Herrington v. State, A04A0495.

• Decision Date: 05 February 2004
• Docket Number: No. A04A0495.,A04A0495.
• Citation: 265 Ga. App. 454,594 S.E.2d 682
• Parties: HERRINGTON v. The STATE.
• Court: Georgia Court of Appeals

594 S.E.2d 682

265 Ga. App. 454

HERRINGTON v. The STATE.

No. A04A0495.

Court of Appeals of Georgia.

February 5, 2004.

Randolph Frails, Augusta, for appellant.

Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

ELDRIDGE, Judge.

This is an appeal from the denial of an "extraordinary motion for new trial." The tortuous procedural journey by which the instant appeal comes to us bears recounting as background to an accurate resolution.

A Richmond County jury found Clifford Maurice Herrington guilty of two counts of armed robbery. On February 26, 1998, the Superior Court of Richmond County properly sentenced Herrington as a recidivist. On March 29, 2000, the judgment and sentence entered on the verdict were affirmed by this Court.¹ In so doing, we found that Herrington's claim concerning an alleged improper communication between the bailiff and the jury was waived for failure to object.² No allegation of ineffective assistance of counsel was raised in the trial court or in this Court, although Herrington was not represented on appeal by the same counsel who represented him at trial.

Herrington filed a petition for writ of habeas corpus in the Superior Court of Telfair County.³ In it, he alleged ineffective assistance of counsel at trial because his trial attorney failed to object to the purportedly improper communication between bailiff and jury; he also alleged ineffective assistance of appellate counsel for failure to raise in the trial court the above claim of ineffective assistance against his trial attorney. At the habeas evidentiary hearing, appellate counsel apparently testified that he considered raising a claim of ineffective assistance of trial counsel, but he was "reluctant" to make that type of accusation against a fellow attorney.

In resolving the "error" prong of the two-prong Strickland⁴ analysis, the habeas court found that Herrington received ineffective assistance of appellate counsel, because his appellate attorney erroneously failed to raise the above claim of ineffectiveness against trial counsel. The next step under Strickland should have been a decision on the "prejudice" prong. This would have required the habeas court to determine whether appellate counsel's failure to raise an ineffectiveness claim against Herrington's trial attorney for not objecting to the bailiff/jury communication "was a reasonable tactical move which any competent attorney in the same situation would have made."⁵ Such decision must necessarily turn, inter alia, on whether the contention of "improper communication" had actual merit, since trial counsel would not be ineffective for failing to raise a meritless objection ⁶ and, a fortiori, appellate counsel would not be ineffective for failing to call him to task on that issue. The habeas court, however, did not undertake this analysis. Instead, that court established a new standard; the habeas court concluded that, if there is sufficient evidence of record to raise a claim against trial counsel, appellate counsel should have raised it—regardless of its merits:

Although this Court is not making a finding as to trial counsels' alleged ineffectiveness, this Court does find that there was sufficient evidence in the record for Petitioner's appellate counsel to raise such a claim on direct appeal [and] the Court of Appeals was unable to consider the merits of Petitioner's claims and the Petitioner was not afforded the opportunity for an evidentiary hearing on these claims.

In furtherance of this finding, the habeas court fashioned its own remedy; that court remanded Herrington's case to the trial court, i.e., Richmond County Superior Court, and ordered that Herrington be granted an "extraordinary motion for new trial" so that the trial court, rather than the habeas court, could make a "determination of whether the Petitioner's trial counsel rendered ineffective assistance of counsel." And, ostensibly, this Court would then review his claims.

Herrington filed his extraordinary motion for new trial, alleging ineffectiveness against his trial attorney for failing to object to the bailiff/jury communication. On January 16, 2003, the Richmond County trial court entered an order "Denying Extraordinary Motion for New Trial," finding that "defendant's trial counsel was not ineffective and was in fact capable and competent in the manner in which he represented the defendant."

Thereafter, in this Court, Herrington filed an untimely notice of direct appeal from the order denying his extraordinary motion for new trial, which appeal was dismissed for lack of jurisdiction. He next filed a motion for "out-of-time appeal" with regard to the denial of his extraordinary motion for new trial. On October 8, 2003, the trial court granted the motion for out-of-time appeal. Herrington timely filed a notice of direct appeal in this Court on October 16, 2003. His notice states that he "appeals to the Court of Appeals from the judgment of conviction and sentence entered herein on February 26, 1998." Held:

"It is always the duty of a court to inquire into its jurisdiction, upon its own motion where there is doubt."⁷ The procedural history of this case appears so fraught with error that substantial doubt is engendered. And, in fact, there are several grounds upon which we could cursorily dismiss this appeal. For one, a direct appeal to this Court will not lie from the denial of an "extraordinary motion for new trial" when separate from an original appeal.⁸ Another, the trial court's grant of an out-of-time appeal was improper, since it is a remedy available only to a criminal defendant whose conviction has not been reviewed by an appellate court on direct appeal, and Herrington "is not entitled to another bite at the apple by way of a second appeal."⁹ And another, a claim of ineffective assistance of trial counsel cannot form the basis for an "extraordinary motion for new trial" when, as here, such claim could have been raised earlier; in such an instance, a petition for writ of habeas corpus is "the exclusive post-appeal procedure available."¹⁰ This Court, however, takes very seriously its mandate "to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein."¹¹ For this reason, the appellate courts of this State follow "an elementary rule of pleading that substance, not mere nomenclature, controls" when engaging in jurisdictional review.¹² The application of such "elementary rule" reaches its ethical zenith when, as it appears here, errors abound that could preclude appellate review—through no fault of the appellant. In such instance, extra care must be taken. And our jurisdictional review considers content and context to determine what lies before us.

The Telfair County habeas court had no authority to remand to the Richmond County trial court to consider an ineffectiveness of counsel claim.¹³ Moreover, the Superior Court of Telfair County had no jurisdiction to order the grant of an "extraordinary motion for new trial" in the Superior Court of Richmond County.¹⁴ Thus, the habeas court's final order transferring Herrington's ineffective assistance of counsel claims to Richmond County "was void ab initio as an unauthorized exercise of authority."¹⁵

The Richmond County trial court's review of Herrington's claims against his trial attorney is, in effect, the second prong of the Strickland analysis that the Telfair County habeas court should have performed on Herrington's claims of ineffective counsel at trial and on appeal.

[T]he habeas corpus court is the appropriate judicial entity to consider both the ineffective assistance of counsel claim and the underlying and connected trial error, and to determine whether the habeas corpus petitioner is entitled to a new trial. When the issue is one that could not have been raised in the prior, perfected direct appeal, i.e., ineffective assistance of appellate counsel, a petition for Writ of Habeas Corpus is the proper vehicle to utilize for the development of a record and subsequent review of the substantive claim.¹⁶

The soundness of this "one court decides all" approach is sharply illustrated in this case. Here, the trial court concluded that Herrington's ineffectiveness claim against his trial attorney was completely meritless; this finding invalidates the habeas court's determination that appellate counsel was ineffective for failing to level such claim. It is axiomatic that the "[f]ailure to make a meritless objection cannot be evidence of ineffective assistance of counsel."¹⁷

Because of the actions of the Telfair County habeas court in transferring the claims contained in Herrington's petition for writ of habeas corpus for resolution in the trial court, that court's order finding Herrington's trial attorney effective and denying the "extraordinary motion for new trial" is, essentially, the final determination of Herrington's habeas claims alleging ineffectiveness of counsel at trial and on appeal. Thus,

[Herrington's] extraordinary motion for new trial must be [considered] as a petition for a writ of habeas corpus.¹⁸

The Supreme Court of Georgia has exclusive jurisdiction over habeas cases.¹⁹ To further complicate matters, however, the Richmond County trial court was without subject matter jurisdiction to entertain Herrington's habeas claim.²⁰ Thus, the trial court's order on Herrington's "extraordinary motion for new trial"/habeas petition is a nullity and void,²¹ and we cannot simply transfer the instant case to the Supreme Court to consider the grant of a certificate of probable cause.²²

So, albeit not for the cursory reasons manifest at first glance, we must, in fact, dismiss this appeal for lack of subject matter jurisdiction. But to what end? Since the Telfair County habeas court's order transferring Herrington's habeas claims of ineffective assistance of counsel to the Richmond...