Andrews v. State, S04G1070.

• Decision Date: 10 January 2005
• Docket Number: No. S04G1070.,S04G1070.
• Citation: 278 Ga. 854,607 S.E.2d 543
• Parties: ANDREWS v. The STATE.
• Court: Georgia Supreme Court

607 S.E.2d 543

278 Ga. 854

ANDREWS v. The STATE.

No. S04G1070.

Supreme Court of Georgia.

January 10, 2005.

W. Wright Gammon, Jr., Gammon & Anderson, Cedartown, for Appellant.

Herbert E. Franklin Jr., Dist. Atty., Leonard Charles Gregor, Jr., Asst. Dist. Atty., for Appellee.

SEARS, Presiding Justice.

The appellant, William Andrews, filed a habeas corpus petition, contending that he was entitled to an out-of-time appeal and that he had received ineffective assistance of trial counsel. After a hearing at which Andrews's trial counsel testified regarding the foregoing issues, the habeas court granted Andrews an out-of-time appeal on the ground that his trial counsel was not notified of the trial court's order denying his motion for new trial. The habeas court, however, did not address Andrews's ineffectiveness claim. Without filing a second motion for new trial, Andrews filed a notice of appeal in the trial court in which he was convicted and appealed to the Court of Appeals. On appeal, he contended, among other things, that he had received ineffective assistance of trial counsel. The Court of Appeals held that the claim was procedurally barred because Andrews did not assert the claim in a second motion for new trial.¹ We granted certiorari to consider whether a second motion for new trial was required in view of the fact the habeas court held a hearing on Andrews's ineffectiveness claim. We conclude that a second motion for new trial was required, and thus affirm the Court of Appeals's judgment.

Andrews contends, among other things, that he fully litigated his ineffectiveness claim in the habeas court and that, for this reason, the Court of Appeals erred in ruling that he should have filed a motion for new trial in the trial court and again raised the issue of ineffective assistance of trial counsel.² We disagree, concluding that, under the rationale of Ponder v. State³ and Maxwell v. State,⁴ we must resolve this issue adversely to Andrews.

In Ponder, Ponder sought an out-of-time appeal in a habeas corpus action. The habeas court determined that Ponder was entitled to an out-of-time appeal, and directed Ponder to pursue his post-conviction remedies within thirty days. Ponder was appointed counsel to represent him on appeal, and Ponder filed a notice of appeal. Ponder, however, did not file a motion for new trial, and on appeal, he contended that he had received ineffective assistance of trial counsel. We held that, to preserve the ineffectiveness claim for appeal, a habeas petitioner who is granted an out-of-time appeal must file a motion for new trial following the grant of the out-of-time appeal. We reasoned that this holding would have the benefit of placing habeas petitioners on equal footing with a defendant who is granted an out-of-time appeal from a trial court and of having the judge who tried the case resolve the issue of trial counsel's effectiveness.⁵

We continue to conclude that Ponder offers sound reasons to require a habeas petitioner who obtains an out-of-time appeal to litigate his ineffectiveness claim in the trial court. First, a habeas petitioner who raises an ineffectiveness claim after the grant of an out-of-time appeal should be placed "in the same posture with the same rights as a defendant who is successful in seeking an out-of-time appeal from the trial court."⁶ In this regard, as we noted in Ponder, a habeas petitioner does not have a right to counsel to assist with his ineffectiveness claim and thus is at a significant disadvantage to a defendant who is granted an out-of-time appeal from the trial court and thus has the right to the benefit of counsel.⁷ Another disadvantage for the habeas petitioner who litigates his ineffectiveness claim in the habeas court concerns non-constitutional errors that the petitioner may desire to raise. Because a habeas court does not have jurisdiction to address non-constitutional issues,⁸ a habeas petitioner may not raise such issues before proceeding to an appellate court with his direct appeal. On the other hand, a defendant who litigates his ineffectiveness claim in the trial court is entitled to have the trial court exercise its discretion concerning whether any non-constitutional errors merit a new trial.

In addition, the rule established by Ponder has the salutary effect of having the ineffectiveness claim decided by the trial court that presided over the trial.⁹

Furthermore, the rule urged by Andrews, which would permit the habeas court to grant an out-of-time appeal and then to rule on an ineffectiveness claim, could lead to practical difficulties. For example, a defendant will have to file a notice of appeal in and obtain records from two courts — the trial court that conducted his trial and the habeas court that ruled on his ineffectiveness claim. In this regard, in this case, Andrews did not obtain his habeas transcript to support his ineffectiveness claim until several months after the appeal from the trial court was docketed in the Court of Appeals, and even then, Andrews did not ever make the pleadings from the habeas court a part of the appellate record. Moreover, if the appeal from one court is docketed before the appeal from the second court, the parties and the courts will have to coordinate the filings and dispositions of two appeals.

In summary, for the foregoing reasons, Ponder correctly decided that a habeas petitioner...