Maxwell v. State

• Decision Date: 17 November 1992
• Docket Number: No. S92A0763,S92A0763
• Citation: 422 S.E.2d 543,262 Ga. 541
• Parties: MAXWELL v. The STATE.
• Court: Georgia Supreme Court

Page 543

422 S.E.2d 543

262 Ga. 541

MAXWELL v. The STATE.

No. S92A0763.

Supreme Court of Georgia.

Nov. 17, 1992.

C. Jackson Burch, Savannah, for Robert Maxwell.

Spencer Lawton, Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen. Atlanta, George R. Asinc, Asst. Dist. Atty., Savannah, Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

C.A. Benjamin Woolf, Asst. Atty. Gen., Atty. Gen.'s Office, Atlanta, Attorney Register.

SEARS-COLLINS, Justice.

Robert Maxwell appeals from his conviction of the murder of James T. Fagan. ¹

1. Considering the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found Maxwell guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Maxwell enumerates several alleged errors in the charge to the jury. However, when the court asked for objections to the jury charge, Maxwell did not object to any of the charges he presently seeks to assert as error nor did he reserve the right to enunciate objections to the charge at a later date. Instead, Maxwell objected only concerning a felony murder charge that he contended had been given by the court. As a result, any other alleged errors in the charge have been waived. Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982).

3. Following Maxwell's conviction, his trial counsel filed a motion for new trial on his behalf. However, after the trial court denied the motion, trial counsel did not pursue an appeal. Maxwell subsequently filed a pro se motion for out-of-time appeal, which the trial court granted. The court also appointed Maxwell a new attorney for appeal. On appeal, appellate counsel raises the issue of the effectiveness of trial counsel for the first time. We thus must consider whether, in the context of this out-of-time appeal, Maxwell raised his claim of ineffectiveness of counsel at the earliest practicable moment so as to preserve the issue for review. Ponder v. State, 260 Ga. 840(1), 400 S.E.2d 922 (1991). For the following reasons, we conclude that he did not, but we also conclude that, under the circumstances of this case, we should remand the case to the trial court for a hearing on Maxwell's ineffectiveness claim.

In Ponder we held that the grant of an out-of-time appeal

should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal ... [and] constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. [Id. at 841.]

We concluded that Ponder could have filed a motion for new trial following the grant of his out-of-time appeal, and we announced a rule that a claim of ineffective assistance of trial counsel may not be asserted in an out-of-time appeal unless the defendant's new appellate counsel files a motion for new trial after the grant of the out-of-time appeal and raises the ineffectiveness claim. Id. at 840-841, 400 S.E.2d 922. Ponder, however, is different from Maxwell's case in one respect, which is that Ponder did not file a motion for new trial following his conviction, whereas Maxwell did. The question, then, is whether the fact that Maxwell had filed one motion for new trial prohibited him from filing another motion for new trial after the grant of his out-of-time appeal. We conclude that it did not, on the ground that the rationale of Ponder is that the grant of an out-of-time appeal permits a defendant, by the grace of the court, to start the post-conviction process anew. ² We thus rule that a defendant who has had one motion for new trial may file a second motion for new trial within 30 days after the grant of an out-of-time appeal. This rule is limited, however, by the trial court's discretion to refuse to reopen issues that it decided in the first motion for new trial. See Bradley v. Tattnall Bank, 170 Ga.App. 821, 822-824(1), 318 S.E.2d 657 (1984).

Under the foregoing reasoning, the failure of Maxwell's appellate counsel to file a motion for new trial raising the claim of ineffectiveness of trial counsel would bar review of that claim. However, because the rule we announce today is an extension of current law, it would be unfair to deny Maxwell an opportunity to raise his ineffectiveness claim. Ponder, supra, 260 Ga. at 842(2), 400 S.E.2d 922. We therefore remand this appeal to the trial court for it to hear Maxwell's claim of ineffectiveness of trial counsel.

Judgment affirmed and case remanded.

CLARKE, C.J., BELL, P.J., and HUNT and BENHAM, JJ., concur.

FLETCHER, J., concurs specially as to Div. 3.

FLETCHER, Justice, concurring specially as to Division 3.

While I concur with the result of Division 3 of the majority opinion: remand of the case to the trial court for a hearing on Maxwell's claim of ineffective assistance of trial counsel, I write separately to express my disagreement with the majority's creation of a procedure giving rise to a second motion for new trial. I also write to express my concern with a line of cases that this court strayed into during the late 1980's and that has led to the creation of a confusing tangle of procedural rules regarding when to assert a claim of ineffective assistance of trial counsel.

In 1987, this court decided Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987) and for the first time announced that a claim for ineffective assistance of trial counsel "will be deemed waived" if appellate counsel files an amended motion for new trial and does not raise the issue there. Since Thompson, we have spoken too often in terms of an act or failure to act by an appellant's appellate counsel ¹ resulting in waiver of an appellant's right to assert a claim of ineffective assistance of trial counsel. Today, the rule set forth in Division 3 of the majority opinion concerning a second motion for new trial adds to that incredible tangle of special rules of procedure that apply when such...