Turner v. State , 214 Ga. App. 454 ( 1994 )

Blackburn, Judge.

This is the second appearance of this case before us. In Turner v. State, 210 Ga. App. 328 (436 SE2d 66) (1993), we affirmed Turner’s conviction of one count of the sale of cocaine and remanded the case for consideration of Turner’s ineffective assistance of counsel claim. Turner now appeals the trial court’s denial of his ineffective assistance of counsel claim.

Decided August 17, 1994. L. Elizabeth Lane, for appellant. Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

“Defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel. A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 118 (443 SE2d 708) (1994).

On appeal, Turner asserts his counsel was ineffective in that the fee arrangement entered into with his trial counsel was a contingent fee arrangement. The evidence indicates that Turner’s trial counsel was handling a civil case for Turner at the time of Turner’s arrest. Turner agreed to pay his counsel a $500 retainer and $100 per hour for counsel’s work on the criminal case. Turner’s counsel did not receive the retainer initially, but agreed to take his fee from the settlement money obtained in the civil matter.

This is not a contingent fee arrangement. Turner agreed to pay counsel’s hourly rate regardless of the outcome of the criminal matter. Furthermore, Turner has failed to satisfy his burden of showing that his counsel’s performance was deficient, and that he was prejudiced by such deficiencies. See id.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.