The State of Georgia is appealing a ruling in favor of a woman sentenced in a Bulloch County Superior Court case to 10 years in prison for failing to seek medical attention for her badly injured child, whom she was feeding dog food, according to testimony.

The case will be heard Monday.

The woman, Esther Primack, first pled guilty to the charge, but filed a “writ of habeus corpus,” which allows prisoners already convicted to challenge the conviction, according to information from Jane Hansen, Georgia Supreme Court public information officer.

Primack claims she did not understand court proceedings and terminology when she entered a guilty plea Nov. 12, 2012, four months after she was arrested for failing to seek medical help for her 4-year-old daughter after her boyfriend, Jerome Swan, broke the child’s leg, Hansen said in a summary released this week.

In May 2012, witnesses saw Primack, 23, “pushing her 4-year-old daughter in a stroller” and noticed the girl “appeared to be in significant pain.” They called police after Primack refused to let them take her to the hospital.

Officers responded to the Deluxe Inn, where Primack and Swan were staying with the victim and the couple’s younger child.

“Officers discovered the child lying on the bed in obvious pain,” Hansen said in a summary released to media. “A detective testified the little girl’s leg was severally mangled and swollen, and she was unable to hold her leg out straight.”

The child was taken to a hospital, “where she had surgery and was placed in a body cast,” according to the summary. “Investigators later determined that Swan had thrown the child on the ground and broken her leg.”

A Bulloch County Foster Care case manager told the court the child’s “teeth were brown and had holes in them, and she required 10 procedures for gum infections and numerous cavities,” Hansen said. “According to testimony, Primack had been feeding (her daughter) dog food, and the child did not appear bonded to her mother.”

Primack was indicted by a grand jury on July 9, 2012 on one count of cruelty to children in the second degree.

Swan was charged with aggravated assault and first-degree child cruelty for allegedly breaking the little girl’s leg and allowing her to suffer.

When Primack pled guilty in Nov. 20, 2012, she entered a “non-negotiated” guilty plea, where “a defendant pleads guilty without an agreement from the prosecutor regarding the recommended sentence,” the summary read. She was then sentenced to the maximum of 10 years in prison.

But Primack retained a new lawyer and “filed a motion to modify the plea but the trial court denied it,” Hansen said. 

Primack claimed she had misunderstood the charges and asked a judge what criminal negligence meant, but even though the judge answered her, he never made sure she understood.

She “argued her trial attorney rendered ‘ineffective assistance of counsel’ for failing to do several things, including failing to present evidence that Swan had also abused her and she was the victim of Battered Persons Syndrome,” according to the summary. “Primack also argued her guilty plea had been ‘unknowingly and involuntarily’ entered, as she did not understand the ‘criminal negligence’ element of the charge to which she pled.”

The habeas court ruled in her favor and threw out her guilty plea. The state is now appealing to the Georgia Supreme Court and “attorneys with the Attorney General’s office argue the habeas court erred by granting relief to Primack,”Hansen said.

Primack “did not prove she was prejudiced by counsel’s failure to introduce evidence that (she) was suffering from Battered Persons Syndrome in mitigation at the plea hearing”

She also knowingly entered a guilty plea even if she did not understand the charge, according to the summary.

The State argues Primak’s claims are invalid and that the habeus court was incorrect in ruling Primak sufficiently proved her plea attorney’s performance was deficient, Hansen stated.

Primak also said she entered a guilty plea under the assumption a judge would give her a lesser sentence than the maximum if she pled instead of going to trial, according to the summary.

Herald reporter Holli Deal Saxon may be reached at (912) 489-9414.