There is no easier way for the appellate courts to dodge meritorious issues than to throw up procedural barriers to considering an issue. That being said, if you or your appellate attorney do not know how to get an issue before the Court, what do you think the chances are that you will actually win on the merits? In ineffective assistance of counsel cases, the most common deficiency of appeals is the failure to raise ineffective assistance claims at the earliest possible time. Over and over again this lesson repeats itself.
Morris argues on appeal, for the first time, that he received ineffective assistance from his trial counsel. However, appellate review of this claim is barred because Morris failed to raise it at the first practicable opportunity.
Under well established Georgia law, appellant was required to raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived. This requirement that an ineffectiveness claim be made at the earliest practicable moment is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and the public. By “earliest practicable moment,” we mean that the ineffectiveness claim must be raised before appeal if the opportunity to do so is available.
(Citations and punctuation omitted). Garland v. State, 283 Ga. 201, 202, 657 S.E.2d 842 (2008). In cases where a defendant raises a claim of ineffective assistance of trial counsel for the first time on appeal—rather than through a motion for new trial before the trial court—the issue is procedurally barred. See Maxwell v. State, 262 Ga. 541, 543(3), 422 S.E.2d 543 (1992) (failure to file motion for new trial raising ineffective assistance of counsel claim in trial court bars review); see also Dawson v. State, 302 Ga.App. 842, 843–844, 691 S.E.2d 886 (2010) (failure to file motion to withdraw guilty plea raising ineffective assistance of counsel claim in trial court bars review).
In this case, the trial court entered Morris's judgment of conviction on March 26, 2014. On April 23, 2014, Morris's appellate attorney filed both an entry of appearance and a notice of appeal. Then, on May 28, 2014, appellate counsel filed a motion for new trial. The trial court dismissed the motion, as amended, because the pending appeal had removed the case from the trial court's jurisdiction.
Morris was required to assert his claim of ineffective assistance of counsel at the earliest opportunity, and was further required to present his claim to the trial court before arguing it on appeal. See Garland, supra, 283 Ga. at 202, 657 S.E.2d 842. Where, as here, appellate counsel's representation commences before the notice of appeal is filed, the defendant's first opportunity to raise a claim of ineffective assistance of trial counsel is in a motion for new trial. See Dawson, supra, 302 Ga.App. at 844, 691 S.E.2d 886 (where current appellate counsel was appointed prior to the filing of the notice of appeal, defendant's first opportunity to raise a claim of ineffective assistance of earlier counsel would have been in a second motion to withdraw his guilty plea); Williams v. State, 257 Ga.App. 589, 590(3), 571 S.E.2d 571 (2002) (pro se defendant's failure to file motion for new trial before filing notice of appeal bars review of his ineffective-assistance claim). Morris failed to file such a motion, and instead raised the claim for the first time in his appeal. Under these circumstances, Morris's claim of ineffective assistance of trial counsel is now barred and may only be addressed in a habeas corpus proceeding.
Morris v. State, No. A14A2321, 2015 WL 718419, at *1-2 (Ga. Ct. App. Feb. 20, 2015).
There is no reason for the lesson of Morris to be repeated. This case gives us a simple, yet clear, directive about the timeliness of ineffective assistance of counsel claims.
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