McClure v. Hopper

• Court: Georgia Supreme Court
• Writing for the Court: HILL
• Citation: McClure v. Hopper, 214 S.E.2d 503, 234 Ga. 45 (Ga. 1975)
• Decision Date: 17 March 1975
• Docket Number: No. 29497,29497
• Parties: Frank H. McCLURE v. Joe S. HOPPER.

Page 503

214 S.E.2d 503

234 Ga. 45

Frank H. McCLURE v. Joe S. HOPPER.

No. 29497.

Supreme Court of Georgia.

March 17, 1975.

Rehearing Denied March 27, 1975.

Frank H. McClure, pro se.

Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HILL, Justice.

Frank H. McClure appeals from the denial of his petition for the writ of habeas corpus by the Superior Court of Tattnall County.

The appellant is currently serving a twelve year sentence for burglary imposed after a jury trial on October 25, 1973, in Lincoln County Superior Court. Appellant had been arrested on December 2, 1972, in Lincoln County inside the store he was charged with entering. On December 10, 1972, appellant was sentenced to ten years imprisonment after pleading guilty in McDuffie Superior Court to the charge of burglary occurring in Lincoln County. On July 2, 1973, he was granted habeas corpus relief (herein identified as the first habeas corpus order) by the Superior Court of Butts County on the ground that at the time of his guilty plea in McDuffie Superior Court he had not waived in writing his right to be indicted by a grand jury. Pursuant to that order appellant was returned to Lincoln County where, after indictment, he elected to plead not guilty and requested a jury trial on the burglary charge. The jury found him guilty on October 25, 1973, and sentenced him to twelve years.

On February 27, 1974, the appellant filed the instant habeas corpus petition (herein identified as the second habeas corpus petition) raising, in essence, the following contentions: that he was denied the right to appeal the 1973 burglary conviction in Lincoln County; that he was denied sufficient time to appeal the first habeas corpus order which remanded his case for indictment and trial; that it was error for the trial court to appoint the same attorney to represent him upon his jury trial who had represented him at the time of his plea of guilty, thereby denying him the effective assistance of counsel; that it was double jeopardy after his guilty plea to be tried for the same offense; that the sentence he received upon the jury trial was illegal because it was greater than that he had first received; and that he was denied his right to a preliminary hearing. By motion he requested that an attorney be appointed to represent him in the presentation of his second petition for habeas corpus.

Following a hearing on May 22, 1974, the Tattnall Superior Court denied the relief sought in the second habeas corpus petition and that ruling is here appealed.

1. The allegation that appellant should have been afforded an opportunity to appeal the first habeas corpus order of July 2, 1973, which granted him relief from his guilty plea and sentence, is without merit. According to his second habeas petition, the issues raised in the first habeas petition had been the absence of indictment, lack of jurisdiction by the McDuffie Superior court, lack of a commitment hearing and recent appointment of counsel prior to entry of the guilty plea. This last issue became moot when appellant was granted habeas relief on the first two grounds. The matter of the commitment hearing is considered below.

Moreover, the facts show that appellant was not returned from Butts to Lincoln County for more than 30 days following the first habeas order. Thus, appellant was not denied the right to appeal that order.

2. The record shows that the appellant was arrested December 2, 1972, was at that time on escape from North Carolina, pled guilty December 10, 1972, was successful in his first habeas corpus attempt in Butts County on July 2, 1973, was indicted by the Lincoln County grand jury on July 23, 1973, for the same burglary charge to which he had previously pled guilty by way of accusation, and was returned from Butts to Lincoln County on August 13, 1973. The habeas court below found that appellant was not denied his right to a commitment hearing and since he had been indicted and probable cause established to hold him for retrial no harmful error had been committed, citing Thrash v. Caldwell, 229 Ga. 585, 193 S.E.2d 605.

This court has held that the failure to give an accused a commitment hearing is harmless error after he has been indicted, tried and convicted, and is not thereafter ground for the grant of habeas corpus relief. See Phillips v. Stynchcombe, 231 Ga. 430(1), 202 S.E.2d 26. See also the dissenting opinions to that decision. The decision in this case has an additional basis.

According to Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, the issue as to whether a person arrested upon a prosecutor's information is constitutionally entitled to a judicial determination of probable cause for pre-trial restraint of liberty becomes moot upon conviction, release on recognizance, dismissal of charges, guilty plea, or acquittal after trial; i.e., upon termination of the pre-trial detention (95 S.Ct. 854). In that case, the Court was unanimous in holding that a class action could continue notwithstanding the fact that the class representatives' claims had been rendered moot by their convictions.

In the case at hand, appellant's claim to have been entitled to a commitment hearing prior to his pleading guilty was rendered moot by that plea. His claim to have been entitled to commitment hearing prior to his jury trial was rendered moot by his conviction. The court below did not err in denying habeas corpus relief upon this ground.

By basing this decision on mootness, this court does not intend to effect a repeal of Code Ann. §§ 27-210, 27-212 (Ga.L.1956, pp. 796, 797) which provide the right to a speedy hearing. The General Assembly enacted those provisions and they are law.

Code Ann. § 27-210 provides that a person arrested under a warrant shall be brought before a committing officer within 72 hours after arrest for commitment hearing, and that an offender not notified, before the hearing, of the time and place of such hearing, shall be released. An offender who is not afforded a commitment hearing receives no notice of the time and place thereof. Hence the provision requiring release applies equally to one who receives no commitment hearing as well as to one who receives no advance notice of the time and place thereof.

Although not ground for post-conviction habeas corpus due to mootness (as seen above), denial of commitment hearing would be ground for pre-indictment habeas corpus. Pre-indictment habeas corpus for lack of commitment hearing can be handled expeditiously (see Code Ann. §§ 50-101(a), 50-107, 50-126, 6-1002(a) (d), 6-1003, 81A-162(e), and 24-4536(c)).

3. The court below correctly found against appellant's assertion that it was error for the trial court to reappoint an attorney who had represented him on his guilty plea on the burglary charge in McDuffie County to represent him again at the trial in Lincoln County.

Appellant contends that his guilty plea attorney was shown to be ineffective by permitting appellant to plead guilty in McDuffie Superior Court without written waiver of indictment. In order to expedite his guilty plea, appellant had freely and voluntarily waived his right to have his case heard in Lincoln County, the site of the crime. It was not the responsibility of appellant's guilty plea attorney to obtain written waiver of indictment.

Appellant also contends his representation was inadequate for the reason that his counsel did not plead double jeopardy at the jury trial. This contention is dealt with below.

The record shows that the trial judge would not permit the withdrawal of appellant's guilty plea attorney, even though the attorney would not have protested at being relieved, because the only attorney in Lincoln County was very much overburdened in representing indigents. The trial judge did, however, appoint a second attorney to assist in the defense at appellant's trial.

An indigent accused has no right to pick and choose his court appointed counsel. He is entitled to have his appointed counsel render reasonably effective assistance, Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515. Appellant failed to show that the renewed presence of his guilty plea attorney at his jury trial in any way prejudiced the outcome of the case or that the attorney failed to render effective assistance. Indeed, the testimony produced at the habeas hearing shows that both attorneys rendered diligent service in appellant's behalf. His arrest inside the establishment made his defense difficult, to say the least.

4. There is likewise no merit in the contention that appellant's jury trial after his successful first habeas corpus petition and subsequent remand to Lincoln County constituted...