Pitts v. Glass

• Citation: 231 Ga. 638,203 S.E.2d 515
• Decision Date: 28 January 1974
• Docket Number: No. 28439,28439
• Parties: Clyde PITTS v. Jimmy GLASS.
• Court: Georgia Supreme Court

Page 515

203 S.E.2d 515

231 Ga. 638

Clyde PITTS v. Jimmy GLASS.

No. 28439.

Supreme Court of Georgia.

Jan. 28, 1974.

Glenn Zell, Atlanta, for appellant.

Philip T. Keen, Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The alleged denial of effective assistance of counsel at a burglary trial is the sole issue presented in this habeas corpus appeal. The appellant was tried and convicted for burglary in the Superior Court of Henry County. His conviction was affirmed in a 5 to 4 decision of the Court of Appeals and is reported in 128 Ga.App. 434, 197 S.E.2d 495. Certiorari was denied by this court.

Thereafter, appellant filed his petition for a writ of habeas corpus and a hearing was conducted before the same trial judge who presided at the burglary trial. Appellant was represented at the main trial by counsel appointed by the court. After conviction for burglary, appellant's family retained other counsel to prosecute the appeal but no issue was made as to appointed counsel's competence at the trial until it was asserted in the habeas corpus proceeding following affirmance of the conviction by the Court of Appeals.

The trial court entered an order at the conclusion of the habeas corpus hearing which, in pertinent parts, reads as follows: 'The above case having come before the court for hearing and the Court having heard the evidence and argument of counsel, the following findings of fact and conclusions of law are entered: (1) That petitioner is in the custody of the respondent by virtue of his conviction by a jury and a sentence of 20 years for burglary, which conviction was affirmed on appeal by a decision of the Georgia Court of Appeals. (2) That said petitioner was represented by competent counsel . . . who is found to be a qualified attorney . . . (4) The court further finds that none of the petitioner's constitutional rights were violated, that his conviction was lawful. (5) The court also finds that the petitioner had ample time and opportunity to discuss this case with (counsel) prior to the trial and that the petitioner understood his right to make an unsworn statement and knew and understood the consequences of any statement that he might make to the jury trying his case.'

Appellant urges in this appeal that under the standard for measuring the effectiveness of counsel noted by the Federal Circuit Court in West v. State of Louisiana, 478 F.2d 1026 (5th Cir. 1973), a conclusion is required that his appointed counsel at the burglary trial was ineffective. The standard of effectiveness referred to in West was stated in MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), as follows: 'We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' (Emphasis supplied.)

This court has previously recognized many times that the right to effective counsel is of paramount importance. As recently as McAuliffe v. Rutledge, 231 Ga. 1, 3, 200 S.E.2d 100, 101, this court observed that: 'The right to counsel is (the accused's) most vital and precious right since any other rights the accused may possess will remain sterile unless he has effective counsel to assert them in his behalf.' See also Jackson v. State, 176 Ga. 148(1), 167 S.E. 109.

This does not mean, however, that...