ATLANTA -- The Georgia Supreme Court has upheld a lower court's ruling against a Mitchell County woman who pleaded guilty in 1998 to having sex with her sons.
The crux of Holly Cox's appeal was she had been denied effective assistance of counsel by her trial attorney who, at the time she was considering entering into a plea bargain, advised her she would only have to spend 10 years in prison before she became eligible for parole. That was incorrect, according to a release from the court.
Under state law, she would have had to spend 30 years behind bars before she was eligible for parole. She later claimed that had she known, she never would have pleaded guilty and instead would have gone to trial, the release said.
Cox was married to Dennis Cox and had two sons by a previous marriage. Dennis Cox was city manager of Camilla when he and his wife were arrested after the mayor tipped off police, who found pornographic files on Dennis Cox's City Hall computer and in the couple's home. In 1998, a Mitchell County grand jury charged them in a 37-count indictment with performing various sexual acts on Holly Cox's sons, who were 13 and 15 at the time of the arrests. The couple recorded the acts and distributed them on the Internet, the state accused.
In 1998, Holly Cox pleaded guilty to charges of aggravated child molestation, child molestation and incest and was sentenced to serve 30 years in prison for the first charge, plus 20 years for the second and 10 years for the third, which would be served concurrently with the other two. She agreed to plead guilty after her attorney and the trial judge told her she would be eligible for parole after serving 10 years, the release states.
Under Official Code of Georgia -:- 17-10-6.1, the General Assembly had designated aggravated child molestation as a serious violent felony and any "sentence imposed for the first conviction of any serious violent felony ... shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release ..."
In 2008, after she had been in prison 10 years, Holly Cox filed a petition for a writ of habeas corpus -- a civil proceeding available to already convicted prisoners giving them the opportunity to challenge their case on constitutional grounds in the county where they're incarcerated. Habeas cases are generally brought against the warden of the prison, who in this case was Tony Howerton.
She contended among other things that she had received "ineffective assistance of counsel" in violation of her constitutional rights. The habeas court denied her relief, and she appealed to the state Supreme Court. The Court ruled in 2010 that the habeas court erred in finding that Cox's attorney had not performed deficiently by giving her the wrong information, and it sent the case back to determine -- whether as a result of the deficiency -- there was a "reasonable probability" she would have pleaded differently had she been given the correct information, the release said.
In the opinion released Monday, Justice Robert Benham points out the habeas court made a number of findings, including that Cox did not place "particular emphasis" on parole concerns during her plea hearing, that there was overwhelming evidence of her guilt and that she "assumed the risk of receiving a sentence of extended duration when she entered a guilty plea without an agreement of a sentence to be recommended by the state."
"There being evidence to support the factual findings made by the habeas court and the legal conclusions drawn by the habeas court being sound, we affirm its determination that Cox failed to establish the prejudice prong of the Strickland test for ineffective assistance of counsel, and its judgment that the Cox's petition for a writ of habeas corpus be denied," Benham wrote.
In a concurrence, Justice Harold Melton writes he agrees with the ruling, but emphasized "the trial court soundly concluded that there was no reasonable probability that Cox would not have pled guilty and insisted on going to trial."
"Cox, in fact, confessed to a GBI (Georgia Bureau of Investigation) agent that she had engaged in sexual intercourse and oral sex with both of her sons," Melton wrote. "Cox and her husband took photos of these acts, distributed them on the Internet, and kept photo albums in their bedroom. Given Cox's confession to the acts forming the basis of the charges against her, the evidence clearly supports the trial court's conclusion that Cox would have ultimately pled guilty to the charges in spite of her counsel's error regarding her eligibility for parole."
Chief Justice Carol Hunstein and Presiding Justice George Carley joined in the concurrence.