Jackson v. The State - Felony Murder Conviction Appeal

In th e Supr eme C ourt o f Georg ia Decided: Ma rch 3, 2026 S25A149 8. JACKSON v. THE STATE. E L LINGTON, Justic e. A DeKa lb County jur y found Quinta vius Ja ckson guilty of felo ny murder and othe r crime s in connec tion with t he sho oting deat h of Sula iman Jallo h. 1 Jack so n conten ds that t he evi denc e was 1 The crimes occurre d on October 15, 2019. A DeKalb Coun ty grand jur y returned an indictment on J anuary 23, 2020, c harging Jackson an d his co - defendant, Cordari us Dorsey, with malice m urder (Count 1), felony mur der predicated on arme d robbery and aggr avated assau lt, respectively (Counts 2 and 3), ar med robbe ry (Count 5), a ggravated assaul t (Count 6), and possessi on of a firearm during the commis sion of a felony (Count 8). (Dorsey was separately indicted both for felony murder pred icated o n possession of a firearm by a c onvicted felon an d for th e underlyin g firearm offense (Count s 4 and 7). During a trial that beg an on December 5, 2022, the jury found Jac kson not guilty of malice murder but guilty o n the remaining co unts. (The jury found Dorsey guilty on al l counts.) The jud ge imposed co ncurrent life senten ces without the possibi lity of parole on both of Jackson’s f elony murder co nvictions (Counts 2 and 3) and a consecutive five- year prison te rm for possessio n of a firearm during the commission of a felony (Count 8). The court m erged the armed robbery and aggravated assaul t counts into their respective felony murder counts. As explained mor e fully in Division 3 (b), infra, we must vacate Jackson’s sentence and remand the case for r esentencing becaus e the trial court erred in sentencing Jac kson on both felony murder counts. Jackson file d a timely motio n for new trial on Dec ember 16, 2022, and he amended it on September 13, 2024. Following a hearing held on March 3, 2025, the trial court 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 m e Cou rt Rule 27, the Court ’s recons ideratio n, and editor ial revisio ns by th e Reporter of D ecisions. Th e versio n of the opinion publis hed in the Advance Sheets fo r the Geor gia Reports, designat ed as the “F inal Copy,” will r eplace any prior version on the Court’s websi te and docket. A bound volu me of t he Georgi a Reports will contai n the final a nd officia l text of t he opinio n.

2 cons titutio nally insuffic ient, t hat the jury’ s verdict is co ntrary to the princ iples of justi ce and equit y and is deci dedly and strong ly agai nst the weight o f the ev idence, that th e tri al court m ade evi denti ary an d sent encing erro rs, and that his trial co unsel was c onstitutio nally ineff ective. As expl ain ed more ful ly bel ow, Jackson has not carri ed his burden of s how in g reversi bl e erro r. Howev er, as expl ain ed in Div isi on 3 (b), we vac ate Ja ckson ’s senten ce in part and rem and th e case t o the trial cou rt to corr ect a sen tencin g err or. 1. Jackson con te nds th at th e evi dence was constitut ionally ins uffici ent to prov e beyon d a rea sonabl e doub t th at he was a par ty to the crim es he c laims were committed so lely by his co - defendan t, Cordai rus Dors ey. He al so arg ues t hat th e jury ’s ver dict i s cont rar y to the we ight of the evide nce as well as the princ iples of jus tice and equity. He in sis ts that h e was merely presen t w hen D orsey assaul ted, ro bbed, and killed Jalloh. For the foll owi ng reason s, b ot h denied Jackson’s mo tion for new trial on March 11, 2025. Jac kson filed a timely notice of appeal o n March 2 8, 2025, and the c ase was dock eted in this Court to the August 2025 term and submitted for a decision on th e briefs.

3 claims fail. (a) Jackson was charged ind ividually a nd as a part y to the crime s of murd er, a rmed ro bbery, aggr ava ted ass aul t, an d posses sion of a firearm during th e comm issi on of a f elony. A s a matt er of Georgi a sta tuto ry l aw, “[e ]very pers on concern ed i n th e commi ssion of a c rime i s a party th ereto and may be char ged w ith an d conv icted o f comm issi on of the crim e.” O CGA § 16 -2- 20(a). Con vict ion as a p art y to a crime requ ires proof of a comm on crimina l inte nt, which a trie r of fact ma y in fer f rom “p res ence, comp ani onsh ip, and c onduct be fore, duri ng an d after th e of fen se.” McGr uder v. State, 30 3 G a. 58 8, 5 91 (201 8) (citati on and punct uation omit ted). See also Felts v. Sta te, 311 G a. 547, 552 (2 02 1). And “all the par tici pan ts in a plan t o rob ar e crimi nall y resp onsi ble f or th e act o f ea ch c ommi tted i n th e executi on of t he pl an and w hich may be s aid to b e a proba ble con sequ ence of the u nlaw fu l desi gn,” William s v. State, 304 G a. 65 8, 662 (201 8) (ci tati on and p unc tuati on omitt ed), a princ iple we have specif ically he ld applie s to murders com mitted du ring the com mis sion of “a crim e that f orese eably [leads ] to mu rder ” — such as arm ed robbery — perp etr ated by a gr oup that sh ares a com mon crimina l intent. Fe lts, 311 Ga. at 552. See a lso Moor e v. State, 311 G a. 50 6, 509 (20 21). Butler v. State, 313 Ga. 675, 67 9 (2022) (clean ed u p). When we evalu ate a “ due p rocess chal leng e to th e su fficien cy of the ev iden ce, we vi ew the evid ence pres ented at trial in the li ght most f avo rabl e

4 to the ve rdic ts an d ask w heth er any rational tri er of fact c ould have found the d efend ant g uil ty beyon d a r eason abl e dou bt of th e c rimes of whic h he was convict ed.” She llman v. Sta te, 318 G a. 71, 74 (20 24) (quotati on m arks omitt ed). And “[w]e d ef er to t he j ury’s r esol uti on of any co nflicts in the evidence, the cred ibility of witne sses, a nd the drawin g o f reas onabl e in fer ences from the facts.” H ooks v. State, 31 8 Ga. 850, 852 (2 024). See al so Ridley v. State, 31 5 Ga. 452, 4 55 (20 23) (“In [asses sing the c onstitut ional suffic iency o f the evid ence], we do not ev alu ate wi tness cred ibil ity, res olve incon si stenci es i n th e eviden ce, or as ses s the weig ht of th e ev iden ce; these task s a re lef t to the sol e di scre t ion of t he jury.”). So view ed, t he evid ence admi tted at trial shows the follo wing. On O ctobe r 15, 2019, Ja ckson and Dors ey m et a t a gas s tati on i n DeKal b Coun ty and w ere th ere t og ether half a n hour. After Jalloh drove h is ca r in to the s tation ’s p arki ng lot and stoppe d near the d oor to the station ’s conveni ence s tore, Dors ey robbed a nd s hot Jalloh whi le Jacks on, as the fa cts re cou nted b elow dem ons trate, helped Dorsey. The incide nt was rec orde d from vari ous an gles on the gas

5 station ’s su rv eillan ce vid eo cam eras. The s urvei llan ce videos sh ow Ja ckson and Dors ey i ntera cting with each other f or a bout 30 mi nu tes prior to the shooting. A w itness also recoun ted s eei ng Dorsey at th e gas stati on “all day” on th e day of t he shooting. The vi deo recording s show tha t, pri or to the shoo ting, the two men walke d around t oget her in the p arking lo t of the gas s tati on. Dorsey w ore all bl ack cl othi ng, orang e Nik e shoes, and a burgund y Polo - branded h at. Dorsey and Jac kson spoke with each oth er, g estured to each oth er, sh ook han ds, and Ja ckson tried on Dors ey’s burg un dy hat. When Jack son entered the conv enien ce store, th e surveill ance c amera reco rded cl ear, col or imag es of h is face and c lothing. A t abou t 10: 15 p. m., J alloh drov e hi s car in to th e gas stati on par king lot. Dor sey, who was st anding outs ide alon e at the time, tapped on the glass w indow to get Ja ckson, who was insid e, to join him. The video recor ding shows that Dors ey pul led a han dgun from his clo thing as he walked t o Jalloh’s car. As Jalloh o pened his car door, J acks on we nt to th e rear of the ca r and g lanced aro und t he

6 par king lot, as if lo oking for someone. Do rsey, po inting his gun, st ood beside Jal loh ’s o pen c ar d oor. Upon seei ng D orsey, Jal loh tri ed to close th e car door, but D orsey pull ed it op en. A s Dors ey st rug gled with Ja lloh, Jackson ran to Dorsey’ s side. Jackson took a blu e bag from Jall oh, a nd Dorsey sh ot Jal loh in the ches t. Bo th Ja ckson and Dorsey l eft the ga s sta tion on foot, with Jackson spri nt ing away an d Dorsey s low ly w alki ng aw ay in a diffe rent di rection, a s Ja lloh fe ll from h is c ar on to th e pavemen t. Jal loh die d from the gunsho t wound to his chest. Actin g on i nfor mation gath ered from eyew itn esses to th e shoo ting as well as ano nymous tips, law en for cement offi cial s determi ned that a n individ ual kno wn as “Po lo” or “J uicy B oy” w as involve d in the shoot ing. One of t he in vesti gators, Detecti ve Brown, was f amiliar with “ Juicy B oy,” and knew him as Dorsey. He testi fi ed that Dors ey was also refer red to a s Polo or J. B. Detecti ve B rown ident ified D ors ey i n cou rt as the pers on h e kn ew as Jui cy Boy. He also wat ched the surv eill ance vi deo re cordi ng as it was play ed fo r the jur y and identif ied Dor sey as the per son in the b urgundy Polo

7 hat a nd dark clothing. The St ate al so i ntrodu ced i n e viden ce imag es and v ideo record ing s from a Facebo ok ac coun t for a pers on u sin g the nam e “Polo R oll ack.” T he ac count d ispl ayed s everal imag es of Dorsey. I n a video r ecor din g poste d to the ac count on Octobe r 14, 2 019, the d ay befor e the shoo tin g, Dors ey can be s een w eari ng o range shoes li ke those w orn by th e sh ooter. Dorsey ’s s ocial medi a ac coun ts cont ain ed inform ation that led th e poli ce t o Jacks on’s Inst agram accou nt. Using da ta from Jack son’ s so cial medi a, th e poli ce w ere a ble to obtain Jack son’s emai l add ress an d drive r ’ s license informa tion. The police le arned th at Jacks on got a dri ver ’ s l icens e tw o days a fter the shoo ting. The p hoto graph o f Jack son ’s driv er ’ s license sho wed t he same two - ton ed, “ twists ” hairs tyle worn by the sh ooter ’s acc ompl ice in the ga s stat ion surveilla nce vid eo. Imag es from Jacks on’s s ocial media pag e and Jack son ’s drive r ’ s l icens e both sh ow that h e ha d a “21” tatt ooed on his face. The poli ce wen t to Ja ckson ’s hom e wh ere they inte rv iewed h is mother. The y showe d her a still ima ge taken from th e survei ll ance

8 video, and she positively id entifie d the p erson in the s till image as Jackson. In the still image, Jacks on wore a n avy - blue P olo shirt a nd had a two - to ned, “ twists ” ha irstyle. The pol ice i nte rvi ewed Ja ckson shor tly after his arrest. When shown the still image of Do rsey ’s accompl ice from th e surv eil lan ce vi deo, Ja cks on id enti fied i t a s an image of himself. During a subseque nt search of Ja ckson’s home, th e poli ce saw a pile of clo thing that included a navy - blue shi rt li ke th at w orn by Jackson and a burgundy Polo h at mat chin g th at worn by D orsey during t he shooting. The hat w as swabbed for DNA. Subs equen t tes ting showed that the DNA on the hat mat ched DNA samples taken f rom b oth Jack son and D ors ey. The pol ice s earched Jall oh’s car and found bl ue bag s ben eath Ja ll oh’s pass enge r seat like the o ne taken by Jack son. Th e bags contai ned more t han $ 30,0 00 in cash. Jackson argu es th at th is evid ence f ail s to establis h that he was a party to th e cri mes for whi ch h e was conv ict ed be caus e he did not shoot Jalloh and was m erely prese nt w hen D orsey d ecide d to com mit the crim es. Jack son is correc t tha t “a p erson ’ s mer e pres enc e at th e

9 scene of th e crim e and mer e app roval of th e crim inal act ar e ins uffici ent to est abli sh th at [h e] w as a p art y to the crime, ” Grant v. State, 298 G a. 8 35, 8 37 (2 016), but h ere, th ere was evi den ce f rom which the jury could inf er that Ja ckson was no t merely pres ent, but rather an acti ve p articip ant i n th e crim e. Witn ess testi mony and th e survei ll ance vi deo sh owed that Jacks on w aited at th e gas s tati on with Dorsey, lef t the con ven ienc e stor e wh en Dors ey tapped on the glass, and mov ed to th e rea r of th e car wh en D orsey ap proa ched Jalloh ’ s car — actions fr om which a jur y could inf er that he wa s acting as a look ou t. Th en, w hen Dors ey poi nted a gun at Jall oh and then s truggle d to take Jall oh ’ s pr oper ty, Ja cks on wen t to Do rsey ’ s aid. A nd wh en D ors ey sho t Jal loh, Jack son took a bag from Jall oh and fl ed. Th is evi dence auth orize d a ju ry to conclu de that Jack son was an act ive parti cipan t in th e crimes. Thus, it “makes no diffe rence her e” th at the evi dence sh owed that Dorsey w as the on e who sho t and killed Jalloh; Jackson ’s “conduct s upports t he jury ’ s conc lusion that he shared an inte nt” to as sault and rob Jalloh a t gunpoint. See Mohamed, 307 G a. at 9 0. Jack son ’s conduct be fore,

10 during, and a fter the crimes supporte d the ju ry ’ s conclusion t hat he shared an in ten t to commi t the a ggrav ated ass aul t and arm ed robbery of Jallo h. Therefor e, th e evi dence was suffici ent for the jury to concl ude b eyo nd a reas onabl e dou bt th at Jack son was a p arty to the cri mes o f fel on y murd er, OCG A § 16 -5- 1(c), an d possessi on of a firearm duri ng t he comm issi on of a felon y, OC GA § 16 -2- 20(b). See Butle r, 313 Ga. at 67 9; Frazier v. State, 30 8 Ga. 45 0, 453 – 54 (2020). (b) Jackson conte nds that the trial court should ha ve gra nted his moti on f or ne w tri al on the “gen eral g roun ds, ” pursuant to OCGA §§ 5 -5- 20, 5 -5- 21, “for the s ame re asons ” he conten ds the eviden ce was alle gedly insuffic ient. Jackson argues that the record “d oes n ot show t hat th e tr ial court p rop erly exerci sed its di scr etion [.]” We disag ree. A lthough the evi dence was le gally suf ficient in this c ase to sustai n a convi cti on as a matt er o f du e pro cess, the trial cou rt had the a uthority to grant a new t rial if it found tha t the jur y’s ve rdict wa s “co ntrary to … the pr inciple s of just ice and equity,” OCGA § 5 - 5- 20, o r th e verdi ct wa s “dec idedly and strongly agains t the we ight

11 of th e evid ence [.]” O CGA § 5 -5- 21. When t hese so - called “g eneral groun ds” ar e prope rly raised i n a tim el y moti on for ne w tri al, th e trial jud ge must ex erci se a bro ad dis creti on to sit as a “thi rteen th juror. ” … [T]he m erits of th e tria l court ’ s decisio n on the general grou nds are n ot su bje ct to our r evi ew, an d the dec ision to grant a new trial on the ge neral ground s is veste d sol ely i n th e trial cour t. King v. State, 316 Ga. 611, 6 16 (2 023) (clea ned up). Here, th e t ria l court, afte r revi ewin g the evi den ce presen ted at trial, f ound as follo ws: As a s epara te inq ui ry, the C our t ha s also consi dere d its a uthorit y under OCGA § [§] 5-5-2 0 and 5 -5- 21. The Court h as con sid ered th e leg al s uffi cien cy of th e evid ence when co mbined with any co nflicts in the ev idence, the cred ibility o f witnesse s, and the weight o f the evi den ce. The C ourt h as also con side red th e merits o f Defendan t ’ s argu men ts. Th e Court, in an exerc ise o f discre tion, finds that the ve rdict was ne ither “ cont rary to evide nce and the p rinciple s of justice and eq uity, ” under OCGA § 5 -5 - 20 nor “ deci dedl y a nd stron gly agai nst th e weight o f the evi dence ” under OCGA § 5 -5- 21. The rec ord show s that the tri al cou rt weighed the evi dence an d cons ider ed the credib ility of the wit nesse s bef ore i t determi ned th a t Jackson w as not entitle d to a new tria l on the general gro unds. Because the t rial court ’s ord er refl ect s tha t it exe rcis ed its disc retion

12 as the th irt eenth juror, t his cla im present s nothing furth er for our review. I d. Compar e Ho lmes v. State, 306 Ga. 524, 52 8 (201 9) (“[W]hen the rec ord refl ects th at th e t rial c ourt revi ew ed the motion for new trial only for l egal suffi cien cy of the evi den ce, th e tri al cou rt has f ailed to exe rcise ” it s dis creti on under t he g e neral g roun ds. (e mpha sis added)). 2. Jac k s on c onten ds th at th e trial cou rt abu sed i ts di scret ion in allowing a State’s witn ess to giv e his “ opin ions and comm ents on a video of th e actu al murde r.” Sp ecific ally, he argue s that t he cour t should no t have allowed, over objecti on, Detecti ve B rown to tes tify about h is i denti fi cation of J acks on from th e g as sta tion survei ll ance video. He cont en ds that the d etecti ve should n ot h ave b een all owed to tes tify that t he vid eo sh owed J ack son as he “ snat ch ed a b ag” fr om the victi m and “fle[d] from the s ce n e. ” As a th reshold matt er, al thou gh Jack son claim s that h e object ed to the d etecti ve’s testi mon y regar din g Jack s on’s ac tivities on the sur veillanc e video, he identified in his brief an objecti on only to the admi ssi on of scr eensh ots of Jack son ’s social med ia. The r ecord

13 reflect s th at Jackson did not objec t to the tes tim ony h e now complai ns w as i mprop erly adm it ted. Thus, the cl aimed e rror w as not pres erved for ordi nary review, and we rev iew thi s clai m for plai n error only. See Gates v. State, 298 G a. 324, 327 (2 016); OCGA § 24 - 1- 103(d). Jackson cann ot sati sfy the test fo r estab lishing plain error becaus e he ha s not s hown the exi sten ce of an obviou s error. 2 In this case, even i f Jack son had obj ect ed, th e tri al cour t w as not requ ired to exclud e the detecti ve’s sta temen ts. “A witness ordin aril y may identi fy a pers on i n a ph oto or vi deo 2 To establish plain error, an appell ant must meet eac h prong of a four - prong test: [F]irst, there mu st be an erro r or def ect — some sort of deviation from a legal rule — that has not been intentionall y relinquished or abandoned, i.e., affirmativel y waived, by the appellant. S econd, the legal error mus t be clear or obv ious, rather than su bject to reasonable dispute. Third, the error must h ave affecte d the appellant’ s subst antial rights, which in the ordinary case means he must demonstrat e that it affected the outcome of t he trial court proceedings. Fourth and finally, if th e above three prongs are satisfied, the appe llate court has the discretion to remed y the error— discretion w hich ought to be exercised if onl y the error seriously affects the fairness, inte grity, or public reputa tion of judicial proceedings. Lewis v. State, 31 1 Ga. 650, 664 (2021) (quotation ma rks and emph asis omitted). As we have noted, affir matively establishing all four prongs “is a difficult standard to satisfy.” Id. at 665 (quotation mar ks omitted).

14 if the identif ication sat isfies OCGA § 24 -7- 701 (a) (Rul e 701 (a)). ” Le e v. State, 322 Ga. 44, 59 (202 5). Rule 701(a) auth orizes th e ad miss ion of lay witnes s testimo ny in the form o f opinions or infere nces that are rat ionally base d on the witness ’ s pe rcepti on, help ful t o a clea r unders tandi ng of the det ermin atio n of a fa ct in issu e, and n ot bas ed on sci entifi c, te chn ical, or othe r sp eciali zed kn owl edge. OCGA § 24 - 7- 701(a). 3 The witne ss may make such an ide ntificatio n if there is “ som e basis t o conclude ” that the witne ss is “ more l ikel y to cor rectl y ident ify ” th e per son in the video t han the jury is. Glenn v. Stat e, 30 2 Ga. 27 6, 2 79 (201 7). Wh en a c ourt is d ecidi ng wheth er “ some basis ” exists, th e cou rt can consi der m any factors, but the most i mpo rtant is the witness ’ s “ lev el of fami liari ty ” w ith the perso n in the video. Id. So if th e wi tness has prior k nowl edg e of th e per son or has i nter acted 3 OCGA § 24-7- 701(a) provides: If the witness is no t testifying as an expert, th e witness’s testimony in the form of opinion s or inf erences shall be limited to those opinions or inf erences which ar e: (1) Rationally based on the perception of the witness; (2) Helpful to a clear under standing of the witne ss’s testimony or the det ermination of a fact in issue; and (3) Not based on scientific, technic al, or other specialized knowledge within t he scope of Code Sec tion 24-7- 702.

15 with him be for e, a s the d et ectiv e di d here wi th J acks on, tha t co uld be a ba sis to conclude the witnes s is “ bette r equ ipp ed th an the jurors ” to make a good i den tifica tion. See i d.; Bullard v. State, 307 Ga. 482, 493 (201 9). In its orde r den yin g Jackson ’s m otion for a new trial, the cou rt found th at “su ch was th e case here, gi ven t he [detec tive’s ] fam il iarity with [J ackson ’s] ap pea rance d ue to hi s inv estig ation of th e case.” B ase d on the r ecord befor e us, even if Jackson had o bject ed, the t rial c ourt w ould n ot h ave abus ed i ts discre tion in a dmit ting th e det ecti ve’s t esti mony i den tify ing Jacks on on the sur veillance video rec ordings. See id. The refor e, the trial court did not plainly err in allo wing the d etective’ s testimo ny. See Lewis v. State, 311 Ga. 650, 66 5 (2021) (exp laining tha t t he appell ant can not prev ail if he fails on “ ev en on e el emen t of the plai n - error t est” (ci tati on omi tted)). 3. Jacks on a rgu es th at th e “ trial cour t erred in se ntenc ing the Defendan t, as man datory, t o li fe wit hout pa role [f or] fe lony murder as th e sen ten ce h ere f or f elony mu rder w as di scret ion ary an d n ot mandato ry.” The record does not su pport J acks on’s contenti on that

16 the trial cou rt mist akenl y beli eved i t was requ ired to imp ose a mandato ry s ente nce of life wit hout the po ssibility of paro le. Because the cou rt sentenced Jack son on the f elon y murder count s as a recidivis t under OCGA § 17 - 10 - 7(a) 4, it h ad the discre tion to sen tence h im eithe r to a l ife s enten ce or to a li fe sent ence witho ut the possib ility of par ole. OCGA § 16 -5- 1(e) (1) (“A person con victed of the o ffen se of m urder shal l be pu nis hed by de ath, by im prison ment for l ife with out pa role, or by i mpris onmen t fo r life.”). The transc ript sho ws that, at se ntencing, t he prosecu to r asked the cou rt to senten ce J ackson to l ife w ithou t pa role based on Jackson ’s “ lack of r emorse ” as wel l as h is c ondu ct du ring the tri al, 4 Code Section § 17 - 10 - 7(a) provides: (a) Except as otherwise provid ed in subsection (b) or (b. 1) of this Code section, any p erson who, after ha ving been convicted of a felony offense in this state or having be en convicted under the laws of any other state or of the United S tates of a crime w hich if committed within t his state would be a felony and senten ced to confinement in a pe nal institution, com mits a felony punish able by confinement in a pe nal institution s hall be sentenced to u ndergo the longest period of time prescri bed for the punish ment of the subsequent offense of which he or she stands con victed, provided that, unless otherwi se provided by law, the trial judg e may, in his or her discretion, probate or suspend the maximum se ntence prescribed for the of fense.

17 whi ch coun sel a rg ued sh owed a di srega rd f or “th e s eriou sness of thi s entire p roces s.” Th e prosecu tor did not stat e or sugg est that s uch a senten ce was man datory. Follo wing the S tate’ s argument, defens e couns el made no argum ent fo r lenien cy, asserti ng that t he c ourt was “bo und by the rec idivist no tice.” A lt hough the tria l court d id not expres sly s tat e at sen ten cing that it had exe rcis ed i ts disc retion in sent encing J ackson to life witho ut the po ssibility o f paro le, it d id not state that it believ ed su ch a sen tence was man dat ory. A nd ab s ent record eviden ce to the con trary, th is Court presu mes that “th e trial court u nders tood the n atu re of its di scre tion an d exerci sed i t.” Wilso n v. State, 3 02 Ga. 106, 108 (cit ation omit ted). H ere, the c ourt made its thoug ht process clea r at th e motion for n ew t rial h earing, vig orously reje cti ng cou nsel ’s as se rtion that the co urt im posed the senten ce based on defense c ouns el ’s mis taken beli ef that the senten ce was ma ndato ry. THE COUR T: So yo u’re thinki ng that I didn ’ t exerci se my dis cretion wh en I gav e him – TRIAL COUNSE L: It d oesn ’t sh ow it on th e re cord, Your Hon or. THE COUR T: So when I d id it, I did it because?

18 TRIAL COUNS EL Becau se you were tol d it was mandato ry. THE COUR T: You tho ught I d id it be cause the y told me I co uld? No, not in this build ing; no t in thes e walls; that’s not h ow i t goes. In its wr itte n order d enyi ng Jack son ’s moti on for n ew trial, the trial c ourt stated that it wa s “ful ly aw are o f the dif feren ce betw een secti on (a) and (c) reci div ist sen tencin g” and th at it bas ed i ts senten ce on th e Stat e’s argum ent at s ent encin g as wel l as t he eviden ce p resen ted a t tri al, incl udin g all the facts an d cir cumstan ces of the crim es. Further, t he tr ial court expla ined t hat “ [t] he sente nce was ent ered sol ely as an act of discr etion and not du e t o any misap prehen sion of the l aw. ” Becau se th e rec o rd shows that t he trial c ourt exerci sed its dis creti on when enteri ng t he sen tenc e, th e tria l court d id not err in sentencing J acks on to life without the possibi li ty of p arole. S ee Wil liams v. S tate, 316 G a. 147, 152 – 53 (202 3); D ozier v. State, 306 Ga. 29, 31 – 32 (201 9). 4. Jacks on as sert s that h e was d eni ed const itutio nally effectiv e assis tance of counsel whe n his attorn ey did not obj ect to the State ’s recomm end ed sentenc e of life without t he possibilit y of parole for

19 felony murde r and agr eed that t he court “must se ntence” accor dingly. To prev ail on a clai m of in effec tiv e assist ance of cou nsel, a defen dant must s how th at h is coun sel’s pe rforman ce was d eficien t and th at the d efici ent per form ance p reju dic ed him. Stric kland v. Was hington, 466 US 66 8, 687 (198 4). To s atisfy the defici ency pron g of the Strick lan d test, a de fend ant m ust d emon stra te th at t rial couns el “p erform ed at tri al in an objec tiv ely u nreas onabl e w ay cons idering all t he cir cumstanc es and in t he light of pre vailing profess ion al n orms. ” Butler v. State, 313 Ga. 675, 6 83 (2 022) (quot ation mark s omi tted). To sati sfy the preju di ce pron g of th e Stric kland test, a defen dant mu st demon stra te “a re ason able proba bili ty that, but for couns el’s defici ency, the re sul t of the tri al woul d have been di fferen t.” B urke v. St ate, 320 G a. 706, 708 (2025) (quot ation mark s omi tted). And, if a defen dan t fai ls t o mak e a suffic ient s howing on o ne pro ng of the Str ickla nd test, we n eed n ot address the othe r prong. Starks v. State, 320 G a. 30 0, 304 (20 24). Assuming, witho ut deciding, that coun sel w as deficient for

20 mista kenly be lieving that the trial court w as r equ ired t o sen tence Jac kson to life without the possibility of pa role for fel ony m urder, Jackson has n ot sh own that, h ad h e object ed to th e sentence and argued fo r leniency, the re is a rea sona ble p rob abili ty th at the outcom e w ould h ave been diffe ren t. I n its order denying the motion for new trial, th e trial cour t exp ressly stat ed tha t it i nten ded t o impos e the sent ence it did base d on the Stat e’s argu men ts an d Jackson ’s ap par ent lack of remors e. Becau se J acks on faile d to satisfy the p reju dice pr ong of the Strickla nd stan dard, Jack son failed to m eet h is burd en of es tabli shi ng in effecti ve assistan ce of couns el. See Sta rks, 320 Ga. at 304. C onsequ ently, th is cl aim of err or fails. 5. Alt hough the trial co urt did not abus e its discret ion in sent encing Jac kson to life in p rison without the possibilit y of paro le for fe lony murd er, see Divisio n 3, supra, it did err in impo sing that senten ce on b oth coun ts of f elon y murd er. “When a d efendant is found guilty on multiple c ounts of murder for a s ingle homicid e, all additi onal c oun ts beyon d one f or w hi ch the def endan t is s entenc ed

21 are su rpl usage an d mus t be v acat ed.” Wa lton v. St ate, 303 G a. 11, 17 (2 018). Unde r th e cir cum stanc es he re, Jackson ’s s ent ence s fo r felony murde r a nd th e sent enc es fo r predi cat e fel oni es un derly ing the felon y mu rder cou nts must b e vaca ted an d the case rem anded for r esent encin g, so that the t rial cou rt may prope rly sent ence Jackson “fo r fel on y mu rder on a s ing le coun t an d to r econ side r sent encing in ligh t of the remaining p redicat e offens e for the sur plus count of felony mur der whi ch mu st be vac ated by o perati on of l aw.” Id. Becaus e the c ourt err oneou sly senten ced Ja ckson on both fel ony murder con victi on s in stead of va cating one o f them, it did not cons ider whether the surp lus pred icate f elony merge s as a matter of fact into t he single fel ony m urder convict ion re maining. It may do so on rem and. 5 See, e.g., Noel v. State, 297 Ga. 698, 700 (2015) (“[O]n resen tencin g, a l egal con victi on may be ente red on on ly on e felon y murder v erdi ct, the un derly ing felon y charg ed in that coun t wil l 5 We note that, because the court ran Ja ckson’s sentence fo r his fire arm conviction consecutive to the felony mu rder sentence s that have been vacated, the tria l court must also resentence Jackson on his firearm possessi on conviction.

22 merge i nto th e f elon y mu rder c onv iction as a m atte r of l aw, the remain ing felon y murd er verdi cts wi ll s tand vacate d by op erati on of law, an d a det ermi nation wh ether t he rem ain in g non - murder feloni es me rge as a matt er of fact i nto the fel ony mu rder c onv icti on wil l need to be made. ”); Cowart v. State, 294 Ga. 333, 336 (2) (2 013) (hold ing that the decision re garding which f elony murd er verdic ts shal l be de eme d vacat ed, whi ch may aff ect o ther sent encin g decisi ons, i s l eft t o the disc retion of the tri al cour t on remand). Judgment affirmed; senten ce vacat ed in part and ca se remand ed for re sent encin g. All t he J ustice s con cu r.