Morris v. the State

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
February 20, 2015
In the Court of Appeals of Georgia
A14A2321. MORRIS v. THE STATE.
MILLER, Judge.
Following a jury trial, Johnny David Morris was convicted of driving under the
influence (“DUI”) less safe (OCGA § 40-6-391), driving too fast for conditions
(OCGA § 40-6-180), failing to use brake lights (OCGA § 40-8-25), failing to use
headlights (OCGA § 40-8-22), and a window tint violation (OCGA § 40-8-73.1).
Morris appeals, arguing that the trial court erred by denying his motion for a directed
verdict and that he received ineffective assistance from his trial counsel. For the
reasons that follow, we affirm.
On appeal from a criminal conviction, we view the evidence in the light most
favorable to the jury’s verdict. See Wallace v. State, 294 Ga. App. 159 (1) (669 SE2d
400) (2008). So viewed, the evidence shows that Officer Randy Greenewold, of the
Forest Park Police Department, was on patrol on the morning of December 15, 2012.
At approximately 5:18 a.m., Officer Greenewold observed Morris driving on Old
Dixie Highway, traveling 60 to 65 miles per hour in a 40 mile per hour zone and
without any lights on.
Upon approaching Morris’s car, Officer Greenewold noticed that Morris’s eyes
were glassy and he smelled of alcohol. Morris told Officer Greenewold that he had
drank a six pack of beer three hours earlier. Based on this information, as well as
Morris’s performance on the horizontal gaze nystagmus test, the walk-and-turn test,
and the one-leg-stand test, as well as Morris’s positive alcohol breath test, Officer
Greenewold arrested him for DUI less safe. Officer Greenewold also measured the
car’s window tint and determined that it was too dark.
1. Morris argues that the trial court erred in denying his motion for directed
verdict, insisting that there was insufficient evidence identifying him as the driver.
Morris’s argument is without merit, because Officer Greenewold testified that Morris
was the driver.
When the State first asked Officer Greenewold if Morris was the driver he
arrested that night, Officer Greenewold hesitated and observed that it had been nearly
two years since the incident. However, he ultimately responded in the affirmative and,
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at two points later in the trial, he again confirmed that Morris was the driver he
arrested that night.
“[T]he testimony of a single witness is generally sufficient to establish a fact.”
(Citation omitted.) Crawford v. State, 301 Ga. App. 633, 636 (1) (688 SE2d 409)
(2009). Given Officer Greenewold’s identification of Morris, the evidence was
sufficient for the jury to conclude that Morris was the driver. In addition, to the extent
Morris challenges the credibility of Officer Greenewold’s identification, that is a
matter which fell squarely within the province of the jury. See id.
2. 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.
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(Citations and punctuation omitted). Garland v. State, 283 Ga. 201, 202 (657 SE2d
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 SE2d 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 SE2d 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. 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
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is in a motion for new trial. See Dawson, supra, 302 Ga. App. at 844 (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 SE2d 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.
Judgment affirmed. Doyle, P.J., and Dillard, J., concur.
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