Hopkins v. Hopper

• Decision Date: 22 April 1975
• Docket Number: No. 29760,29760
• Citation: 215 S.E.2d 241,234 Ga. 236
• Parties: Charles Lee HOPKINS v. Joe S. HOPPER.
• Court: Georgia Supreme Court

Page 241

215 S.E.2d 241

234 Ga. 236

Charles Lee HOPKINS v. Joe S. HOPPER.

No. 29760.

Supreme Court of Georgia.

April 22, 1975.

Charles Lee Hopkins, pro se.

Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

NICHOLS, Chief Justice.

This appeal is taken from an order denying habeas corpus relief. Petitioner is presently confined pursuant to a life sentence imposed upon a murder conviction rendered March 3, 1966, in the Superior Court of Sumter County. The allegations of the habeas petition raised issues pertaining to systematic exclusion of Negroes from Sumter County grand and traverse juries, ineffective assistance of counsel at trial, a coerced unsworn statement, pronouncement of the sentence not in petitioner's presence, the constitutionality of a life sentence, denial of a motion for change of venue, and denial of petitioner's right to appeal his conviction. After a hearing, the habeas court found against appellant on each issue raised and entered an order denying relief. This appeal concerns only the issues relating to the denial of petitioner's motion for change of venue in the convicting court, the denial of his right to appeal the conviction, and the denial of his right to counsel in the habeas proceedings.

1. 'The petitioner is not entitled as a matter of right to appointed counsel in a state habeas corpus proceeding. Griffin v. Smith, 228 Ga. 177(3), 184 S.E.2d 459.' Chatman v. Caldwell, 229 Ga. 337(2), 191 S.E.2d 63. See also Grace v. Caldwell, 231 Ga. 407(3), 202 S.E.2d 49; Sims v. Caldwell, 231 Ga. 377(1), 202 S.E.2d 70.

2. Petitioner alleged the existence of considerable publicity and racial hostility in Sumter County at the time of his trial. He contends that the trial court's denial of his motion for change of venue deprived him of his constitutional right to due process.

Pretermitting the question of whether this issue is cognizable in habeas corpus proceedings, the evidence fails to sustain petitioner's contention. The transcript of the trial court's hearing on the motion for change of venue was included in the habeas record. However, neither in the trial court nor in the habeas proceedings was any effort made to show, under Ga.L.1972, pp. 536-37 (Code Ann. § 27-1201), that an impartial jury could not be obtained in Sumter County. There was no evidence to show that any juror 'had formed such a fixed and unchangeable opinion as to the guilt or innocence of the defendant as would yield readily to the testimony.' Thacker v. State, 226 Ga. 170, 174(2), 173 S.E.2d 186, 190. See also McCrary v. State, 229 Ga. 733(1), 194 S.E.2d 480; Dutton v. State, 228 Ga. 850(2), 188 S.E.2d 794. It cannot be said, therefore, that the trial court abused its discretion in denying the motion for change of venue. Accordingly, the finding of the habeas court will not be disturbed.

3. Petitioner contends that he was denied his right to effective assistance of counsel by virtue of his retained counsel's failure to pursue an appeal. He testified at the habeas hearing that he told counsel to pursue an appeal and that counsel informed him that he would do so. The habeas record shows that in June, 1966, while petitioner's motion for new trial was pending, counsel sent him a letter relating to his mother's failure to make payments on the attorney fees and which stated that '(u)nless you are able to encourage her to make some effort at regularly paying this money, it may require that I withdraw from your case as your attorney.' On August 23, 1966, the trial court issued an order which recited that counsel 'having moved to dismiss the motion for new trial and that he abandon his appeal in said case; it is hereby ordered that said motion for a new trial is hereby dismissed and motion to dismiss is granted.' Petitioner testified that no one informed him that counsel would need more money in order to handle the appeal and that if counsel had tole him that he would not take the appeal, he would have tried to obtain other counsel. Counsel testified by way of deposition that an examination of the case file suggested that the reason he asked for dismissal of the motion for new trial was that petitioner's mother had failed to make any of the agreed payments. He interpreted the above-quoted recital in the trial court's order as a 'determination by me to withdraw as attorney in this matter.'

It is settled that an indigent must be furnished counsel at every critical stage of criminal proceedings, including appeal. Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683. Where a defendant is represented by appointed counsel, he is denied his right to appeal if appointed counsel fails to fully inform him of his appellate rights. Thornton v. Ault, supra. The Thornton decision recognized, however, that where a defendant is represented by retained counsel at trial, it must be made known to the trial court or some responsible state official that the defendant is indigent and cannot afford retained counsel to pursue an appeal. If the trial court has no reason to believe that the defendant is indigent and cannot...