Carter v. The State - Murder Conviction Appeal

In th e Supr eme C ourt o f Georg ia Decided: February 1 7, 2026 S2 5A 1129. CARTER v. THE STATE. E L LINGTON, Justic e. Donal d Car ter appeal s h is con vic tions for m ali ce mu rder an d othe r crimes in co nnectio n with the shoo ting death o f Samuel Sanders. 1 Carter con tends tha t th e tri al cou rt e rre d by f aili ng to 1 The crimes occurred on or abou t March 28, 2022. On M ay 23, 2022, a Jackson County gr and jury returned an indictment char ging Carter with malice murder (Count 1); felony mur der (Count 2); aggravated ass ault of Sanders (Count 3); possession of a firea rm during the com mission of a felony (Count 4); aggravate d assault (Count 5); and posses sion of a firearm during the commission of a felo ny (Count 6). At the conclusion of a jury trial that began on May 15, 2023, the jury found Car ter guilty on all counts. The trial court sentenced Carter o n May 1 7, 2023, and amended the sentence on May 18, 2023, sentencing Carter t o life in prison wit h the possibility of parole for malice murder (Count 1). The cour t merged t he felony murder (Count 2) into the malice murder co nviction and merged o ne aggravated assault count (Count 3) into the felony murder convictio n (Count 2). The court imposed a five - ye ar prison term for one count of poss ession of a firearm d uring the commission of a felony (Count 4), to be served con secutively to Coun t 1; a 20 - year prison term for the other count of aggravated assaul t (Count 5), to be ser ved consecutively to Count 4; and merged the other cou nt of possession of a firearm duri ng the commission of a cri me (Count 6) in to Count 4. We note that the trial court erred a t sentencing as follow s. First, the NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Court ’s recons ideratio n, and edit orial rev isions by t he Report er of Decisi ons. The ver sion of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desig nated as th e “Final Co py,” will replace a ny prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 conduct an ade quate he aring on th e iss ue o f C arter ’s m ental competen ce t o stan d tri al aft er the Ge orgia D epartmen t of Behav ioral He alth an d D evel opmen tal D isabi lit ies (“the Departmen t”) fou nd him competen t t o stan d tri al and t hat his tr ial couns el was in effec tive f or f ail ing to fil e a sp ecial plea of m ental incom peten ce to s tand tri al. As exp lai ned m ore thor ou ghl y below, in the abs ence of a speci al pl ea of in com peten ce under OCGA § 17 -7- court erred by merging the felo ny murder count (C ount 2) into the malice murder count (Count 1), rather tha n recognizing that Cou nt 2 stood vacated by operation of law. See Hulett v. S tate, 296 Ga. 49, 53 (201 4) (“[W]hen a valid guilty verdict is returned on both m alice murder an d felony murder of the same victim, the defenda nt should be se ntenced for the mal ice murder, and th e alternative felony m urder count stands vacated by operatio n of law as simply surplusage.” (quotat ion marks omitted)). While this error in nomenclat ure does not affect Carter’s sentence and is oth erwise harmless, we note that Count 2 was vacated by ope ration of law. See Manner v. S tate, 302 Ga. 877, 890 - 891 (2017). Additionall y, the trial cour t purp orted to merge the aggravated as sault count (Count 3) into the felony murd er count (Count 2), but because the felony murder count should have been vac ated by operation of l aw, there was no felony murder cou nt into which th e underlying aggr avated assault cou ld merge, and the tria l court erred by failing to mer ge the aggravate d assault (Count 3) into the malice murder conviction (C ount 1). Se e Marshall v. State, 309 Ga. 698, 700 (2020) (quot ation marks and citati on omitted). But because this merger error m akes no practic al difference, we decl ine to correct the err or. See id. Carter timely filed a motion for new tr ial on May 18, 2023, which was amended twice through new counsel on September 26 and Novemb er 4, 2024. After an evidentiar y hearing, the trial court denie d the amended motion for new trial on Dece mber 6, 2024, and the case was dockete d in this Court to the August 2025 term a nd submitted for a d ecision on the b riefs.

3 130(b)(2), the tri al court was not requi red t o con du ct a heari ng on Carter ’s men tal compet enc e to sta nd tri al, and b ecause the re cord does n ot sh ow that any new evid en ce cam e to li ght that pres ented a basis f or challenging the De par tment’s findings, Ca r ter w as n ot prejudi ced by trial cou nsel ’s f ail ure to request one. For the reas on s explai ned b elow, we af firm. 1. Prior t o tri al, Ca rter ’s at torney fi led an affi davi t re ques ting a ment al ev alu ati on, s tating t hat Carter “ has difficult y foc using on and gr asping the det ails of his case long eno ugh” to help with his defen se, ope rate s in “tang ential reason in g,” pr ovi des irrel evan t inform ation in respon se t o qu est ion s, and h as a n on - sequentia l sense of tim e. I nstead of ho lding a he aring to determ ine whethe r a competen cy eval uati on shou ld be condu cted, th e cou rt fou nd th e affid avit s uffici en t and or dered the D epartm ent to con duct the mental comp etency evalu ation. The cou rt ex plai ned tha t “[d ]efen se couns el [sh owed] that the re [w as] r eason to ques tion [Cart er’s ] competen ce t o sta nd tri al.” Nei ther p arty obj ected to t his p rocedu re. A psyc hologis t with the De partme nt conduc ted an inte rview

4 and for ensi c eval uation of Cart er on Novemb er 8, 2 022, an d opin ed that Ca rter was compet ent to stan d trial. Ultima tely, the psych ologi st de termined th at Carter was “ps ychi atrical ly sta ble” and d isplayed no “evid ence of signif icant mental healt h sympto ms and/o r cogn iti ve dy sfun ction.” He was capabl e of un derstandin g the nature and objec t of the pro ceedi ngs ag ain s t him a nd of rendering assist ance to his couns el in prov idi ng a prop er d efen se. Sp ecifically, his speech w as a ppropri ate; h e w as respon sive to i nstr uct ion; he displa yed goo d contro l of his em otions a nd behav ior; and he did not refe rence any delusional b eliefs whe n discus sing his ca se. N either party ch allenged th e resu lts o f th e eval uati on or requested a hearing to do s o. T he evi dence pre sented at trial s howed that Cart er worked for his fr iend, Sanders, who se busine ss prov ided moving servi ces. In March 2022, S anders was hire d to mov e furnit ure fro m Philadelp hia to Georg ia, and Carter and Sanders ’s grandson ass isted w ith th e move. The g roup left Phil a delp hia in a par cel van with a U - Ha ul traile r attach ed. Sanders drove, Sander s’s gr andson was in the

5 passeng er s eat, a nd Carter sat in a f olding c hair behind S ande rs in the op en - spa ce area o f the van that was open to the cab. The group arriv ed at thei r destin ation and un loaded the car go, and Sanders paid C arter f or hi s work. On the wa y back to Philad elphia, the grou p stopped at a g as station, w here Cart er purchas ed al coholi c beverag es – “som e Mad Dog” wine an d a “fou r pack of beer” – which he beg an to cons ume. The m ore Cart er drank, the more ag itated he became. Carte r becam e incr easingly abrasi ve and began hara ssing and th reaten ing Sande rs’s grands on. A t one point while trave ling on I - 85, Cart er beg an to uri nate in the back of the va n. San ders stopp ed th e van an d to ld Cart er to get out and urinat e on the shou lder of the road. Afterw ard, San ders and Carter g ot back i nto the van, and Sa nders c ontinue d dr iving. At tha t point, Cart er said t o Sanders, “S am, wh at am I going to do with you?” Carte r pull ed out a gun, cock ed it, and s tart ed shoo ting. Sande rs pul led o ver the van and tried to calm Carter d own, and Sand ers gestured for his gra ndson to f lee the vehicle. As the grands on fled, h e hea rd several gu nsh ots. He look ed back an d saw

6 Carter g et out of the back o f the van and flee into t he woods. The grands on tri ed calli ng Sanders bu t got n o response and then call ed 911. Law enfor cemen t arrived on scene an d loc ated Sande rs in a pile of debr is on the right sid e of the van with t wo gunshot wo unds in his back. Sanders was st ill breathing b ut unab le to talk. L aw enfor ceme nt noted a strong smell of alcoh ol com in g from th e van. The next morning, law enfor cement fou nd C art er as leep in a shed on a nea rby farm, l ying on t op of a gu n. When ques tioned by law en for cement, Carter stat ed th at h e d rank a six - pack of beer and a pint of wine but did not re member any of the eve nts from the van or his arrest and qu estion ed wh ether he had be en drugged. He stated that he di d not rem ember shootin g Sand ers and w ould neve r have don e so be cause Sand ers wa s a good f rien d, an d he does n ot drink t o the point of bla cking out. Carter testified in hi s own defen se at tri al to th e fo llow ing. He drink s every d ay, but do es not do dru gs, and after c omple ting his work moving items, Ca rter bought a four - pack of C olt 45 malt li quor and a pint of Mad D og 20/20 w ine at a gas sta ti on. Sander s’s

7 grands on ca me out of the gas stat ion, approach ed Carte r with a plasti c spray bott le filled with a liquid, and asked C arter to sm ell it, and wh en Carter smelled it, the g ran dson sp rayed th e liquid, which smelle d like co conut and a lmond, i n Carter’ s fac e. The gro up left the gas st ation, and San ders an d San ders ’s grandson co mpleted anoth er job. Cart er fell asleep and di d not remem ber anyth ing th at occu rred afte r falling a sleep until the nex t morni ng ei ther becaus e he “had a bad be er or … [t] hat stu ff he spr ayed on m e was w orking.” At times, Cart er’s trial tes timony was incons istent wit h his prior s tatem ents to poli ce and w ith the v ideo of l aw en forcement’ s appreh ensi on of h im, and wh en con fronted with th e trans cript of that vi deo, C arter all eged that t he tr anscript h ad b een alt ered. 2. Carter con ten ds that th e trial cour t erred by f ailing to conduct an ade quate heari ng on th e issu e o f Cart er’s men tal competen ce to stan d trial pur suant to OCGA § § 17 -7- 129(a) (2011), 17 -7- 130 (b)(1) (d) (2017), an d 17 -7- 130 (d) (2 017). 2 Witho ut t he filing 2 We also note that Carter mak es no constitutional claim s regarding the necessity for a heari ng.

8 of a speci al pl ea of m ental in comp etency und er OC GA § 17 -7- 130(b)(2), the appl icable ve rsion s of th ose sta tute s 3 did not r equire the t rial c ourt to hold a h earing f oll owin g the com pe tency evaluation it ord ered, and t hus, the tri al cou rt di d not err. Under OCGA § 17 -7- 129(a) (2011), [w] he n informat ion become s known to the co urt suffic ient to rais e a bona f ide d oubt r egarding the accu sed ’ s men tal competen cy to stan d tri al, th e cou rt has a duty, sua spont e, to inquire into the accus ed ’ s men tal c ompetenc y to stan d tri al. T he cou rt may ord er [th e Departme nt ] to 3 We note tha t the parties ci ted different version s of the per tinent Code provisions in their briefs, as some of the provisions were ame nded in 2025. But the Act enacting the changes to OC GA §§ 17 -7- 12 9 and 17 -7- 130 included a provision stating, “ This Act shal l become effective o n July 1, 20 25, and shall apply to any motion s made or he arings or tria ls commence d on or after such date.” Ga. L. 2025 (vol. 1) at 732, § 4. A s this Court has exp lained, w hen our legisla ture enacts or amends (or repeals) a statute, the legislature has the power to decid e when the statute will become effective. When the legislature ch ooses an effective date, that choice necessarily in forms what the la w is at the tim e of an a ppeal. … If, for instance, the legislature makes clear that a statute applies only to proceedings co mmence d after the law’s effective date, the legislat ure has tol d us that “the law at the time of ap peal” is that the new la w applies only after its effective date, and so the old law applies befo re that date. Profet v. State, 32 2 Ga. 731, 740 - 41 (citations an d quotation marks o mitted). In this case, the relevant affid avit was filed and the eva luation was conducted in 2022, and the tri al took place in 2023. Accordingly, t he version s of these provisions that w er e enacted i n 2011 and later amended in 2017 are the applicable version s of the statutes at the tim e of all relevant procee dings in the underlying case inst ead of the 202 5 versions.

9 conduct an ev alu ation of th e accus ed ’ s competen cy. If the court d etermines that i t is necessar y to hav e a trial on the issu e of comp etency, the cou rt shal l follow th e proc edu res set forth in Cod e Section 17 -7- 130. OCGA § 17 -7- 129(a) (20 11). Under OCGA § 17 -7- 13 0(b)(1) (2 01 7), in pert inent par t, [i] f an accu sed fi les a motion requesti ng a com pe tency evalu ation, the court m ay ord er the [D ]epartm ent to cond uct an evaluat ion by a phys ician o r license d psych ologi st to determ ine th e accused ’s m ental competen cy to s tand trial and, if su ch physici an or licen sed psy chol ogist determi nes the ac cused to be mental ly i ncom petent to sta nd trial, to mak e recomm en d ations as to res tori ng the accu se d to competen cy. OCGA § 17 -7 - 130(b)(1) (2017). Although no t referenc ed in Cart er’s first enum erati on o f error, the sub sequen t p rovisi on, OCG A § 17 - 7- 130(b)(2) (2017), is esse ntial to our analys is of this e numer ation. T hat prov isi on prov ides, in per tinent pa rt, “ If the accu sed files a spec ial plea a lleging that the accuse d is menta lly incomp etent to stand tri al, i t sh all be the d uty of th e court to have a ben ch t rial, unl ess th e state or th e accu sed demands a sp eci al ju ry trial, to determi ne the accu sed ’ s compet ency to s tan d t rial. ” OCGA § 17 -7- 130(b)(2) (2017). And fina lly, the full text of OCGA § 17 -7 - 13 0(d)(1)

10 (201 7) re ads: [i] f the [D] epartmen t’s phys ician or lice nsed psyc hologist determi nes at an y tim e that th e accused is me ntal ly competen t to stan d trial, the [D] epartmen t s hall notify the cou rt, and the ac cused s hall be di scharg ed into th e custody of a sher iff of the ju risdi cti on of the court unl ess the cha rges which led to th e evalu ation or the civil commitme nt have been dism isse d, in which ca se, the accus ed shal l be di scharge d from the depa rtmen t. In the event a sh eriff does n ot appear a nd tak e cust ody of the accus ed with in 20 d ays aft er noti ce to the ap pro priat e sher iff of the jurisdict ion of the court, the presid ing judge of th e cou rt, and the pros ecuti ng attorn ey f or the court, the d epartm ent sh all i tself retu rn the a ccused t o one of the cou rt’s deten tion f acili ties, an d the cos t of retu rning the ac cused sha ll be pa id by the count y in which t he co urt is loc ated. All no tifica tions under this pa ragra ph shall be sent by certifi ed mai l or statu tory ov ernight deli very, return receipt reques ted. As an al ternative t o returni ng the ac cused to th e sheri ff o f th e ju risdi ction of the c ourt, the dep artmen t may hol d the ac cus ed at th e depa rtm ent’s sec ure facilit y inste ad of at the co urt’ s detentio n facilitie s when ever a d epartm ent physi cian or l icens ed psych ologi st pr ovides wri tten no tice to the c ourt t hat suc h dete ntion in the cour t’s fac ilities wo uld be detrime ntal to the we ll - being of the ac cused. Su ch al ternati ve det ention shall c ontinue only until the da te of the accuse d’s trial. Regardl ess o f where the accused i s hel d, the court shall hold a b ench trial to determi ne th e accused’s m ental competen cy to st and t rial w ith in 45 d ays of re ceivi ng the [D]epar tment’ s evaluatio n or, if demand ed, shall cond uct a spec ial jur y trial within six mo nths o f receiving the [D]epar tment’ s evaluat ion. OCGA § 17 -7- 130 (d)(1) (2017).

11 In ord er to d eter min e whet her th e trial cour t erred by f ailing to hav e a h earin g followi ng th e psy cholog ist’s mental c ompetency evalua tion a nd th e psy cholog ist ’s fin ding Carte r to be competent, we start by analyzi ng the text of the r elevan t sta tutes an d presum e: that the Gen eral Assembly meant w hat it sa id and said what it meant. To th at en d, we m ust afford the s tatutory text it s plain and ordinar y meaning, we must v iew the statutor y text in the cont ext in whi ch i t appears, and we must rea d the statut ory text in its m ost natu ral and reason able w ay, as an ordi nary sp eaker of th e Engl ish languag e would. White v. State, 30 5 Ga. 111, 114 - 15 (201 9). “ Fo r contex t, we ma y look to oth er p rovi sion s of the s ame s tat ute, the stru cture and hi story o f the who le statute, a nd the other law — con stitu tion al, statut ory, an d common law ali ke — that form s the l egal backgrou nd of the sta tutory pro vision in que stio n. ” Clark v. State, 32 1 Ga. 35, 40 (202 5). A nd we genera lly “av oid[] inter pret ing statute s in a manne r that renders any por tion o f them s urpl usage or meani ngless.” Wetze l v. State, 29 8 Ga. 20, 28 (2015). S ee also Sc ott v. State, 295 Ga. 39, 40 (2014) (“[A] s t atu te is to b e con stru ed to g ive sensi bl e and intel li gent effec t to all i ts provisi ons an d to ref rain from an y in terpreta tion

12 whi ch rend ers an y part of th e statu te mean ingless. ”). First, a s to OCGA § 17 -7- 129(a), the statut e did not mand at e such a hearing. The statu t e contem plate d t hat “ if the cour t determi nes that it i s nece ssary to have a trial on the issu e of competen cy, the cou rt s hall follow the p rocedure s set forth in” OCGA § 17 -7- 130, but the pr ovis ion i tself d id not require a h earing or trial on the i ssue. See OCG A § 17 -7- 129(a) (emph asis added). The only requir ement the statu te impos e d upon t he trial court wa s to, sua sponte, “in quire i nto the accus ed’s mental comp eten cy to stand tr ial” after l earni ng an y informati on that g ives rise t o a dou bt about the accus ed’s c ompe tency. He re, u pon t he fil in g of th e affi davit by Carter ’s initi al tri al counsel indicatin g concern s abou t C arter’s competen cy, the court or dered the Depar tment to co nduct a n evalu ation, as spec ifically co ntemplat ed in the statut e. Ther efore, the tr ial court comp lied with it s only obliga tion imposed by this pro vision. Secon d, th e lan guage of OCG A § 17 - 7- 130(b)(1) (2017) did not req uire the ho lding of a hearing t hat Cart er seek s. That sta tute only

13 pro vided that “[i]f a n accused f ile[d] a motion req uesting a competen cy eval uation, the court ma y order the [D]epa rtmen t to cond uct an eva luation,” a nd mentioned nothing about a hearing, requir ed or other wise, follow ing the e valuation. See OCGA § 17 -7- 130(b)(1) (2017) (emph asis added). But the question of wh ethe r Cart er shoul d have been affo rded a hear ing under the th ird provis ion Carte r cites, OCGA § 17 -7- 130(d)(1) (2017), does not h ave as strai ghtf orward a n ans wer. Un de r the sp ecifi c p ortio n of OCGA § 17 - 7- 130(d)(1) that Cart er highlights, if the D epartm ent’s “ph ysician o r licensed psychol ogi st determin es at any time that t he ac cused i s m ental ly competen t to st and trial … the cou rt shall hol d a bench t rial to d etermine th e accuse d’s mental competen cy to stand trial withi n 45 d ays of rec eiving the [D]epar tment’ s evalua tion. ” OCGA § 1 7 -7- 130(d)(1). Carter con tend s that the “s hall ” language o f that p ortion of t he s tat ute requ ired th e court t o condu ct a hearing. The St ate co ntends t hat t his pro vision does n ot appl y to someon e l ike C arter wh o was never de emed incom peten t, wh ether by th e cou rt or by the De partm ent. U p o n

14 review of the st atu tory tex t as a whol e, a nd in the cont ext of t he surr ounding pr ovisions o f the statute, we do not agree w ith th e State’ s re asoni ng an d i nter pret ati on of OCGA § 17 -7- 130(d). W e neverth el ess c onclude that Carter is not e ntitle d to a tria l on his competen cy unde r OCGA § 17 - 7- 130(d). Although t he las t sent ence of OC GA § 17 -7 - 13 0(d)(1) pr ovides that th e cour t “shall hold a ben ch trial to d etermi ne the accu sed’ s mental comp etency to stan d trial wi thin 45 days of receiv ing the departm ent’s eval uation,” that provision do es no t exist in is olatio n. Rather, i t must b e interp reted in t he “con text i n which it appea rs.” See Clark, 321 G a. at 4 0 (in stru cti ng th at, to vi ew th e tex t in th e contex t in whi ch it appe ars, w e may look t o “other provis ions o f the same st atut e” an d “the st ructure … of the wh ole s tatute ”). There is only one p rovisi on of OCG A § 17 -7- 130 tha t pla ces a du ty on t he court t o hold a tri al to d eterm in e an a ccused’s c ompetency: O CGA § 17 -7- 13 0(b)(2), follow ing the filing o f a spec ial plea o f incom peten cy. T herefore, the langua ge regardi ng a bench trial in OCGA § 17 -7- 130 (d)(1) i s bes t read as se tting a d eadline f or ho lding

15 a bench trial th at was prop erly requ ested i n a speci al pl ea of incom peten cy pu rsuant to OC GA § 17 -7- 130(b)(2). A con tra ry under stand ing — i.e., an inte rpretati on that a cou rt would be requir ed to hold a comp etency tri al under OCGA § 17 -7- 130(d)(1) any tim e the D epar tment f inds an accus ed com petent — wo uld rende r the re quirement o f filing a speci al ple a and the concom itan t duty of t he tri al court to h old a ben ch trial on the accu sed’s competen cy under OCGA § 17 -7- 130(b)(2) sur plusage. See W etzel, 298 Ga. at 28. Moreov er, OCG A § 17 - 7- 130(b)(2), w hen rea d in isol ation, doe s not set o ut any timing req uirement s for the ho lding of a trial. I n contras t, r eadin g su bsections O CGA §§ 17 -7- 130(b)(2) and 17 -7- 130(d) (1) t oget her and givi ng eff ect t o bo th, s ee Scott, 295 G a. a t 40, OCGA § 17 -7- 13 0(b) (2) c reat es the du ty for th e trial court to hold a trial on competen cy upon the filing of a speci al pl ea of in competency, and OCGA § 1 7 -7- 130 (d)(1) prov ides f or w hen th e tri al mu st tak e place – 45 days aft er re ceivi ng t he Departmen t’s evaluation for a bench tri al or six m onths after r ece ivi ng the ev aluati on for a speci al

16 jury t rial, if demand ed. 4 Acco rdingly, becaus e Carter d id not file a special ple a of in competency un der OC GA § 17 -7- 1 30(b) (2), the cou rt was not requ ired to h old a b ench trial as to hi s co mpeten ce und er OCGA § 17 -7- 130 (d)(1). Because neith er OCGA §§ 17 -7- 129(a) nor 17 -7- 130 (b)(1) requir ed the cou rt to hol d a competen cy hearin g followi ng th e Depart ment ’s fin din g of Carter ’s com peten ce, be caus e OCGA § 17 -7- 130(d) (1) is bes t understood as setting a deadline for a bench trial 4 Another subsecti on, found later in the statute in OCGA § 17 -7-13 0(f), also supports this co nclusion: If, at any time, the department’s p hysician or licensed psychologist determines that the accused is ment ally incompet ent to stan d trial but later determine s that the accuse d is mentally com petent to stand trial, the co urt shall be so notified and shall order the accused detained or discharged in accor dance with paragra ph (1) of subsection (d) of this Code section. Any accused determi ned by a department physi cian or licensed ps ychologist to be mentally competent to st and trial and return ed to the court as provi ded in subsection (d) of thi s Code section shall again be entitled to file a special plea as provi ded for in this C ode section. OCGA § 17 -7- 130(f) (emphasis added). By including language that the accused is to be retu rned t o the court or discharged as provided in OCG A § 17 -7- 130(d)(1), and langu age that if the accused is retur ned to the court, the accused is “again” entitled to file a special plea of incompetency, this p rovision supports the conclusion that the last sent ence of OCGA § 17 -7- 130(d) (1) providing for a bench trial is co nditioned o n the accuse d filing a speci al plea of incompetency under OCGA § 17-7- 130(b)(2).

17 that is cond itioned upo n the filing of a special p lea of inc ompete ncy, and be cause C arter did not fil e suc h a plea, Carter’ s cl aim th at the tria l court erre d by failing t o hold a hear ing as to his me ntal competen ce fails. 5 3. Carter also con te nds th at h is t rial counsel wa s ineff ective for failing to fil e a special pl ea o f men tal incompet ence to stan d tri al. He cont ends tha t his couns el was unawa re tha t if counse l had file d such a special plea, he would ha ve had a right to a bench tria l or jury trial as to his c ompetency und er OC GA § 17 - 7- 130 (b)(2) (20 17) an d that th e fai lure to fil e one waiv ed th at rig ht. C ar ter argue s that his couns el’s relia nce on the Dep artme nt’s evalu ation was unreas onable where coun sel had on going dou bts a s to Carter’s compet ency. H e cont ends tha t, had co unsel file d the ple a and the trial co urt held t he 5 We not e that Carte r relies on a numb er of Cour t of Appeal s cases that stand for the proposition that, “[e] ven where no special pl ea is filed, … where a question abo ut a d efendant’s compet ence is raise d, the tria l court must hold an ‘adequate heari ng’ on the issu e.” See Crawford v. State, 355 Ga. App. 40 1, 403 - 04 (2 020). See also Beach v. State, 351 Ga. A pp. 237, 242 (2019). To t he extent that these cases, or any others, interpret OCGA § 17 -7- 130(d)(1) to require the trial court to hold a hear ing, irrespective of whether a special plea of incompetence was filed, those cases are overrule d. See, e.g., Cosby v. State, 365 Ga. App. 574, 5 77 (2022).

18 requir ed hearing, ther e is a reas onabl e pro babil ity t hat the trial court w ould hav e de emed Carte r incompe tent to p roc eed t o his jury tria l. P rete rmitti ng w heth er thi s clai m was adequat ely pr eserved for appeal, Ca rter’s c laim of ineff ective as sistan ce of co unsel fails. In orde r to su ccee d on h is clai m of ineffectiv e assi stance, Ca rt er must p rove both th at his trial couns el’s p erfo rman ce was de ficien t and th at ther e is a reas onable pr obabil ity t hat th e trial res ult w ould have b een di ffe rent i f not for the d eficien t perform ance. St ri ck la nd v. Washington, 466 U. S. 668, 68 7 (198 4). To satisf y the defici ency prong, Carter must sho w that counsel p erforme d his duties “ in a n objecti vely unre asonable w ay, consi dering all the cir cumstances and in light o f pre vailing pr ofe ssional n orms.” Moulder v. State, 317 Ga. 43, 47 (202 3) (qu otation m arks omi tted). To sati sfy the prej udi ce prong, Carter “ m ust sh ow that t he re is a reason able pro babi lity that, but for counsel ’ s unprofess ional error s, the result of the proce eding woul d have b een diffe rent. ” Pa lmer v. State, 3 10 Ga. 668, 678 (202 1) (quotati on ma rks omitted). If Carter “ fails t o show eith er defi cien cy or preju dic e, th is C ourt ne ed not exam in e the oth er prong o f the

19 Stric kland test.” Id. (qu ota tion m arks omi tted). The law “reco gnizes a stron g pres um ption that couns el perform ed r eason ably, and the defen dant bears t he bur den of ov ercoming this presu mption.” Evans v. State, 315 Ga. 60 7, 611 (2 023) (quotati on ma rks omitt ed). “In review ing a ruli ng on a cl aim of i n effec tive as sistance of counsel, we defer t o the trial court’s fin din gs of f act unl ess t hey are clea rly errone ous, but w e appl y th e law to t he facts de novo.” Payne v. State, 314 Ga. 322, 329 (20 22) (quot ation mark s omi tted). Under OCGA § 17 -7- 130(b) (2), if a n accus ed files a speci al plea of men tal i ncom peten ce, the trial court must hold a bench trial, o r a special jury trial if demanded, to dete rmine the ac cused ’s competen cy to stan d trial. OCG A § 17 -7- 13 0(b)(2). Here, Cart er’ s tria l counsel c hose no t to file the spec ial plea. Assuming, wit hout dec iding, that Carter’s t rial counse l was defic ient in this re spect, Carter h as fail ed to establ ish that he w as pr ejudiced by th is fai lure. Carter cannot sh ow that th ere is a re ason able p robabil ity that, bu t for his trial counsel ’s fail ure to fi le a special plea of men tal incom peten ce, th e outcom e of his trial would hav e been di ffer ent

20 becaus e the re was eviden ce that Carte r was c ompeten t and h is attorn eys c oncluded that a sp ecia l plea of incomp etency w ould not have b een su cce s s ful. See Palmer, 310 Ga. at 678. At the ev iden tiary heari ng on the moti on for new tr ial, C arter’s tria l counsel, Danie lle Kuntz, testified that she had concern s a bout Carte r’s me ntal comp etence, including t hat “ he had a n inabilit y to keep th oughts on a train that actual ly m ade sense.” Howev er, K untz also testi fied that, a lthough Carter s ometimes seemed confus ed about c riminal procedur e, Ca rter’s att orneys were able t o prepare him to testify a t trial, Carte r was able t o compr ehend wh at his attorn eys w ere a skin g him, and h e und ersto od the ch arg es and th e natu re of the pro cee dings. Fur ther, she testif ied that Carter was able to assist i n prep aring a de fen se and mainta ined his st ory that the cocon ut scent ed li quid t hat wa s spray ed in his face caus ed hi m to “bl ack ou t” and be unabl e to remem ber what h appen ed. Nevert heless, Kuntz f elt tha t Carter was incomp etent, so she asked her su perio r whether they needed to seek a sec ond opin ion. Kun tz’s su pervi sor, Donn a Sea graves, testifie d tha t she

21 ultimat ely de termined t hat a second exper t opinion thr ough an indep endent eval uation would not result in a different o utcome than the one conduc ted by th e Depar tment. “ Base d on the leg al standard, ” o f whether Ca rter could as sist in his defense, Seagrav es believ ed Carter was compet ent. Sp ecif ically, she te stified that he mainta ined his inv oluntar y intox ication de fense ab out the g randson spra ying some thing in his fac e, caus ing him to “bla ck out,” thro ughout the ent ire dur ation of trial pr eparation – which he later mainta ined d uring his tria l testimony – a nd there were no o ther viabl e defen ses. When asked w hether th e atto rney s consi dered reques ting a ju ry t rial regar ding Car ter’s compet ence, S eagraves said, “Th e eval uation in dicate d th at he was c ompetent. We di dn ’ t have a ny informat ion othe r than what was containe d in the evalu ation or see n by the ev aluat or. We didn ’ t hav e an y reas on to belie ve tha t he d idn ’ t pres ent t o the ev aluator t he same way he presen ts to us.” So Kun tz and Seagrav es decided not to reques t a jury t rial on the i ssue of C arte r’s mental comp eten cy to stan d tri al. Here, i t is true th at, h ad coun sel fil ed a spe cial plea of mental

22 incom peten ce, th e trial cour t wo uld have been r equired t o hold a trial, eithe r by bench or by j ury i f dem anded, und er OC GA § 17 - 7- 130(b)(2), whic h is the very relie f that Carte r sought in his mot ion for new trial an d now on app eal. But at the motion fo r new trial hearin g, Ca rter di d not p resent an y evidenc e or witn ess t o testi fy as to Cart er’s in compet ence or to su ggest what evi dence of hi s incomp etenc e his tria l counse l could have shown had the y filed a special plea. S ee Lupoe v. State, 30 0 Ga. 233, 24 5 (2 016) (holding that trial counsel’s fai lure to m ove for a con tinuanc e so defendan t could f ile a m otio n to compel t he St ate to produ ce vi deo stat ements did no t prejudice the defenda nt because t he defenda nt “did not presen t any ev id ence as to what addition al informat ion a mo tion to compel the video s would hav e re vealed or how th at informati on would ha ve improve d his positio n”). See a lso Pa lmer, 310 G a. at 678 (hold ing that trial c ounsel’s failure to file a notice of alib i testimony did n ot preju dice the def endan t be cause, at th e moti on for n ew tri al hearin g, h e nev er pre sent ed th e tes timony of the al leged ali bi witn ess or a leg ally accept able substi tute). Furth er, Ca rter ’s

23 attorn eys tes tified th at he unders tood th e charges a nd nature of the proc eedings a nd that he was abl e to main tain t he s ame th eory of defen se th rough out trial p reparati on a nd at trial. And his c ounse l’s super ior te stified that the re was no additio nal ev idence o utside of what w as pres ented to th e Depar tment’s psy cholo gist to sug gest that he w as not compet ent to stand tri al to be p resen ted at a jury trial as to hi s competen ce. B ecau se Carter ha s not shown that there is a reason able prob abil ity that a tri al on the issue of his mental compe tence wo uld result in a find ing of inco mpetence, he has not shown that ther e is a reas onabl e probabi lity tha t, h ad cou nsel f iled a speci al pl ea, the u ltimate out come at hi s jury tri al w ould have b een differen t. See Palm er, 310 Ga. at 678. Accordingly, Carter has fail ed to s how ineffec tive ass istance o f his tria l counse l for fa iling to f ile the sp ecial plea of mental i ncompeten ce. Judgment a ffir med. All th e Just ice s concu r.