Robinson v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: August 12, 2025

S25A0632. ROBINSON v. THE STATE.

COLVIN, Justice.

Appellant Kenneth Robinson appeals his convictions for malice

murder and other crimes related to the shooting death of Devontae

Jones and the aggravated assault of Charmisa Witherspoon.1 On

1 The crimes occurred between late September and early October of 2008.

On November 18, 2008, a Fulton County grand jury returned a 22-count
indictment against Appellant and other co-indictees. Appellant was charged
with 20 of the 22 crimes, including participation in criminal street gang
activity (Count 1), conspiracy to commit aggravated assault against Jesus
Cintron (Count 2), malice murder of Cintron (Count 3), malice murder of
Fernando Wingfield (Count 4), felony murder of Cintron (Count 5), felony
murder of Wingfield (Count 6), aggravated assault with a deadly weapon
against Cintron (Count 7), aggravated assault with a deadly weapon against
Wingfield (Count 8), aggravated assault against Cintron (Count 9), possession
of a firearm during commission of a felony, that is, the aggravated assault of
Cintron (Count 10), possession of a firearm during the commission of a felony,
that is, the aggravated assault of Wingfield (Count 11), conspiracy to commit
a crime, that is, the murder of Jones and Witherspoon (Count 12), malice
murder of Jones (Count 13), felony murder of Jones (Count 14), criminal
attempt to murder Witherspoon by holding a handgun to her head and pulling
the trigger (Count 15), aggravated assault with a deadly weapon against Jones
(Count 16), aggravated assault with a deadly weapon against Witherspoon by
shooting at, toward, and in her direction with a handgun (Count 17), possession
of a firearm during commission of a felony, that is, the aggravated assault of
Jones (Count 18), possession of a firearm during commission of a felony, that
is, the aggravated assault of Witherspoon (Count 19), and aggravated cruelty
to animals (Count 20).
Appellant was tried before a jury with codefendants John Auletta, Darryl
Christmas, Derek Davis, and Scott Tobin from October 19, 2010, through
November 5, 2010. The trial court granted Appellant a directed verdict on
Counts 3 (malice murder of Cintron), 4 (malice murder of Wingfield), 5 (felony
murder of Cintron), 6 (felony murder of Wingfield), 7 (aggravated assault with
a deadly weapon against Cintron), 8 (aggravated assault with a deadly weapon
against Wingfield), 10 (possession of a firearm during commission of a felony,
that is, the aggravated assault of Cintron), 11 (possession of a firearm during
commission of a felony, that is, the aggravated assault of Wingfield), and 15
(criminal attempt to murder Witherspoon by holding a handgun to her head
and pulling the trigger). Count 20 for aggravated cruelty to animals was dead
docketed and later nol prossed. The jury found Appellant guilty on all
remaining counts except Count 9 (the aggravated assault of Cintron).
The trial court sentenced Appellant to 15 years in prison for participation
in criminal street gang activity (Count 1); 10 years for conspiracy to commit
aggravated assault against Cintron (Count 2) to run concurrently with Count
1; life for the malice murder of Jones (Count 13) to run consecutively to all
other counts; 20 years for the aggravated assault of Witherspoon (Count 17) to
run consecutively to all other counts; and 5 years for each conviction for the
possession of a firearm during the commission of a felony, that is the
aggravated assaults of Jones and Witherspoon (Counts 18 and 19, respectively)
to run consecutively to all other counts. Counts 12, and 16 merged into Count
13 for sentencing purposes. Count 14 for the felony murder of Jones was
vacated by operation of law. See Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d
1) (2014) (“[W]hen a valid guilty verdict is returned on both malice murder and
felony murder of the same victim, the defendant should be sentenced for the
malice murder, and the alternative felony murder count stands vacated by
operation of law[.]”).
The trial court modified the sentences on December 10, 2010, imposing
a life sentence for the malice murder of Jones (Count 13) to run consecutively
to Count 1; a 20-year sentence for the aggravated assault of Witherspoon
(Count 17) to run consecutively with Count 13; and five-year sentences for
possessing a firearm during the aggravated assaults of Jones and Witherspoon
(Counts 18 and 19, respectively) to run consecutively to each other and

2
appeal, Appellant argues that trial counsel was ineffective for failing

to inform him of a plea offer; that the trial court’s sentencing

procedure violated his rights under the United States Constitution

and Georgia law; that the trial court abused its discretion because it

did not understand the breadth of its sentencing discretion; and that

the trial court erred in failing to merge certain counts for sentencing

purposes. We affirm Appellant’s convictions for the reasons

explained below.

The trial evidence showed the following. Jesus Cintron lived

with his girlfriend, Charmisa Witherspoon, and her son, Devontae

Jones. On October 5, 2008, Cintron left his home to attend a gang

meeting for the 9 Trey Bloods, a subset of the Bloods gang. Cintron

consecutively to Count 17. All other original sentences remained the same.
Appellant filed a motion for new trial on November 29, 2010, which he
amended through new counsel on July 15, 2022, and November 7, 2022. The
trial court denied Appellant’s motion for new trial on November 8, 2022.
Appellant filed a notice of appeal on November 8, 2022, but we dismissed the
appeal on February 23, 2023, because the case was still pending below due to
Count 20 being dead docketed. The State moved to nol pros Count 20 on March
20, 2023, and the trial court granted the motion on June 16, 2023. Appellant
filed an amended notice of appeal on January 7, 2025, and the case was
docketed to this Court’s April 2025 term and submitted for a decision on the
briefs.
3
was killed during the meeting, and after he did not return home the

next morning, Witherspoon called and left a voice message for a law

enforcement officer.

Darryl Christmas was the leader of the 9 Trey Bloods.

Christmas became aware that Witherspoon might work with law

enforcement to locate Cintron, and he plotted to have Witherspoon

and her son killed. Christmas held a meeting at his house with other

gang members to discuss their plan. Tyeisha Marshall was a

member of the 9 Trey Bloods. She testified that she, Appellant,

Auletta, Marquise Robbins, and Tobin were gang members and were

present for the meeting at Christmas’s house. Robbins also testified

that those gang members were present for the discussion about

killing Witherspoon and Jones.

According to Marshall and Robbins, the plan was to ride over

to Witherspoon’s house and send Robbins inside first because

Witherspoon trusted him. Once Robbins was inside, he was to call

Marshall — who would be waiting outside in her truck with

Appellant, Auletta, and Tobin — to tell her how many people were

4
inside Witherspoon’s home. At that point, Auletta and Tobin were to

leave the car, enter the house, and kill Witherspoon and Jones.

That plan, however, changed. Marshall testified that she drove

Appellant, Auletta, Robbins, and Tobin from Christmas’s home to

Witherspoon’s, and that on the way, Appellant said that he wanted

to participate in the murder. Similarly, Robbins testified that, at

some point between leaving Christmas’s house and arriving at

Witherspoon’s, Appellant expressed “want[ing] to do it so he could

prove that he could be aggressive.” Appellant, however, who was age

fourteen at the time of the crime, testified in his own defense that

he had been dragged into the plan, even though he did not want to

participate. Both Marshall and Robbins testified that Appellant took

Tobin’s place in the plan to commit the murders.

Once the gang members arrived at Witherspoon’s house,

Robbins walked to the front door alone, and Witherspoon let him

inside. Robbins then walked to Jones’s bedroom and briefly peeked

his head in. After leaving Jones’s bedroom, Robbins called Marshall

and told her that it was “2:00.” Robbins further testified that he told

5
Witherspoon he was leaving, and that Witherspoon came to help him

open the door. According to Robbins, Auletta and Appellant then

“bust[ed] through the house.” Witherspoon similarly testified that

she saw two men and a gun as Robbins opened the front door.

Robbins and Appellant both testified that Auletta ran through

the house. According to Robbins, Appellant stayed near the front

door while Robbins ran back to Marshall’s vehicle and Witherspoon

ran out of the house. Likewise, Witherspoon testified that she ran

out of her house and to her neighbor’s house when the men came

inside her home. Appellant testified that once he was “sure”

Witherspoon was “gone off the steps” of her front porch, he “pulled

the gun out[ ] and . . . shot to the side one time[,]” missing

Witherspoon.

Witherspoon testified that she glanced over her shoulder while

she was running away and did not see anyone behind her. Once she

made it to her neighbor’s home, she began to bang on the door, but

no one answered. As she continued banging on the door, she heard

two gunshots come from her home. Robbins testified that Auletta

6
eventually left Witherspoon’s house, went to Witherspoon’s

neighbor’s house, took the gun from Appellant, and tried to shoot

Witherspoon but could not because the gun was jammed. Likewise,

Witherspoon testified that she saw three men at the neighbor’s

house shortly after she heard gunshots come from her own home.

Witherspoon then picked up a large potted plant, and while laying

on her back, used it to keep off one of the men who was attempting

to put a gun to her head. Witherspoon testified that she heard

Robbins’s voice in the background saying, “Kill the b*tch, kill the

b*tch.” And she further testified to “hear[ing]” the gunman’s

attempt to shoot her twice because the gun made a “click[ing]”

sound. The gun did not fire, and the men retreated.

Marshall testified that she could not see much from her truck,

but that she heard three or four gunshots, Witherspoon screaming,

and Robbins saying, “Shut up, b*tch,” “Get that b*tch[,]” and “Let’s

go[.]” She further testified that, after the failed attempt to kill

Witherspoon, Appellant returned to the truck, followed by Auletta,

and that she drove all of the gang members away from the scene.

7
Witherspoon returned to her home after the men retreated and

found her son and his dog dead at their house.

1. On appeal, Appellant contends that trial counsel was

constitutionally ineffective for failing to communicate a plea offer for

life with the possibility of parole, which Appellant claims he would

have accepted. This claim fails.

At the motion for new trial hearing, Appellant and trial counsel

both testified. Appellant testified that he did not recall being

presented with a plea offer, and that he would have accepted an offer

of life with the possibility of parole if it had been presented to him.2

Trial counsel also said that he did not recall whether he

2 We note that, in 2008 when the crimes were committed, a life sentence

with the possibility of parole was the only sentence which could have been
presented in a plea offer to Appellant because the State did not seek the death
penalty against him, and Appellant had no prior convictions. See Kimbrough
v. State, 300 Ga. 516, 518-520, 518 n.5 (3) (796 SE2d 694) (2017) (explaining
that a sentence of life without the possibility of parole was permitted for a
murder committed before 2009 only if the State noticed its intent to seek the
death penalty or if the defendant was subject to recidivist sentencing under
OCGA § 17-10-7 (b)). See also Fleming v. State, 271 Ga. 587, 589 (523 SE2d
315) (1999) (“[I]n general, a crime is to be construed and punished according to
the provisions of the law existing at the time of its commission.”). Accordingly,
at issue is whether trial counsel failed to communicate a plea offer for an
aggregate sentence of life, as opposed to the sentence which Appellant actually
received, life plus a number of consecutive years.
8
communicated the State’s offer of life with the possibility of parole

to Appellant. But trial counsel testified that he “begged” the

prosecution for a more lenient offer, and that those discussions were

something he “would have” conveyed to Appellant because his

general practice was to “tell [his] client . . . what [he] said” and how

the prosecution “repl[ied]” “anytime [he] talked to the prosecution[.]”

Trial counsel further testified that he “would have conveyed” to

Appellant that the prosecution’s life offer was parolable, and that it

was his habit to “write out everything[,]” tell his client “what the

worst case” would be, and then “give . . . a recommendation.”

In its order denying Appellant’s motion for new trial, the trial

court found that trial counsel communicated the plea offer to

Appellant based on trial counsel’s testimony, which the court

credited over Appellant’s “self-serving” testimony. And on that

basis, the trial court concluded that Appellant had not established

deficient performance.

To prevail on his ineffective-assistance claim, a defendant

“must show both that his counsel’s performance was constitutionally

9
deficient and that he was prejudiced by this deficient performance.”

Lynn v. State, 310 Ga. 608, 612 (4) (852 SE2d 843) (2020) (citing

Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984)). To establish deficiency, a defendant must show

that trial counsel “performed at trial in an objectively unreasonable

way considering all the circumstances and in the light of prevailing

professional norms.” Woods v. State, 312 Ga. 405, 410 (III) (1) (862

SE2d 526) (2021) (citation omitted). And to establish prejudice, a

defendant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” Lynn, 310 Ga. at 612-613 (4) (citation and

punctuation omitted). If a defendant “fails to meet his or her burden

of proving either prong of the Strickland test, the reviewing court

does not have to examine the other prong.” Stallworth v. State, 304

Ga. 333, 334 (2) (818 SE2d 662) (2018).

The United States Supreme Court has held that, as a general

rule, trial counsel has a duty to communicate formal plea offers “that

may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145

10
(II) (B) (132 SCt 1399, 182 LE2d 379) (2012). “Where a defendant

alleges that a plea offer was not disclosed to h[im], the defendant

‘must show the outcome of the plea process would have been

different with competent advice.’” Jacobs v. State, 306 Ga. 571, 574

(2) (a) (832 SE2d 363) (2019) (quoting Lafler v. Cooper, 566 U.S. 156,

163 (II) (B) (132 SCt 1376, 182 LE2d 398) (2012)). To establish

prejudice in this context, a defendant must show:

(1) that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), (2)
that the court would have accepted its terms, and (3) that
the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.

Id.
Here, Appellant has not established deficient performance.

Although Appellant contends that trial counsel was deficient for

failing to communicate a plea offer to him, the trial court found that

trial counsel communicated the State’s plea offer. And that factual

finding, which was supported by the record, was not clearly

11
erroneous because trial counsel testified that it was his custom to

“write out everything,” communicate plea offers to his clients, and

give his own recommendation of whether to accept the plea offer.

Trial counsel also testified that he “begged” the prosecution for a

more lenient offer and that his discussions with the State were

something that he “would have” conveyed to Appellant. Accordingly,

this claim fails. See Bryant v. State, 306 Ga. 687, 693-696 (2) (a) (832

SE2d 826) (2019) (affirming that trial counsel was not deficient “in

how she handled . . . plea negotiations” because (1) the trial court

was “entitled to believe” trial counsel’s testimony that she discussed

with the appellant the risks of going to trial and the possibility that

he might be sentenced to life without parole and (2) the trial court

was “entitled to disbelieve” the appellant’s testimony that his

counsel did not convey to him that if he opted to go to trial and

decided against testifying, the jury would not be instructed on

voluntary manslaughter); Green v. State, 279 Ga. 687, 689 (620

SE2d 788) (2005) (“Although a witness may have no

distinct . . . recollection of the details of a fact occurring in the course

12
of the routine of his business, he may testify as to his fixed and

uniform habit in such cases and state that he knows that he did not

vary from that habit.”) (citation and punctuation omitted), overruled

on other grounds by Lejeune v. McLaughlin, 296 Ga. 291, 297 (2)

(766 SE2d 803) (2014).

2. Appellant makes three arguments related to the sentencing

phase of his trial. First, Appellant argues that he was denied counsel

because trial counsel “provided no assistance whatsoever” during

sentencing, contrary to the Sixth Amendment’s guarantee of the

right to counsel at that stage of the proceeding. Second, Appellant

argues that, during sentencing, the trial court “refused” to allow

Appellant or his trial counsel an opportunity to speak in violation of

his federal and state due process rights. Finally, Appellant

maintains that the trial court’s failure to conduct a presentence

hearing violated his rights under OCGA § 17-10-2. For the reasons

explained below, Appellant’s arguments fail.

By way of background, at the sentencing hearing, which

occurred immediately after the jury returned its verdict, a victim

13
advocate read a victim impact statement from Witherspoon’s aunt.

Immediately thereafter, the trial court called upon the State to give

its sentencing recommendation for Auletta. The trial court

confirmed the recommendation with the State and then addressed

Auletta and his counsel saying, “Unless you’ve got something to say,

sir, I’m going to go ahead and pronounce sentence at this time.

Anything, Mr. Giudice? Mr. Auletta?”3 Auletta’s counsel declined to

present any argument, and the court proceeded to sentence Auletta.

One by one, the trial court called each defendant’s name and

asked the State for its recommendation. But other than for Auletta,

the trial court did not ask any of the remaining defendants or their

counsel whether they had anything to say. The State gave its

sentencing recommendation when it was Appellant’s turn to be

sentenced. The trial court then told Appellant that he was “the

saddest part of th[e] whole process with the exception of the victims”

because he was “very, very young” when everything “went down.”

The trial court also told Appellant that he was a 14-year-old

3 Mr. Guidice was counsel for Auletta.

14
“predator” who was “trying to sharpen [his] claws[,]” who was

“probably one of the most dangerous people in th[e] courtroom[,]”

and who may never “know the difference between right or wrong.”

The court further stated its belief that it was “fully [Appellant’s]

intention” to kill Witherspoon, and that she was living by “the Grace

of God[.]” The court then imposed Appellant’s sentence which was

life plus forty-five consecutive years.4 After announcing Appellant’s

sentence, the trial court asked Appellant whether he understood it,

and Appellant nodded his head in the affirmative.

At the motion for new trial hearing, trial counsel testified that

he wanted to make an argument on Appellant’s behalf at sentencing

but that he was “shocked” that the trial court sentenced Appellant

without first hearing from his defense counsel. Trial counsel further

testified that he “thr[ew] [his] hands up[,]” but the judge “didn’t even

4 The trial court announced that it was sentencing Appellant to “life plus

55 years consecutive,” but this appears to have been a miscalculation.
Appellant was sentenced to “10 years concurrent” for Count 2, which would
have resulted in a total sentence of life plus 45 consecutive years, rather than
55 consecutive years. Moreover, in a modified sentence, the court imposed
Appellant to a sentence of life plus 45 consecutive years.
15
acknowledge [him]” and just “walked off” after sentencing

Appellant. According to trial counsel, he failed to object or make any

kind of statement because he was “just so taken aback” by the trial

court’s sentencing procedure.

If given the opportunity, trial counsel testified, he would have

made several arguments during sentencing, including that

Appellant’s mother had kicked him out of the house, that Appellant

could not drive, that Appellant had “no real means of support”

outside of the gang, and that there was “no real reason to treat

children like adults.” Trial counsel further testified that he would

have elaborated on another murder case in which he represented a

juvenile who was doing well after being released from custody after

turning 21 years old. According to trial counsel, he believed

Appellant would “do well” too because he was “a bright kid.” Trial

counsel also testified that he believed that the trial court “already

knew” that the idea of “sending children to prison with this super

predator notion . . . had been debunked” and that “the law just hadn’t

caught up with it.” According to trial counsel, he still wanted to “put

16
it on the record” that there was “no real reason to treat children like

adults.”

In its order denying the motion for new trial, the trial court

found that it held a presentence hearing in which it heard a victim

impact statement and the State’s sentence recommendations in

alphabetical order for each codefendant beginning with Auletta. And

the court denied Appellant’s motion for new trial, in part, because

neither Appellant “nor his counsel provided any argument or

evidence on mitigating the recommended sentence,” and neither

Appellant nor his counsel made “any objection to the trial court’s

sentence[.]”

(a) In his first sentencing-related challenge, Appellant argues

that he was denied his Sixth Amendment right to counsel.

Ordinarily, when a defendant claims that he was deprived of the

right to assistance of counsel, courts assess whether the alleged

deprivation caused prejudice to the defendant under Strickland. But

in United States v. Cronic, the United States Supreme Court

identified three “circumstances that are so likely to prejudice the

17
accused” that “[n]o specific showing of prejudice [i]s required[.]” 466

U.S. 648, 658-659 (III) (104 SCt 2039, 80 LE2d 657) (1984). The first

and “[m]ost obvious” scenario that justifies presuming prejudice is

when there is a “complete denial of counsel” during a “critical stage

of . . . trial.” Id. at 659 (III). The second scenario is when “counsel

entirely fails to subject the prosecution’s case to meaningful

adversarial testing[.]” Id. And the final scenario is when counsel is

called upon “to assist the accused during trial,” but “the likelihood

that any lawyer, even a fully competent one, could provide effective

assistance [without being given adequate time to prepare] is so

small that a presumption of prejudice is appropriate without inquiry

into the actual conduct of the trial.” Id. at 659-660 (III).

In the present case, Appellant asserts that trial counsel “did

not speak at all [during sentencing] because the [trial court] refused

to give him an opportunity to” and that this “amounted to a complete

denial of counsel during a critical stage” under Cronic’s first

exception. We disagree. In explaining Cronic’s first exception, the

Supreme Court noted that it has “uniformly” presumed prejudice

18
“when counsel was either totally absent[ ] or prevented from

assisting the accused during a critical stage of the proceeding.”

Cronic, 466 U.S. at 659 n.25 (III). But here, trial counsel was present

for the entire sentencing proceeding. And because trial counsel did

not object, putting the trial court on notice that he had an argument

to make, the record does not indicate that the trial court took any

steps to prevent such an argument. Accordingly, this is not a case

falling within Cronic’s first exception. Compare Geders v. United

States, 425 U.S. 80, 91 (96 SCt 1330, 47 LE2d 592) (1976) (holding

that “an order preventing [the defendant] from consulting his

counsel ‘about anything’ during a 17-hour overnight recess between

his direct-and cross-examination impinged upon his right to the

assistance of counsel guaranteed by the Sixth Amendment”);

Herring v. New York, 422 U.S. 853, 865 (II) (95 SCt 2550, 45 LE2d

593) (1975) (holding that the defendant was denied his

constitutional right to counsel when the trial court orally denied his

counsel’s request to make summations).

Appellant also cites to Bell v. Cone and suggests that prejudice

19
should be presumed under Cronic’s second exception. Bell v. Cone,

535 U.S. 685 (122 SCt 1843, 152 LE2d 914) (2002). During the

sentencing phase of Bell, a state capital case, defense counsel made

an opening statement in which he discussed the mitigating evidence

that came up throughout the trial, “suggested that [the defendant]

was under the influence of extreme mental disturbance[,]” “urg[ed]

that [the jury] choose life for his client,” cross examined at least one

Government witness, and successfully objected to certain

Government evidence. Id. at 691 (I), 701 (III). On appeal, the

defendant argued that Cronic, rather than Strickland, should apply

to his claim that counsel rendered ineffective assistance during his

sentencing hearing by failing to adduce mitigating evidence and

waiving closing argument. See Bell, 535 U.S. at 696-697 (II). But the

Supreme Court rejected the defendant’s claim. The Bell Court

reasoned that “an attorney’s failure to test the prosecutor’s case”

during sentencing “must be complete” before prejudice can be

presumed under Cronic. Id. at 697 (II). And because the defendant

argued only that his counsel was ineffective at “specific points[,]” not

20
that his “counsel failed to oppose the prosecution throughout the

sentencing proceeding as a whole,” the Supreme Court concluded

that Strickland applied to the claim, rather than Cronic. Id at 697-

698 (II).

We are unconvinced that Bell would require us to hold that

Cronic’s second exception applies to Appellant’s case. The Bell Court

opined that prejudice is presumed under Cronic’s second exception

when counsel “fail[s] to oppose the prosecution throughout the

sentencing proceeding as a whole[.]” Bell, 535 U.S. at 697 (II). But

as noted above, Bell was a state capital case. And sentencing

proceedings in state capital cases — like in federal cases — tend to

include the presentation of extensive argument and evidence. The

sentencing phases of state capital cases, in particular, tend to be

more detailed because they carry the additional weight of potential

state executions. See Woodson v. North Carolina, 428 U.S. 280, 304

(III) (C) (96 SCt 2978, 49 LE2d 944) (1976) (“[I]n capital cases[,] the

fundamental respect for humanity . . . requires consideration of the

character and record of the individual offender and the

21
circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of death.”).

By contrast, sentencing proceedings in state non-capital cases in

Georgia, like the present case, are commonly brief. And as a result,

it is not uncommon for there to be little in the way of argument or

evidence presented during a sentencing hearing. We are not

persuaded that these types of brief sentencing proceedings were the

kind that the Bell Court envisioned when it held that prejudice

should be presumed when counsel “fail[s] to oppose the prosecution

throughout the sentencing proceeding as a whole[.]” Bell, 535 U.S.

at 697 (II) (emphasis supplied).

Moreover, in Bell, the Supreme Court declined to presume

prejudice under Cronic’s second exception when the State made

opening and closing arguments and presented evidence, but the

defense put up no case of its own. Bell, 535 U.S. at 691-692 (I). We

thus decline to apply Cronic’s second exception here, where the State

only presented a victim impact statement and gave a sentencing

recommendation but otherwise did not put up any additional

22
evidence for trial counsel to oppose during sentencing. Accordingly,

we apply Strickland and decline to presume prejudice under Cronic

and Bell.

Pretermitting whether trial counsel was deficient for failing to

speak during Appellant’s sentencing, Appellant cannot show

prejudice, so his ineffective-assistance claim fails. At the motion for

new trial hearing, trial counsel represented to the court that if he

had spoken during the sentencing, he would have argued that there

was “no real reason to treat children like adults[,]” that Appellant

had no real means of support outside of a gang because his mother

had kicked him out of the house, and that he was a “bright kid” who

could do “well” like another client of his who was released from

custody at the age of 21. But trial counsel also testified that the trial

court “already knew” that there was no reason to treat children as

adults. According to trial counsel, he simply wanted to put his

argument “on the record.” Indeed, the trial court told Appellant

during sentencing that he was “the saddest part of th[e] whole

process . . . because [he] [was] very, very young” when everything

23
“went down.” The trial court further stated that Appellant was a “14-

[year-old] predator[.]”

Appellant has failed to prove that trial counsel’s arguments

would have resulted in a different sentencing outcome such as the

trial court exercising its broad sentencing discretion any differently

by running more of Appellant’s sentences concurrently, rather than

consecutively. See State v. Riggs, 301 Ga. 63, 69 (2) (a) (799 SE2d

770) (2017) (“[T]rial courts have great discretion in determining

whether to run sentences concurrently or consecutively.”). This is

because the trial court’s statements show that it was already aware

of Appellant’s age, and trial counsel testified that the trial court

“already knew” there was no reason to treat children as adults. See

Evans v. State, 300 Ga. 271, 276, (794 SE2d 40) (2016) (“When

sentencing, a trial court may consider any evidence that was

properly admitted during the guilt-innocence phase of the trial[.]”

(citation and punctuation omitted)). Cf. Martin v. McCotter, 796 F2d

813, 820 (IV) (5th Cir. 1986) (holding that counsel was not ineffective

for remaining silent during the sentencing hearing when counsel

24
“participated vigorously in the guilt-innocence phase of [the

defendant’s] trial” and elicited “testimony that would seem relevant

not only to the determination of guilt or innocence but also to the

sentencing decision”).

And to the extent that trial counsel would have made other

arguments, for example, that Appellant’s mother kicked him out of

the house, it is not likely that those arguments would have resulted

in a more favorable sentence for Appellant. This is especially so

given the severity of Appellant’s crimes, which included conspiring

to murder a mother and her son, riding to the mother’s house,

assaulting the mother as she ran away, and being a party to the

crime of killing the son. See Martin, 796 F2d at 819 (IV) (holding

that, under Strickland, the defendant was not prejudiced by his

counsel’s silence during the sentencing stage because “[t]he violent

nature of the [crime] supported the imposition of a heavy sentence”).

For these reasons, Appellant cannot show that he was prejudiced by

his counsel’s deficient performance, and his ineffective-assistance

claim fails.

25
(b) Appellant further argues that the trial court’s sentencing

procedure violated his due process rights under the federal and state

constitutions.5 These claims also fail. It has long been recognized

that the “very essence” of due process is having a “meaningful

opportunity to be heard.” Ramos v. Terry, 279 Ga. 889, 891 (1) (622

SE2d 339) (2005) (citation and punctuation omitted). But Appellant

cites no case law, and we have found none, standing for the

proposition that a “meaningful opportunity to be heard” requires a

trial court to ask the defense if it wants to comment on sentencing.

Moreover, Appellant has not shown that he was denied such an

opportunity because the record does not show that he requested an

opportunity to be heard. Additionally, after the court imposed

Appellant’s sentence and asked him whether he understood it,

Appellant nodded his head in the affirmative and failed to make any

argument. Appellant therefore has not shown that his due process

rights were violated, and his claim fails. See Small v. State, 285 Ga.

5 Appellant does not differentiate his procedural due process rights under

the federal constitution from his procedural due process rights under the state
constitution or argue that one provides him greater protections.
26
App. 445, 446 (646 SE2d 292) (2007) (holding that the defendant’s

presence for sentencing was sufficient to satisfy the demands of due

process when he and his counsel were present for the entire

sentencing hearing and had the opportunity to present evidence and

to object but did neither).

(c) For his final sentencing-related claim, Appellant contends

that the trial court violated OCGA § 17-10-2 because it failed to hold

a presentence hearing in which trial counsel could “argue regarding

the punishment to be imposed.” 6 Appellant, however, did not

6 OCGA 17-10-2 provides that,

(a)(1) [e]xcept in cases in which the death penalty may be
imposed, upon the return of a verdict of “guilty” by the jury in any
felony case, the judge shall dismiss the jury and shall conduct a
presentence hearing at which the only issue shall be the
determination of punishment to be imposed. In the hearing the
judge shall hear additional evidence in extenuation, mitigation,
and aggravation of punishment, including the record of any prior
criminal convictions and pleas of guilty or nolo contendere of the
accused, or the absence of any prior conviction and pleas.

(2) The judge shall also hear argument by the accused or the
accused’s counsel and the prosecuting attorney, as provided by
law, regarding the punishment to be imposed. Except in cases
where the death penalty may be imposed, the prosecuting attorney
shall open and conclude the argument. . . .

27
preserve this claim for ordinary appellate review. And plain error

review does not apply because it is

limited to the sentencing phase of a trial resulting in the
death penalty, a trial judge’s expression of opinion in
violation of OCGA § 17-8-57, and a jury charge affecting
substantial rights of the parties as provided under OCGA
§ 17-8-58 (b), and, for cases tried after January 1, 2013,
with regard to rulings on evidence, a court is allowed to
consider plain errors affecting substantial rights although
such errors were not brought to the attention of the court.
OCGA § 24-1-103 (d).

Miller v. State, 309 Ga. 549, 552 (2) (847 SE2d 344) (2020).

Accordingly, Appellant’s claim is waived.

3. Appellant also argues that the trial court abused its

discretion in sentencing him to a consecutive sentence on Count

18 — charging him with possession of a firearm during the

aggravated assault of Jones — because the court did not understand

that it was not required to run that sentence consecutively to the

other sentences imposed. Appellant has waived this claim, however,

because he raises it for the first time on appeal, and his sentence as

OCGA § 17-10-2 (a) (1) – (a) (2).

28
to Count 18 was not void given that it fell within statutory range.

We also decline to review Appellant’s claim for plain error for the

reasons explained in Division 2 (c). See Blash v. State, 318 Ga. 325,

326, 337-338 (5) (b) (898 SE2d 522) (2024) (holding that the

appellant had “not preserved his claimed sentencing error for

appellate review because he failed to object and . . . plain error

analysis d[id] not apply” but noting that we do

“address . . . arguments to the extent that [they] challenge[ ] the

voidness of . . . sentences”).

The special concurrence argues that we should resolve

Appellant’s claim on the merits because we resolved a similar claim

in Williams v. State, 306 Ga. 674 (832 SE2d 843) (2019). In Williams,

the appellant argued that “the trial court erred when it ran his

sentence for possession of a firearm consecutively both to his

sentence for malice murder and to his sentence for the aggravated

assault of [the victim].” Id. at 676 (2). We vacated the appellant’s

sentence in part and remanded for resentencing on the ground that

the “record contain[ed] no evidence that the trial court understood”

29
that it could have “run [the appellant’s] sentences consecutively to,

or concurrently with, his sentences on other counts.” Id. at 677 (2).

But contrary to the special concurrence’s assertion, Williams

cannot stand for the proposition that it is proper for us to address

an unpreserved sentencing error given that Williams itself did not

address a preservation-of-error issue. See Ga. Dep’t of Human Servs.

v. Addison, 304 Ga. 425, 427 n.3 (819 SE2d 20) (2018) (noting that

“[a] decision of this Court obviously is not precedent for a point it

does not actually address and resolve” and that a “question which

merely lurks in the record . . . [is] not to be considered as having

been so decided as to constitute precedent” (citation and punctuation

omitted)). For all these reasons, Appellant’s sentencing claim was

waived, and we decline to address it on the merits.

4. Finally, Appellant argues that the count charging him with

aggravated assault of Witherspoon should have merged with his

conviction for conspiracy to murder Witherspoon and Jones. But

Appellant was not convicted of conspiracy to murder Witherspoon

and Jones because the trial court merged that count for sentencing

30
purposes with the count charging him felony murder of Jones. 7

Thus, there was no conspiracy conviction into which the aggravated

assault of Witherspoon could have merged. And the aggravated

assault of Witherspoon could not have merged with the murder of a

different victim, namely, Jones. Cf. Davis v. State, 278 Ga. 305, 307

(3) (602 SE2d 563) (2004) (holding that the trial court erred in

merging two aggravated-assault counts together and that the court

should have instead imposed a sentence on the second aggravated-

assault count, where the first aggravated-assault count merged with

felony murder of a first victim and the second aggravated-assault

count concerned a second victim).

Judgment affirmed. All the Justices concur, except LaGrua, J.,
who concurs specially, and Land, J., not participating.

7 We take no position on whether or not this merger was correct because

it was not raised on appeal. See Dixon v. State, 302 Ga. 691, 696 (4) (808 SE2d
696) (2017) (noting that “we have the discretion to correct [a merger] error upon
our own initiative” when the error is “so clear and obvious that it comes to our
attention even without the help of any party” (emphasis added)).

31
LAGRUA, Justice, concurring specially, in part.

I concur fully in the judgment and in Divisions 1, 2, and 4.

I write separately because I would resolve on the merits the

claim raised in Division 3 — that Robinson waived his claim that

the trial court erred in imposing a consecutive sentence on Count 18

(possession of a firearm during the aggravated assault of Jones)

because it did not understand that it had discretion to impose a

concurrent sentence.

In Williams v. State, 306 Ga. 674, 677 (2019), we addressed the

same claim and held that “where a trial court rules in a particular

manner while erroneously believing that it lacks discretion to do

otherwise, that is error.” In Williams, we noted that “both the

prosecutor and Williams’s attorney told the trial court that the

sentence on Williams’s firearm possession conviction had to run

consecutively to some other sentence.” Id. Thus, it is clear that

Williams did not raise the issue below. Nevertheless, we addressed

the claim on the merits and determined that there was error because

the record contained “no evidence that the trial court understood its

32
obligations differently” than what it had been told by the prosecutor

and defense counsel. Id.

Robinson relies on Williams, which remains binding precedent.

Applying that precedent, I would address the merits of Robinson’s

claim. Having reviewed the sentencing proceedings and orders as a

whole, including the trial court’s entry of a modified sentence, see

Maj. Op. at 2 n.1, it appears that the trial court understood that it

had discretion to impose a concurrent sentence on Count 18.

Therefore, I would conclude that Robinson has failed to show that a

remand for resentencing on Count 18 is required.

33