Thompson v. State, 41977

• Decision Date: 30 May 1985
• Docket Number: No. 41977,41977
• Parties: THOMPSON v. The STATE.
• Court: Georgia Supreme Court

Page 348

330 S.E.2d 348

254 Ga. 393

THOMPSON v. The STATE.

No. 41977.

Supreme Court of Georgia.

May 30, 1985.

Harry Jay Altman II, Altman & McGraw, Thomasville, for Earl thompson.

H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., Thomasville, Eddie Snelling, Jr., Sr. Atty., for the state.

GREGORY, Justice.

The appellant, Earl Thompson, was indicted by the Thomas County Grand Jury for a violation of OCGA § 16-13-30.1 ¹ in that he "did unlawfully sell ... a non-controlled substance, to-wit: aspirin, with the express and implied representation that the substance was a narcotic controlled substance, to-wit: cocaine, said substance being a counterfeit of a controlled substance to-wit: cocaine." The appellant filed a motion to dismiss the indictment based upon the alleged unconstitutionality of the statute. Following a hearing, the motion to dismiss was denied. Appellant's court-appointed counsel also moved to withdraw as counsel of record based upon the fact that an associate in his law firm had become the Solicitor of State Court of Thomas County. This motion was also denied by the trial court. We granted appellant's application for interlocutory appeal to review these rulings.

1. The appellant contends OCGA § 16-13-30.1 (Ga.Laws 1982, p. 2370) is unconstitutional in that it violates his right of due process as guaranteed by the state and federal constitutions. Specifically, appellant argues the statute violates due process because it subjects him to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances. All violations of this statute subject the violator to a penalty of one (1) to ten (10) years imprisonment or a fine not to exceed $25,000.00, or both. There are no distinctions in penalties made for the type of non-controlled substance sold, or the type of controlled substance it is represented to be. The penalty for the sale of Schedule III, IV and V controlled substances and marijuana is one (1) to ten (10) years imprisonment with no fine. OCGA § 16-13-30(h), (j)(2).

In support of his contention that the disparity in penalties under the two statutes violates due process, appellant relies upon People v. Wagner, 89 Ill.2d 308, 60 Ill.Dec. 470, 433 N.E.2d 267 (1982), where a similar statute was held unconstitutional. Appellant urges this court to adopt the rationale applied in that case and hold our statute unconstitutional. In Wagner, supra, the majority opinion of the Illinois Supreme Court held that it was obvious, even without an express legislative finding, that delivery of a controlled substance is a greater threat to the public than delivery of a non-controlled substance. Therefore, to impose a more severe penalty for the latter offense than the former could not reasonably be designed to remedy the evil. The majority relied on the former opinion in People v. Bradley, 79 Ill.2d 410, 38 Ill.Dec. 575, 403 N.E.2d 1029 (1980). But, as the dissenters pointed out, in Bradley, supra, there was an express legislative determination that delivery of a controlled substance was a more serious offense than possession of that substance, hence the latter could not reasonably be punished more severely than the former.

Our Controlled Substances Act contains no express legislative intent that a person who sells a non-controlled substance represented to be a controlled substance has not committed a more serious offense or should not be punished more severely than one who sells certain controlled substances. The fact that the legislature recognized the differences between the harm associated with various types of controlled substances by providing different penalties for the various types does not govern the statute under consideration in this case. When the legislature enacted OCGA § 16-13-30.1 it was dealing with an entirely different problem from that associated with the sale of controlled substances. We do not know the magnitude of the problem or evil associated with the sale of a substance represented to be a controlled substance and we cannot hope to be as adequately informed as to the nature and extent of the problem as the legislature was. The legislature could have found that the sale of non-controlled substances represented to be controlled substances is a serious health hazard to those who use the substance or that a substantial breach of the peace brought about by the violence emanating from this species of fraud is a greater threat to the public. We are simply not in position to say whether the evil sought to be remedied by OCGA § 16-13-30.1 is not as great a threat to the public health, safety and welfare as is the delivery of certain controlled substances. This is a matter to be determined by the General Assembly. This court will not substitute its judgment for that of the General Assembly in regard to the penalty to be imposed for violations of the statute. Hodges v. Community Loan & Investment Corp., 234 Ga. 427, 431, 216 S.E.2d 274 (1975). The General Assembly has the means of informing itself, and it has seen fit to make this classification, which we do not find irrational. Therefore, the trial court properly denied appellant's motion to dismiss the indictment.

2. On November 26, 1984 the trial judge entered an order in which he found the defendant indigent and appointed Harry Jay Altman, II to serve as his attorney. On February 5, 1985, after undertaking representation of the defendant but before trial, Altman filed a motion to withdraw as counsel in which he pointed out that an associate attorney in his law firm had become the Soliditor of the State Court of Thomas County, a part-time position paid by Thomas County. Altman relied on an informal opinion of the Office of General Counsel for the State Bar of Georgia dated December 11, 1984, ² which concluded that representation of a defendant by a part-time state court solicitor in a criminal case in a Superior Court violates Standard 35 of Bar Rule 4-102. ³ The trial court held that Altman was not disqualified nor in violation of any disciplinary rule and denied the motion. This ruling is enumerated as error on appeal.

There are competing interests of significant proportions at work in this issue. The State Bar has filed an amicus curiae brief urging a per se rule of disqualification from the practice of criminal law in this state of all attorneys in a law firm, one member of which is a part time solicitor of a state court. The State Bar is quite properly anxious to assure that all lawyers exercise their professional judgment solely for the benefit of their clients. ⁴ To this end a lawyer should not represent clients with conflicting interests. ⁵ The concern is that an attorney who represents both defendants and the state, though in separate cases of course, has divided loyalties. He is called on at times to attack statutes which he must later defend. He must cross-examine and impeach witnesses today on whom he must rely tomorrow. There is a danger of the appearance of favoritism by a fellow prosecutor to one who serves part-time in a similar role. The effectiveness of a prosecutor may be diluted by his efforts on behalf of defendants which may be misconstrued by law enforcement officials. Over against these concerns we perceive a need in rural sections of the state to hire attorneys to serve part-time as solicitors because public funds are inadequate and workloads insufficient to justify full-time solicitors. In order to secure competent counsel to serve as part-time solicitors it is desirable that they be permitted to supplement their incomes through the private practice of law. Many criminal cases which come before us involve indigents for whom trial judges have appointed counsel. In rural areas with few attorneys the disqualification of part-time solicitors and their firms may seriously hamper the trial judge in appointing competent counsel to represent the indigent, and may impose unduly on the time and resources of the non-disqualified attorneys in the community.

Until local and state governments devise means to avoid the necessity of part-time solicitors, we decline to impose a per se rule of disqualification. Instead, we hold that an actual conflict of interest must be shown in order that a partner or associate of a part-time solicitor of a state court be disqualified from representation of a defendant in a criminal case before a superior court. This must be done on an ad hoc basis. Hudson v. State, 250 Ga. 479(1), 299 S.E.2d 531 (1983); State ex rel. Starnes v. Erickson, 85 S.D. 489, 186 N.W.2d 502 (1971).

In rendering its opinion of disqualification the State Bar relied on a substantial number of ethics opinions from other jurisdictions which tend to support the opinion. ⁶ We do not quarrel with the concerns expressed in any of these opinions. They are valid concerns. Our position is pragmatic. Until the need for part time solicitors is eliminated through means beyond our control, we decline to adopt a per se rule but require a case-by-case approach in which an actual conflict of interest must be shown. The State Bar also relied on our recent opinion in Georgia Department of Human Resources v. Sistrunk, et al, 249 Ga. 543, 291 S.E.2d 524 (1982). However, as was pointed out in the dissenting opinion of Chief Justice Jordan and made plain in the majority opinion, the application was limited to civil transactions. We decline to extend that principle to criminal cases involving the circumstances before the court in this case.

Judgment affirmed.

All the Justices concur, except HILL, C.J., concurs specially and WELTNER, J., dissents.

HILL, Chief Justice, concurring specially.

As for Division 2 of the majority opinion, I concur in the judgment only. I abhor the...