Ponder v. State
| Decision Date | 26 February 1991 |
| Docket Number | No. S90G0702,S90G0702 |
| Citation | 400 S.E.2d 922,260 Ga. 840 |
| Parties | PONDER v. The STATE. |
| Court | Georgia Supreme Court |
Glen A. Cheney and Michael L. Chidester, Cheney & Cheney, Reidsville, for Ponder.
Dupont K. Cheney, Dist. Atty. and Mark S. Daniel, Asst. Dist. Atty., Hinesville, for the State.
Appellant did not directly appeal his conviction for several offenses committed while in prison, but was granted an out-of-time appeal in a habeas corpus proceeding. Counsel appointed to represent appellant on appeal filed a notice of appeal and took the case to the Court of Appeals. That court, in affirming appellant's convictions, held that his claims of ineffective assistance were waived because they were raised for the first time on appeal. This court granted certiorari to consider when, in the context of an out-of-time appeal, a claim of ineffective assistance of counsel must be raised so as to preserve the issue for review.
1. In Simpson v. State, 250 Ga. 365 (2), 297 S.E.2d 288 (1982), this court declined to address the issue of ineffective assistance of counsel because there had been no motion for new trial and trial counsel had not been heard on the issue. In Smith v. State, 255 Ga. 654 (3), 341 S.E.2d 5 (1986), noting that previously this court had not reviewed claims of ineffective assistance where the trial court had not ruled upon the issue, this court held that it is a requisite of a sound criminal justice system that claims of ineffective assistance of counsel be made at the earliest practicable moment, and remanded the case to the trial court. Reinforcing the importance of an early review in the trial court, this court held in Thompson v. State, 257 Ga. 386 (2), 359 S.E.2d 664 (1987), that a claim of ineffective assistance of counsel is waived if appellate counsel files an amended motion for new trial but fails to raise the issue in that motion. Continuing the development of the policy of initial review in the trial court, Dawson v. State, 258 Ga. 380 (2), 369 S.E.2d 897 (1988), held that not only must the issue be raised in the motion for new trial, but the defendant must request an evidentiary hearing. Noting that a defendant should have requested an evidentiary hearing by the time a motion for new trial is decided, this court held in Johnson v. State, 259 Ga. 428 (3), 383 S.E.2d 115 (1989), that when appellate counsel comes into the case after a motion for new trial is decided, the case will be remanded for an evidentiary hearing. None of those cases addressed the situation in which appellate counsel does not come into the case until after the time for a direct appeal has run and an out-of-time appeal has been granted. However, in Bell v. State, 259 Ga. 272, 381 S.E.2d 514 (1989), this court declined to address a claim of ineffective assistance of counsel because the defendant did not raise the issue in his original request for an out-of-time appeal or in the trial court after the request was granted.
We now hold expressly that which was intimated in Bell, supra: the proceeding in which an out-of-time appeal is sought is the proper time to raise the issue of ineffective assistance of counsel. When an out-of-time appeal is sought by means of a motion in the trial court, allegations of ineffective assistance of counsel are germane only insofar as they involve the denial of the defendant's right to appeal, that being the only issue before the trial court. Should the trial court grant the motion, however, the allegations of ineffectiveness become germane to whatever post-conviction relief is sought. The Court of Appeals noted in Smith v. State, 192 Ga.App. 246 (2), 384 S.E.2d 451 (1989), that it is understandable that a defendant would not raise the issue of ineffective assistance in the trial court after the grant of the out-of-time appeal because the
defendant ostensibly is seeking only permission to file a direct appeal to an appellate court and not any form of post-conviction relief from the lower court itself. [Id. at 247, 384 S.E.2d 451]
We believe that the scope of the permission given when an out-of-time appeal is granted must be broader than that. It should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal. The order of the habeas corpus court in the present case is exemplary in that regard because it directed that "post-trial remedies" must be commenced within 30 days of the filing of the order. We hold, therefore, that the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies,...
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Schoicket v. State
...out-of-time appeal essentially restarted the post-conviction process. Her arguments are rooted in statements made in Ponder v. State , 260 Ga. 840, 400 S.E.2d 922 (1991), and Maxwell v. State , 262 Ga. 541, 422 S.E.2d 543 (1992). But we already have begun to trim back those broad statements......
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...hearing must be held at the earliest practicable moment. Thompson v. State, 257 Ga. 386, 388(2), 359 S.E.2d 664. In Ponder v. State, 260 Ga. 840, 841-842, 400 S.E.2d 922, the Supreme Court held that "a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal u......
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...that counsel’s deficient performance had frustrated the filing of such a motion) and have an evidentiary hearing. See Ponder v. State , 260 Ga. 840, 841-842 (1), 400 S.E.2d 922 (1991).19 What the majority does not say today, but may be a future implication of its holding, is that a granted ......
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