McClure v. State, A92A0214
| Decision Date | 14 July 1992 |
| Docket Number | No. A92A0214,A92A0214 |
| Citation | 421 S.E.2d 121,205 Ga.App. 22 |
| Parties | McCLURE v. The STATE. |
| Court | Georgia Court of Appeals |
Jon W. McClure, Valdosta, Melnick, Moore & Elliott, Larry M. Melnick, Jonesboro, for appellant.
Keith C. Martin, Sol., for appellee.
Sean McClure appeals the trial court's dismissal for failure to comply with OCGA § 5-6-42 of the appeal of his conviction for misdemeanor theft by shoplifting, OCGA § 16-8-14(a) and (b)(1). The dismissal followed a hearing on the State's motion to dismiss grounded on defendant's failure to pay the remaining amount needed for completion of the trial transcript, his not filing the transcript, and his failure to file a request for extension of time for its filing. See OCGA § 5-6-39(a)(3).
Defendant, via new appellate counsel, challenges the dismissal on two bases: defendant's former appellate representation by "pro bono" counsel, defendant's father, was ineffective under the standards of the State and Federal Constitutions because of counsel's failure to seek an extension of time to obtain the trial transcript so as to prevent dismissal of defendant's appeal; as an indigent, defendant was denied his rights, under the State and Federal Constitutions, to appointed counsel and was forced to seek the ineffective assistance of his attorney-father to pursue his appeal. A consideration of the history of counsel involvement is necessary for proper disposition.
On April 6, 1990, the court certified defendant as indigent and entitled to appointed counsel. The court administrator assigned attorney Matthews, and a trial at the beginning of July resulted in a conviction.
On July 11, Matthews filed a notice of appeal which stated that a transcript of evidence and proceedings would be filed for inclusion in the record on appeal. He appended an "Enumeration of Errors" which included an allegation that he had not provided defendant with effective assistance at trial. On July 27, Matthews filed a "Motion for Trial Transcript" asserting that defendant was indigent and unable to afford a copy of his trial transcript. Four days later, the State moved for a substitution of counsel because of the pragmatic and ethical considerations in resolving the issue of ineffective assistance of trial counsel. After a hearing on August 10, the court disqualified Matthews because of defendant's desire to pursue that issue. The order concluded: "In that the Court has not yet appointed council (sic) for the Defendant at public expense for appellate purposes, the Defendant must, if desired, move this Court to do so." The motion for a trial transcript which had been filed by Matthews was not ruled on.
Ten days later, defendant himself filed a pauper's affidavit in which he certified that he was unable to afford his appeal and unable to pay for a copy of his trial transcript. He also filed a letter addressed to the trial court which related his inability to obtain employment and his indigence. It concluded: "It is my understanding that ... Matthews has been removed as my counsel, therefore, I ask the Courts to please appoint competent defense counsel for my appeal."
On the same day, the trial court wrote defendant a letter advising,
On October 19, the defendant's father, an attorney, filed a notice of appearance as appellate counsel and an amendment to the notice of appeal. It reaffirmed that a full trial transcript would be filed for inclusion in the record on appeal and reserved the right to further amend the notice and enumerations of error upon receipt of the trial transcript. On the same day, this counsel also filed a copy of a request for transcript addressed to the court reporter which recited that he enclosed a $500 deposit so that the trial transcript could be completed and provided as soon as practicable.
About 11 months later, in September 1991, the State moved to dismiss the appeal. The court conducted a hearing on the motion on September 25 at which counsel argued his own financial hardship and inability to pay the remaining transcript costs on behalf of his son. He admitted his own legal ineffectiveness in failing to file for an extension to obtain the transcript. He also filed in open court a "Motion for Appointment of Counsel and Payment to Attorney for Trial Transcript" in which he stated that his son was indigent and unable to afford appellate counsel or a trial transcript, that he himself was representing defendant pro bono and had paid the court costs and $945 to the court reporter for the trial transcript, and that he himself was unable to sustain the costs of the appeal and transcript. The motion requested that the court appoint qualified counsel to represent defendant and that the attorney/father be reimbursed for the costs of the appeal and the transcript. Appended to the motion was an affidavit by defendant reaffirming his indigence.
Two days after the hearing, the court entered the dismissal order at issue. The order stated that prior to Matthews' being relieved, the court had verbally notified Matthews that before the court would consider any further appointment of counsel, there would have to be a new indigency hearing since evidence had come out during trial which caused the court to doubt its previous finding of defendant's indigence. It added, "Although the second paragraph of the written order of August 10, 1990 appears to attempt to address this point, the Court for clarity purposes, has restated its position at that time." The court further stated that defendant had never complied with the court's "directive to appear before the Court to be examined to determine his continued eligibility for Court Appointed Counsel and for the county to provide the transcript at taxpayer's expense." The court concluded that "the failure to comply with [OCGA s] 5-6-42 was occasioned by the conduct of the Defendant, and not the conduct of his trial counsel or of his subsequently-retained appellate counsel (his father), ..."
1. The quality of the attorney/father's legal representation insofar as reflected by the failure to file for an extension of time to obtain the transcript did not figure in the trial court's decision. Thus, aside from any procedural impediment to a present consideration of the issue of his effectiveness in his interim appellate representation, such issue of ineffective appellate counsel is not a relevant inquiry in regard to the propriety of the dismissal of defendant's appeal. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
2. The crux is the defendant's own conduct in pursuing his appeal in the context of his entitlement, if any, to further appellate representation on the basis of indigence.
State v. Denson, 236 Ga. 239, 240, 223 S.E.2d 640 (1976). The trial court may make a factual determination of whether or not the convicted defendant's conduct, alone or in concert, purposefully delayed review by the appellate court. Such a determination will not be reversed if there is evidence to sustain it. Id. at 241, 223 S.E.2d 640.
First, even though the trial court pinned its decision to dismiss on the defendant's own conduct, it made no determination as to whether or not the cited conduct of omission amounted to a purposeful delay of the appeal. Nor did it make any finding pursuant to OCGA § 5-6-48(c) that the delay in filing the transcript was Unreasonable and...
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Langston v. State, A92A1998
...delay of the defendant in filing the transcript was not reasonable, and the delay was not excused by the Court." Citing McClure v. State, 205 Ga.App. 22, 421 S.E.2d 121, defendant asserts the trial court erred in dismissing the appeal because it made no determination as to whether she purpo......