsel claim will be
affirmed by the reviewing court unless clearly erroneous.
(Citations and punctuation omitted.) Green v. State, 302 Ga. 816, 817-818 (2) (809
SE2d 738) (2018).
(a) Hardeman first argues that his trial counsel’s performance was ineffective
because he spent an inadequate amount of time conferring with him prior to trial. We
find no error.
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At the motion for new trial hearing, Hardeman testified that he had met with
his trial counsel prior to trial, that trial counsel had secured a pre-trial release bond,
and had explained the charges and evidence against him. He further testified that trial
counsel met with him at least four other times prior to trial. Hardeman contends that
if his trial counsel had spent more time with him, he would have learned that the
victim’s biological father loathed him. However, “there exists no magic amount of
time which counsel must spend in actual conference with this client.” (Punctuation
and footnote omitted.) Williams v. State, 285 Ga. App. 190, 193 (3) (a) (645 SE2d
676) (2007). Further, Thomas’s testimony was consistent with other testimony
presented at trial. Thus, Hardeman did not prove “how additional communications
with his lawyer would have changed the outcome of his trial.” (Punctuation and
footnotes omitted.) Id. at 194 (3) (a).
(b) Hardeman argues that his trial counsel rendered ineffective assistance by
failing to thoroughly cross-examine the State’s witnesses. However, because
Hardeman did not specifically raise this argument before the trial court, it is waived
for purposes of appeal. See Johnson v. State, 290 Ga. App. 255, 258 (1) (c) (659
SE2d 638) (2008). Further, “pretermitting [Hardeman’s] waiver, the attorney’s
decisions on how to conduct cross-examinations and which defenses to pursue are
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matters of trial tactics that do not amount to ineffective assistance of counsel.”
(Punctuation and footnote omitted.) Id.
(c) Hardeman also argues that his trial counsel rendered ineffective assistance
by failing to present a good character defense. We are unpersuaded.
Hardeman argues that although trial counsel had seven people write letters and
two witnesses testify as to Hardeman’s good character at the sentencing hearing, his
failure to call these good character witnesses at trial resulted in deficient performance.
However, “there is no indication in the record on appeal as to whether the failure to
call [these witnesses] reflects some deficiency on the part of trial counsel. For
example, trial counsel may have been reluctant to introduce evidence which may have
deprived appellants of the right to open and conclude the argument with the jury.”
(Citations omitted.) Avans v. State, 207 Ga. App. 329, 330 (2) (427 SE2d 826) (1993).
Without the testimony of his trial counsel at the motion for new trial hearing,
Hardeman could not prove that trial counsel’s decision not to call these character
witnesses was not a strategic one. Accordingly, Hardeman “has not overcome the
strong presumption that his trial counsel’s performance was reasonable.” (Citation
omitted.) Watson v. State, 299 Ga. App. 702, 704 (1) (683 SE2d 665) (2009).
Compare Nihart v. State, 227 Ga. App. 272, 274 (1) (a) (488 SE2d 740) (1997) (trial
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counsel did not render ineffective assistance by providing good character evidence
even though it opened the door to the admission of defendant’s prior crimes, because
this court “refuse[s] to second-guess counsel’s strategic decision”) (citation and
punctuation omitted).
2. Hardeman argues that his due process rights were violated by a lengthy posttrial delay. For the reasons described below, Hardeman’s due process claim fails
because he has not demonstrated any prejudice caused by the delay.
In reviewing a trial court’s ruling on a defendant’s claim of due process
violations, the decision of the trial court must be affirmed unless the trial court abused
its discretion. Spradlin v. State, 262 Ga. App. 897, 901 (3) (587 SE2d 155) (2003).
Evidence adduced at the hearing on the motion for new trial demonstrated that
16 years had elapsed from conviction to appeal due to the inaction on the part of
Hardeman and Hardeman’s post-conviction attorney and the failure of the trial court
to rule on his motion for new trial. Hardeman was convicted on October 14, 2003,
after a jury trial. On November 6, 2003, Hardeman wrote a pro se letter to the trial
court seeking an appeal. Around the same time, Hardeman sent a letter to the clerk
of court, requesting to appeal his conviction and a trial transcript. On November 24,
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2003, Lee Henley, the county’s contract public defender at the time, filed a boilerplate
motion for new trial even though he never met with Hardeman.
With no legal education or even a high school diploma, Hardeman thought he
had missed his appeal. Hardeman heard nothing from his counsel or the trial court
while serving his sentence. Kenneth Krontz, Hardeman’s trial counsel, died on April
28, 2008. Hardeman was released in 2013.
Hardeman did not follow up with the trial court regarding his letters seeking
an appeal during his sentence or after his release. He testified that he did not do
anything further to pursue his appeal until he received a rule nisi in the mail in March
2019. After receiving the rule nisi, Hardeman hired appellate counsel to file a
particularized motion for new trial and to represent him during the motion for new
trial hearing on November 5, 2019. Hardeman appealed from the trial court’s order
denying the motion.
At the outset, we reiterate our Supreme Court’s admonition that
we do not condone this inordinate delay in the motion for new trial
proceeding[.] These delays put at risk the rights of defendants and crime
victims and the validity of convictions obtained after a full trial. We
therefore reiterate that it is the duty of all those involved in the criminal
justice system, including trial courts and prosecutors as well as defense
counsel and defendants, to ensure that the appropriate post-conviction
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motions are filed, litigated, and decided without unnecessary delay. We
recognize that all of these participants in the system sometimes have
incentives, whether tactical or simply the press of other business, that
weigh against working to alleviate delays in post-conviction litigation
– but there are rarely good explanations for long delays. And even if
long-delayed appeals rarely result in outright reversals of convictions or
only retrials or resentencings, these extended and unjustified delays in
resolving criminal cases make our State’s criminal justice system appear
unfair and grossly inefficient.
(Citations and punctuation omitted.) Owens v. State, 303 Ga. 254, 258-259 (4) (811
SE2d 420) (2018).
Substantial delays in the criminal appellate process implicate due process
rights. See Chatman v. Mancill, 280 Ga. 253, 256 (2) (a) (626 SE2d 102) (2006). In
evaluating whether appellate delay violated a defendant’s due process rights, we
evaluate the case under the four factors set forth to evaluate claims of violations of
the right to a speedy trial in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d
101) (1972). Id. at 256 (2) (a). Those factors are: (1) the length of the delay; (2) the
reason for the delay; (3) whether or not the defendant asserted his right to an appeal;
and (4) whether or not the defendant was prejudiced because of the delay. Singleton
v. State, 326 Ga. App. 609, 613 (3) (a) (757 SE2d 211) (2014). And “we have
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repeatedly found that the failure to make a showing of prejudice in an appellate delay
can be fatal to the claim, even when the other three factors weigh in the appellant’s
favor.” (Citation and punctuation omitted.) Mattox v. State, __ Ga. __ (3) (840 SE2d
373) (2020).
When evaluating the fourth prong of the Barker test,
[t]he prejudice necessary to establish a due process violation based on
post-conviction direct appeal delay is prejudice to the ability of the
defendant to assert his arguments on appeal and, should it be established
that the appeal was prejudiced, whether the delay prejudiced the
defendant’s defenses in the event of retrial or resentencing. Appellate
delay is prejudicial when there is a reasonable probability that, but for
the delay, the result of the appeal would have been different.
Furthermore, where the enumerations raised on appeal are without merit;
there can therefore be no prejudice in delaying a meritless appeal.
(Citations and punctuation omitted.) Loadholt v. State, 286 Ga. 402, 406 (4) (687
SE2d 824) (2010).
Although we agree that the first three Barker factors weigh in favor of
Hardeman, he has not proven the necessary element of prejudice. Hardeman argues
that he was prejudiced by the post-trial delay because, by the time the trial court
conducted a motion for new trial hearing, his trial counsel had died and was therefore
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unavailable to answer questions about his ineffective assistance claim. However, on
these facts, we are constrained to follow our Supreme Court’s ruling in Mattox v.
State, __ Ga. __ (3) (840 SE2d 373) (2020). In Mattox, supra, our Supreme Court
held that a defendant’s appeal was not prejudiced by a lengthy post-trial delay
because, “pretermitting whether trial counsel could have offered any evidence in
support of [defendant’s ineffectiveness claim],” the defendant did not even make such
a claim in his original motion for new trial and instead waited until 13 years later, by
which time his trial counsel had died, before asserting an ineffective assistance claim.
Id. “As a result, there is not a reasonable probability that [defendant’s] claim of
ineffective assistance would be decided differently had the trial court more promptly
ruled” upon the motion for new trial. Id.
Here, Hardeman’s original motion for new trial, filed by the county’s contract
public defender in 2003, did not raise ineffective assistance of counsel. Rather,
Hardeman waited until 2019, after his trial counsel’s death, in order to file an
amended motion for new trial raising the claim. Accordingly, as in Mattox, Hardeman
has not shown that there was a reasonable probability that his motion for new trial
would have been decided differently if the trial court had considered it in a timely
manner. Further, as evidenced in Division (1) of this opinion, Hardeman has neither
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raised a meritorious claim of ineffective assistance on appeal nor shown how his trial
counsel’s testimony at the motion for new trial hearing would have resulted in a
different result on appeal. Because Hardeman has not shown that his appeal was
prejudiced by the excessive post-trial delay in this case, the trial court’s ruling was
not in error.
Judgment affirmed. Reese, P. J., and Markle, J., concur.
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