Maxwell v. State , 262 Ga. 541 ( 1992 )

Fletcher, Justice,

concurring specially as to Division 3.

While I concur with the result of Division 3 of the majority opinion: remand of the case to the trial court for a hearing on Maxwell’s claim of ineffective assistance of trial counsel, I write separately to express my disagreement with the majority’s creation of a procedure giving rise to a second motion for new trial. I also write to express my concern with a line of cases that this court strayed into during the late 1980’s and that has led to the creation of a confusing tangle of procedural rules regarding when to assert a claim of ineffective assistance of trial counsel.

In 1987, this court decided Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) and for the first time announced that a claim for ineffective assistance of trial counsel “will be deemed waived” if appellate counsel files an amended motion for new trial and does not raise the issue there. Since Thompson, we have spoken too often in terms of an act or failure to act by an appellant’s appellate counsel³ resulting in waiver of an appellant’s right to assert a claim of ineffective assistance of trial counsel. Today, the rule set forth in Division 3 of the majority opinion concerning a second motion for new trial adds to that incredible tangle of special rules of procedure that apply when such a claim is asserted.

It seems that this court has lost sight of the fact that the right to the effective assistance of counsel, which is guaranteed by the Sixth Amendment to the United States Constitution, is a personal right belonging to a defendant faced with a criminal prosecution. That right may only be waived by the defendant and, even then, to be effective, the waiver must be an intelligent one: it must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (58 SC 1019, 82 LE 1461) (1938).

Decided November 17, 1992. C. Jackson Burch, for appellant. Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, C. A. Benjamin Woolf, Staff Attorney, for appellee.

Action or inaction by a defendant’s counsel cannot result in waiver of the right to the effective assistance of counsel or of the right to assert that issue on appeal; it can result only in a procedural default concerning that issue. A procedural default will not bar later review of a claim where a defendant is able to demonstrate cause for and actual prejudice resulting from the default.

Where trial counsel has failed to represent the defendant effectively at trial, and appellate counsel fails to raise the issue, the cause- and-prejudice requirement is readily satisfied: the defendant is “actually prejudiced” by appellate counsel’s failure to raise the issue of trial counsel’s effectiveness, while the appellate counsel’s failure to raise a meritorious effectiveness claim is deficient attorney performance on appellate counsel’s part sufficient to satisfy the “cause” requirement. In other words, our finding of “waiver” based on appellate counsel’s omission to raise the issue of trial counsel’s effectiveness will only delay, not bar, the resolution of this issue.

The process this court began in 1987 with Thompson, 257 Ga. 386, of continuously pushing forward the time when the issue of trial counsel’s effectiveness must first be raised in order to avoid a “waiver” does not achieve true waivers. Instead, it merely invites alert appellate counsel to assert claims of ineffective assistance of trial counsel, regardless of whether there is any merit to such claims, in order to protect themselves from claims that they too were ineffective.

In this case, 17 months after the trial court denied the motion for new trial which had been filed by trial counsel, the trial court granted Maxwell’s pro se motion for an out-of-time appeal and then appointed different counsel to represent Maxwell on appeal. Appellate counsel raised the issue of the effectiveness of trial counsel’s representation of appellant on direct appeal to this court. Because that was the earliest practicable moment such issue could have been raised, I too would remand the case to the trial court for an evidentiary hearing on the issue.

3 By referring to “appellate counsel,” I mean counsel other than trial counsel. If trial counsel is still representing the defendant at the appellate level, a completely different situation is presented.