Hardney v. State

Court of Appeals of Georgia

Hardney v. State

570 S.E.2d 379, 257 Ga. App. 62, 2002 Fulton County D. Rep. 2452, 2002 Ga. App. LEXIS 1048

CourtCourt of Appeals of Georgia

DecidedAugust 16, 2002

DocketA02A1415

StatusPublished

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Bluebook

Hardney v. State, 570 S.E.2d 379, 257 Ga. App. 62, 2002 Fulton County D. Rep. 2452, 2002 Ga. App. LEXIS 1048 (Ga. Ct. App. 2002).

Pincite

Opinion

Phipps, Judge.

At an unreported bench trial, Allen Hardney was convicted of the misdemeanor offense of drag racing.¹ In this pro se appeal, he claims that the evidence was insufficient to support his conviction and that his trial counsel was constitutionally ineffective. Because the absence of a transcript or a substitute therefor precludes review of these claims, we affirm.

A person charged with a misdemeanor bears the burden of requesting a trial transcript or constructing a trial record.² Hardney did neither. His challenge to the sufficiency of the evidence is based on material attached as an exhibit to his brief. “ ‘Exhibits contained in an appellate brief which do not appear in the record or transcript [63]*63cannot be considered by this court and afford no basis for reversal.’ [Cit.]”³ Hardney claims that counsel was ineffective because he failed to conduct a proper investigation and prepare a necessary legal defense. This claim, too, cannot be reviewed on the basis of the record before us. Moreover, Hardney’s failure to avail himself of the opportunity to assert his claim of ineffective assistance by motion for new trial before appeal constitutes a procedural bar to raising it now.⁴

Decided August 16, 2002. Allen Hardney, pro se. Richard H. Taylor, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

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Phipps, Judge.

At an unreported bench trial, Allen Hardney was convicted of the misdemeanor offense of drag racing.¹ In this pro se appeal, he claims that the evidence was insufficient to support his conviction and that his trial counsel was constitutionally ineffective. Because the absence of a transcript or a substitute therefor precludes review of these claims, we affirm.

A person charged with a misdemeanor bears the burden of requesting a trial transcript or constructing a trial record.² Hardney did neither. His challenge to the sufficiency of the evidence is based on material attached as an exhibit to his brief. “ ‘Exhibits contained in an appellate brief which do not appear in the record or transcript [63]*63cannot be considered by this court and afford no basis for reversal.’ [Cit.]”³ Hardney claims that counsel was ineffective because he failed to conduct a proper investigation and prepare a necessary legal defense. This claim, too, cannot be reviewed on the basis of the record before us. Moreover, Hardney’s failure to avail himself of the opportunity to assert his claim of ineffective assistance by motion for new trial before appeal constitutes a procedural bar to raising it now.⁴

Decided August 16, 2002. Allen Hardney, pro se. Richard H. Taylor, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

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Bluebook (online)

570 S.E.2d 379, 257 Ga. App. 62, 2002 Fulton County D. Rep. 2452, 2002 Ga. App. LEXIS 1048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardney-v-state-gactapp-2002.

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