Delevan v. State, A17A1998

• Decision Date: 21 February 2018
• Docket Number: A17A1998
• Citation: 811 S.E.2d 71
• Parties: DELEVAN v. The STATE.
• Court: Georgia Court of Appeals

345 Ga.App. 46

811 S.E.2d 71

DELEVAN

v.The STATE.

A17A1998

Court of Appeals of Georgia.

February 21, 2018

Reconsideration Denied March 8, 2018

David Edward Clark, for Appellant.

William Jeffrey Langley, Dist. Atty., Sidney Gene Landreau, Asst. Dist. Atty., for Appellee.

Reese, Judge.

A jury found Daniel Delevan guilty of driving under the influence ("DUI") and related offenses. After the trial court denied his motion for new trial, the Appellant failed to file a timely notice of appeal. His counsel subsequently filed a motion for an out-of-time appeal, which the trial court denied after conducting a hearing. On appeal from that order, the Appellant argues that the trial court erred in denying his motion because the failure to file a timely notice of appeal was not his fault, but was solely the result of his counsel’s ineffective assistance. For the reasons set forth, infra, we do not reach the merits of the Appellant’s arguments but, instead, vacate the trial court’s denial of the motion for an out-of-time appeal and remand this case to the trial court for further proceedings consistent with this opinion.

The record shows the following undisputed facts. The Appellant was convicted of DUI and other crimes in June 2016 and was sentenced to 36 months, to serve 180 days. The trial court granted the Appellant’s request for a supersedeas bond. David Clark, an attorney with the Appellate Division of the Georgia Public Defender Council ("GPDC"), timely filed a motion for new trial. Following a hearing, the court denied the motion for new trial on November 29, 2016. Neither Clark nor the Appellant filed a timely notice of appeal from that order.¹ As a result, on February 20, 2017, the State filed a motion asking the trial court to enforce the Appellant’s sentence.

Shortly thereafter, on March 2, 2017, Clark filed a motion for an out-of-time appeal on behalf of the Appellant. In the motion, Clark stated that he had drafted a notice of appeal on December 5, 2016, and had instructed his staff to mail it to the clerk’s office and to every party on the certificate of service. According to the motion, however, Clark had "just learn[ed] that the [trial court clerk] never received a copy of [the] notice of appeal." In the motion, Clark asserted that he and his office staff were at fault for the failure to timely file the notice of appeal; that such failure constituted "ineffective assistance of counsel per se "; and that, as a result, the Appellant was entitled to an out-of-time appeal.

The trial court conducted a hearing on the State’s motion to enforce the sentence and the Appellant’s motion for an out-of-time appeal.

During the hearing, the Appellant was represented by Michael Tarleton, an attorney who was also employed by the Appellate Division of the GPDC and worked in the same office as Clark.

Although Tarleton argued that Clark and unnamed GPDC Appellate Division staff members may have been responsible for the failure to file a timely notice of appeal,² Tarleton did not call Clark or any staff member as a witness to testify to the facts surrounding such failure. In response to Tarleton’s argument, the State contended that the Appellant had failed to meet his burden of presenting competent evidence to show that he did not "sleep[ ] on his rights" or otherwise contribute to the failure to timely file the notice of appeal and, as a result, he was not entitled to an out-of-time appeal.³

Tarleton then called the Appellant as a witness, and the Appellant testified that he went to the office of the clerk of the trial court in mid-December 2016 to get documentation that his DUI conviction was on appeal. The court clerk told the Appellant that a notice of appeal had not been filed in his case and that such notice had to be filed by December 29, 2016. According to the Appellant, when he left the clerk’s office, he called Clark’s office and left a voicemail message. The Appellant did not testify to any other efforts he made before the December 29 deadline to ensure that the notice of appeal was timely filed.

After considering the evidence and argument presented, the trial court ruled that, once the Appellant learned that no appeal had been filed, he was "asleep at the wheel" and, thus, was at least partly responsible for the failure to timely file the notice of appeal. Therefore, the court denied the Appellant’s motion for an out-of-time appeal and granted the State’s motion to enforce the Appellant’s sentence.

Clark then filed a timely notice of appeal from the court’s order on behalf of the Appellant. After the case was docketed in this Court, Clark filed an appellate brief, arguing that the trial court erred in denying the motion for an out-of-time appeal because it was "undisputed that Appellant received ineffective assistance of counsel due to his lawyer^{[4 ]} failing to file a timely notice of appeal."

For the following reasons, however, we do not reach the merits of the Appellant’s appeal, because it appears that both Clark and Tarleton should have been deemed disqualified from representing the Appellant after Clark’s ineffective assistance was asserted as the basis for the motion for an out-of-time appeal.

1. The Supreme Court of Georgia has repeatedly held that an attorney "may not ethically present a claim that [he] provided a client with ineffective assistance of counsel[.]"⁵ It necessarily follows that a claim of ineffective assistance of counsel may not be pursued unless the counsel at issue is no longer representing the defendant and, instead, the defendant either is represented by conflict-free counsel or represents himself pro se.⁶

One apparent reason behind this rule is that, in pursuing an ineffective assistance claim, the defendant has the burden of proving both his counsel’s deficient performance and prejudice that arose from such deficiency.⁷ To meet this burden, the defendant must present competent evidence, which usually means that the attorney at issue must be called to testify and defend against an assertion that his performance had been deficient.⁸

There is an inherent conflict, however, when counsel serves the dual roles of advocate and witness, and such a situation should be avoided, if possible.⁹ A lawyer who serves as both a witness and an advocate in the same proceeding "becomes more easily impeachable for interest and thus may be a less effective witness" and "is in the unseemly and ineffective position of arguing his [or her] own credibility."¹⁰

As shown above, in this case, Clark did not testify as a witness during the hearing on the motion for an out-of-time appeal. Instead, Tarleton, another appellate attorney with the GPDC, represented the Appellant during the hearing. Tarleton conceded that the notice of appeal had not been timely filed and argued that it could have been Clark, an employee, a postal worker, or the court clerk who was at fault. Regardless who else may have been at fault, however, a disputed, material issue of fact still remained, i.e., whether the Appellant slept on his appellate rights and contributed to the failure to timely file the notice.

Although the Appellant testified on that issue during the hearing, there appears to be a critical conflict between his testimony and Clark’s statements in the motion for an out-of-time appeal. As shown above, the Appellant testified that he called Clark’s office in mid-December 2016 and left a voicemail message telling Clark that no notice of appeal had been filed in his case. In contrast, in the motion for an out-of-time appeal, Clark specifically stated that he did not learn that a notice of appeal had not been filed until the State moved to enforce the Appellant’s sentence on February 20, 2017.¹¹ In fact, in the motion, Clark did not refer to any phone calls or messages he received from the Appellant during the time period between the court’s denial of the motion for a new trial in November 2016 and March 2, 2017, when he filed the motion.¹²

Given these apparent conflicts, Clark is a necessary witness on the "critical and disputed matter"¹³ at the center of this case, i.e., whether the Appellant contributed to the failure to timely file the notice of appeal. As stated in Comment 5 to Rule 3.7 of the Georgia Rules of Professional Conduct found in Bar Rule 4–102 (d) ("GRPC"), "if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer’s firm, [counsel’s] representation is improper."

Consequently, Clark should have been disqualified from representing the Appellant once his ineffective assistance was asserted as the basis for the motion for an out-of-time appeal. 2. It also appears that Tarleton was not authorized to represent the Appellant during the hearing on the motion for an out-of-time appeal. The record clearly shows that Clark and Tarleton are both employed by the Appellate Division of the GPDC and work out of the same office. Further, the fact that Tarleton did not call Clark as a witness to testify on the ineffective assistance claim during the motion hearing suggests that a conflict of interest may have existed between Tarleton’s loyalty to his client, the Appellant, and his office colleague, Clark.

"Regardless of whether an attorney has been appointed to act for the client or retained by the client, the client is entitled to fidelity from the attorney and every member of the attorney’s law firm."¹⁴ GRPC Rule 1.10 (a) states that, "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule[ ] 1.7: Conflict of Interest[.]"¹⁵ The Supreme Court of Georgia has construed this rule as follows:

Under a plain reading of Rule 1.10 (a) and the comments thereto, circuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit’s public

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