Rucker v. State

520 S.E.2d 693 (1999) 271 Ga. 426

RUCKER
v.
The STATE.

No. S99A0574.

Supreme Court of Georgia.

September 13, 1999.

M.V. Booker, Washington, for appellant.

Robert W. Lavender, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

SEARS, Justice.

The appellant, Danny Rucker, was convicted of the felony murder and armed robbery of Lou Ellen Rowland and of the aggravated assault of Renee Maxwell. After his conviction, Rucker obtained new appellate counsel, Kenneth Dious, who filed a motion for new trial, contending, among other things, that trial counsel had rendered ineffective assistance of counsel. After the trial court denied the motion for new trial, Rucker obtained new counsel, M.V. Booker, and appealed to this Court. In 1997, we affirmed the judgment in part and remanded in part.^[1] In affirming in part, we held that the evidence was sufficient to support Rucker's convictions, and that he failed to carry his burden to show that he received ineffective assistance of trial counsel.^[2] Rucker, however, also contended that Dious had provided ineffective assistance of counsel during the motion for new trial proceedings. We concluded that Rucker had raised the claim at the earliest practicable moment, and remanded the issue to the trial court for a hearing and appropriate findings.^[3] The trial court subsequently rejected this claim, and Rucker has filed this appeal.^[4]

To prevail on his claim of ineffective assistance of counsel, Rucker was required to show that the performance of his counsel on motion for new trial was deficient and that the deficient performance prejudiced the defense.^[5] Furthermore, "[i]n evaluating an attorney's performance, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."^[6] Having reviewed the transcripts of the new trial hearings, we conclude that the alleged instances of ineffectiveness were either strategic decisions, or caused no prejudice to Rucker's efforts to win a new trial. Accordingly, we affirm the trial court's judgment denying Rucker's motion for new trial.

Judgment affirmed.

All the Justices concur.

NOTES

[1] Rucker v. State, 268 Ga. 406, 489 S.E.2d 844 (1997).

[2] Id. at 407-408(1, 2), 489 S.E.2d 844.

[3] Id. at 408(3), 489 S.E.2d 844.

[4] The trial court entered its order on remand on October 27, 1998. Rucker filed his notice of appeal on November 18, 1998, and the appeal was docketed in this Court on January 14, 1999. The case was submitted for decision on briefs on March 8, 1999.

[5] Russell v. State, 269 Ga. 511(1), 501 S.E.2d 206 (1998); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[6] Russell, 269 Ga. at 511, 501 S.E.2d 206.