Boyette v. State, A95A0025
| Decision Date | 14 June 1995 |
| Docket Number | No. A95A0025,A95A0025 |
| Citation | 458 S.E.2d 397,217 Ga.App. 593 |
| Parties | BOYETTE v. The STATE. |
| Court | Georgia Court of Appeals |
Jill L. Anderson, Public Defender, Douglasville, Elizabeth A. Geoffroy, Decatur, for appellant.
David McDade, Dist. Atty., Douglasville, for appellee.
Boyette was charged with two counts of rape, aggravated sodomy and burglary. Following a hearing, the trial court determined Boyette was competent to stand trial. Represented by a public defender, Boyette entered a negotiated plea of guilty but mentally ill to one count of rape and burglary. He received the recommended sentences of life in prison for rape and 20 years concurrent for burglary. The appeal is from the order denying Boyette's motion to withdraw his plea of guilty.
1. Boyette challenges the trial court's refusal to appoint counsel not employed by the public defender's office to represent him at the hearing on his motion to withdraw the guilty plea. Relying on Ryan v. Thomas, 261 Ga. 661, 662, 409 S.E.2d 507 (1991), he argues that a conflict of interest required appointment of a private attorney to assert a claim of ineffective assistance of counsel by a member of the same office. He does not allege with any particularity how counsel was constitutionally ineffective with respect to entry of the plea, but merely states that another attorney would have more fully developed the factual basis supporting withdrawal of the plea. Appellant does not explain why the office which handled the plea cannot present its underlying factual basis or deficiencies. As to the particularities of ineffectiveness urged below, they relate primarily to the effectuation of the sentence, and the trial court properly resolved them.
There is no doubt that "[d]efense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial." Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). On the matter of appointed counsel, "[t]he choice ... is a matter governed by the trial court's sound exercise of discretion and will not be disturbed on appeal unless [that discretion is] abused." Davis v. State, 261 Ga. 221, 222, 403 S.E.2d 800 (1991).
Before the hearing on the motion to withdraw the plea, Boyette's counsel, a member of the public defender's office, alerted the court that she perceived a conflict of interest in asserting the ineffectiveness of a former colleague in the office and requested appointment of an independent attorney. The court heard argument and, relying on Jefferson v. State, 209 Ga.App. 859, 861-862, 434 S.E.2d 814 (1993), denied the request. In Jefferson, a pending ineffectiveness claim based on counsel's pretrial performance created no conflict of interest relevant to the issues addressed at sentencing. Accordingly, the court held there was no valid reason for Jefferson to discharge trial counsel and demand appointment of a different attorney for resentencing.
Neither Ryan nor the federal constitution, invoked by appellant, demands a different result in this case. The Supreme Court in Ryan addressed whether a defendant was procedurally barred from raising an effectiveness claim in a habeas corpus action when he had been represented at trial by a public defender, on motion for new trial by a second public defender, and on direct appeal by a third attorney, also a public defender in the same office, both of whom failed to complain of trial counsel. The court stated, "[I]t would not be reasonable to expect one member of a law firm to assert the ineffectiveness of another member," Ryan, supra at 662, 409 S.E.2d 507, and held that "attorneys in a public defender's office are to be treated as members of a law firm for purposes of raising claims of ineffective assistance of counsel." Id.
Unlike the public defender in Ryan, the public defender who negotiated Boyette's guilty plea was no longer employed by the public defender's office when the motion to withdraw the plea was heard. Secondly, on appeal to this court...
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Chatman v. Mancill, No. S05A1862.
...the office against charges of incompetency not applicable where attorney had departed the office). See also Boyette v. State, 217 Ga.App. 593(1), 458 S.E.2d 397 (1995) (affirming denial of defendant's request for counsel from outside public defender's office because attorney who represented......
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Barber v. State, A99A1606.
...shows that the plea was entered voluntarily and knowingly. Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987); Boyette v. State, 217 Ga.App. 593, 595(2), 458 S.E.2d 397 (1995); Morgan v. State, 191 Ga.App. 367(1), 381 S.E.2d 583 ...
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Thomas v. State, A98A1619.
...open court, with the assistance and advice of counsel, whose representation Thomas described as satisfying. See Boyette v. State, 217 Ga.App. 593, 595(2), 458 S.E.2d 397 (1995). At the motion hearing, a court-appointed psychologist testified that Thomas "was very articulate and well spoken,......