Frankie Gray v. State

• Court: Court of Appeals of Georgia
• Decided: February 14, 2018
• Docket: A18A1100
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 14, 2018

The Court of Appeals hereby passes the following order:

A18A1100. GRAY v. THE STATE.

Attorney Benjamin Davis represented appellant Frankie Gray in the jury trial in this case and filed the notice of appeal on behalf of Gray. This case was docketed on January 24, 2018. On January 25, 2018, attorney Donald Samuel filed a notice of entry of appearance with this Court.

On January 25, 2018, Samuel also filed a motion to remand this case to the trial court to raise the issue of ineffective assistance of counsel, indicating that the State consents to the motion, and also asserting that Davis “is expected to withdraw from further representation” of Gray. On January 30, 2018, Davis filed his Response to Motion to Remand, asking this Court to deny the motion to remand and arguing that Gray waived the claim of ineffective assistance of counsel by not raising it in the trial court. Davis has not withdrawn from representation of Gray in this Court, Samuel has not filed a substitution, and this Court is thus presented with opposing pleadings from separate attorneys for Gray.

The motion to remand is hereby GRANTED to the extent that it requests remand for the trial court to conduct a hearing regarding Gray’s claim of ineffective assistance of trial counsel. See, generally, Wilder v. State, 220 Ga. App. 694, 695 (2) (469 SE2d 549) (1996) (remanding the case to the trial court for consideration of defendant’s claim that trial counsel was ineffective where the “first opportunity to raise the issue . . . came after his trial attorney filed a notice of appeal on defendant’s behalf”); compare Dawson v. State, 302 Ga. App. 842, 843-844 (691 SE2d 886) (remand denied where “appellate counsel was appointed after the grant of [an] out-of- time appeal but prior to the filing of the notice of appeal”). On remand, the trial court shall also make a determination on the record as to which attorney(s) is/are appellate counsel for Gray. Insofar as the motion to remand requests remand for the trial court to hear “any other issues for [that] court to embrace and rule upon[,]” the motion is DENIED.

This case is therefore remanded only for the trial court to make a determination as to Grey’s appellate counsel, and to hear his claim of ineffective assistance of trial counsel and enter its ruling thereon.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/14/2018 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.