Ex parte Jackson

• Citation: 598 So.2d 895
• Parties: Ex parte Carlos Dewayne JACKSON. (Re Carlos Dewayne Jackson v. State). 1901438.
• Decision Date: 08 May 1992
• Court: Alabama Supreme Court

Page 895

598 So.2d 895

Ex parte Carlos Dewayne JACKSON (Re Carlos Dewayne Jackson v. State).

1901438.

Supreme Court of Alabama.

May 8, 1992.

W. Gary Hooks, Jr., Mobile, for petitioner.

James H. Evans, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for respondent.

ON APPLICATIONS FOR REHEARING

HORNSBY, Chief Justice.

The opinion of February 28, 1992, is withdrawn and the following is substituted therefor.

Carlos Dewayne Jackson was convicted on September 21, 1990, of first degree robbery and attempted murder. He was represented at trial and through sentencing by appointed counsel. At sentencing on October 30, 1990, and upon the request of appointed counsel, another attorney was appointed to represent Jackson on appeal. The 30-day period allowed for filing a motion for a new trial expired on November 29, 1990. Neither trial nor appellate counsel filed a motion for a new trial, and appellate counsel did not request an extension of time to file such a motion. The reporter's transcript was not completed and certified until December 25, 1990.

The Court of Criminal Appeals, in an unpublished memorandum, 579 So.2d 711, relying on its earlier decision in Dossey v. State, 489 So.2d 662 (Ala.Crim.App.1986), affirmed the judgment and held that Jackson's claim of ineffective assistance of counsel was procedurally barred because he had failed to raise the issue in the trial court by motion for new trial or otherwise. In Dossey, the Court of Criminal Appeals had stated, " ' "[C]laims of inadequate representation cannot be determined on direct appeal where such claims were not raised before the ... [trial] court and there has been no opportunity to develop and include in the record evidence bearing on the merits of the allegations." ' " 489 So.2d at 666 (quoting United States v. Barham, 666 F.2d 521, 524 (11th Cir.), cert. denied, 456 U.S. 947, 102 S.Ct. 2015, 72 L.Ed.2d 470 (1982)).

Jackson contends that when appointed trial counsel and appointed appellate counsel differ, and appellate counsel is required to present any ineffective-assistance-of-counsel claim to the trial court by motion for a new trial, and is required to do so before the reporter's transcript is available, it is a denial of procedural due process for the appellate court to treat the failure to present the ineffective-assistance-of-counsel claim at trial as a procedural bar to the presentation of the claim on appeal. We granted Jackson's petition for a writ of certiorari to address this issue, and we now affirm.

Initially, we reaffirm the principle that " 'claims of ineffective assistance of counsel may not be considered for the first time on direct appeal.' " Jackson v. State, 534 So.2d 689, 692 (Ala.Crim.App.1988) (quoting United States v. Stitzer, 785 F.2d 1506, 1520 (11th Cir.), cert. denied, Perna v. United States, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986)). The rationale for this rule has been explained in the following manner:

" 'Because the issue was not presented to the district court, the record on appeal is necessarily inadequate to determine the merits of the allegations on that issue at the appellate level. From such references should not be drawn an implication that a particular record on appeal would warrant the appellate court in finding either effective or ineffective assistance of counsel. It is facts bearing on the precise issue that are needed and obtainable only after presentation to and determination by the district court.

" 'Moreover, once the record on appeal is plumbed for facts bearing on the issue, the damage to the judicial process is done. An election to decide whether the record on appeal is adequate for decision on the issue not only adds to the burgeoning workload of appellate judges in a particular case, but makes a mockery of the repeated statement that the issue may not be presented for the first time on appeal.

" 'To preclude, unequivocally and without cavil, presentation of the issue for the first time on appeal is not to deny the convicted an opportunity to present it. The rule does not deny presentation, it merely locates it.' "

Jackson v. State, 534 So.2d 689, 692 (Ala.Crim.App.1988) (quoting United States v. Griffin, 699 F.2d 1102, 1108-09 (11th Cir.1983)).

In light of this rationale, we will not make exception to the rule that a claim of ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court. We encourage counsel, whenever possible, to ascertain any possible defect in the trial process and to make an issue of that defect in an appropriate motion for a new trial. Failure to include a reasonably ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings.

We recognize that when an attorney is appointed to represent a defendant on appeal, it is unlikely that the reporter's transcript will be made available to him before the 30-day period within which to file a motion for a new trial has expired. Although some grounds for a new trial may be discovered in the absence of a transcript, the absence of a transcript may prevent appointed appellate counsel from ascertaining all of the grounds to support a motion for a new trial. Therefore, we hold that if the trial court appoints new counsel to represent the defendant on appeal, the trial court shall note that fact on the case action summary sheet, and shall also note that the time within which to file a motion for a new trial is extended in such case, provided the following occurs: If newly appointed counsel files a motion with the court within 14 days after his appointment, requesting that the running of the time within which to file a motion for a new trial be suspended until such time as the reporter's transcript is prepared and filed, then in that event, the 30-day period within which to file a motion for...