Birdsong, Presiding Judge.
Terry Holt appeals out-of-time following his March 29, 1991 plea of guilty to the offense of child molestation. On an earlier appeal (Case No. A92A0059, in which the out-of-time notice of appeal was filed September 12, 1991), we remanded the case for consideration whether appellant could represent himself and whether appellate counsel’s request to withdraw should be granted, and we specified that the appeal could then be reinstated by an out-of-time appeal. On remand the trial court ruled that appellant could represent himself on appeal and appellate counsel could withdraw. The trial court expressly found also that following his plea of guilty and sentence to ten years imprisonment, appellant made filings complaining of ineffective assistance of counsel during his guilty plea and waiver of jury trial; new counsel was appointed who, on September 12, 1991, obtained permission for an out-of-time appeal; however, on September 13, 1991, and twice again appellant notified the trial court that he did not want an attorney on his appeal, whereupon the trial court allowed appellate counsel to withdraw.
Following this November 25, 1991 order appellant pro se filed a notice of appeal from “the judgment of conviction and sentence.” Held:
1. After filing this notice of appeal out-of-time on December 2, 1991, thereafter on December 9, 1991, appellant filed an inaptly titled “motion for out-of-time appeal” in the trial court, requesting the trial court to issue an order allowing an out-of-time appeal to be filed “due to newly discovered evidence and under some very unusual circumstances.” When, after the trial court’s ruling that appellant could represent himself in his appeal, appellant filed his notice of appeal from the judgment of conviction upon guilty plea and sentence, his notice of appeal operated to remove jurisdiction from the trial court. Dalton Amer. Truck Stop v. ADBE Distrib. Co., 146 Ga. App. 8 (245 SE2d 346). The trial court was therefore without jurisdiction to consider appellant’s subsequently filed motion as to newly discovered evidence.
2. The trial court did not err in allowing appellate counsel to withdraw and in permitting appellant to represent himself. See Dobbins v. Dobbins, 234 Ga. 347 (216 SE2d 102); Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574).
3. The enumerations of error framed by appellant are that the trial court erred in not allowing him to examine his defense and pros[41]*41ecution witnesses; that the trial court erred in not affording him the right to present his wife’s prior statement in evidence; that prosecutorial misconduct resulted in admission of false statements in the trial to force a guilty plea; and that the prosecution threatened appellant and kept him from testifying before a jury.
The issues presented by appellant are equivalent at least to an assertion that he was denied effective assistance of trial counsel and that his waiver of trial and guilty plea were involuntary. The trial court’s order following the first remand of this case does not disclose that appellant waived consideration of the claim, and we will not hold that he did, inasmuch as he raised it pro se in the trial court prior to any appeal and he sought a procedure wherein the court could resolve the issues raised, he raised it pro se in his first appeal when appointed counsel filed a notice of appeal without having obtained a hearing on the issue in the trial court, and he raised it again in this second appeal.
It is settled that where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115); Kinney v. State, 199 Ga. App. 354 (2) (405 SE2d 98); In the Interest of G. G. L., 199 Ga. App. 357 (405 SE2d 100); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863). The law in these cases is that an evidentiary hearing must be held at the earliest practicable moment. Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664). In Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922), the Supreme Court held that “a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.” But, in that case the Supreme Court remanded the matter for an evidentiary hearing because, “[Ponder] did raise the issue of ineffective assistance of counsel prior to the appeal: albeit unartfully and incompletely ... it would be manifestly unfair to deny appellant an opportunity to follow the procedure we have set out above”; the case was remanded “for the purpose of permitting [Ponder] to file a motion for new trial.” Id. at 842.
A motion for new trial is not the proper vehicle for contesting a guilty plea; rather it may be challenged for the first time on appeal. See Agerton v. State, 191 Ga. App. 633 (382 SE2d 417), citing Smith v. State, 253 Ga. 169 (316 SE2d 757).
The court in Ponder had difficulty with the “manifest unfair [ness]” of holding that Ponder’s claim had been waived when in fact he had raised it prior to appeal. Compare Meriwether v. State, 204 Ga. App. 113 (418 SE2d 451) (1992), where the claim was raised for the first time on an out-of-time appeal. The goal, according to the [42]*42Supreme Court in Ponder, is that “at the earliest practicable moment” (id. at 840) appellant “must present the issue of ineffective assistance of counsel to the trial court” (id. at 842); Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1). So, the issue may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel (White v. Kelso, 261 Ga. 32 (401 SE2d 733), citing Johnson v. State, 259 Ga. 428 (383 SE2d 115)) but, where new counsel amends a motion for new trial without raising the issue of ineffective assistance so that it may be heard in the trial court, the issue is waived. White, supra, citing Thompson v. State, 257 Ga. 386 (359 SE2d 664). As to this, the Supreme Court said in White at 33, a habeas corpus case, that “[a] pro se petitioner is in a position similar to that of new counsel,” and when that pro se petitioner made his first appearance in his own behalf, the claim of ineffective assistance of counsel had “already been waived by his appellate counsel.” Id. However, the Supreme Court held that the procedural bar to the claim “does not apply when the petitioner shows cause and prejudice as described in Black v. Hardin [255 Ga. 239 (336 SE2d 754)], or when the procedural bar will work a miscarriage of justice.” White, supra at 33. The court concluded that appellant showed neither “cause for appellate counsel’s failure to raise the claim [nor] any prejudice arising therefrom. Further, the record does not reflect any miscarriage of justice. Finally, petitioner does not argue that his appellate counsel rendered ineffective assistance.”
This statement just quoted appears to recognize a fundamental problem in holding that ineffective appellate counsel may waive a defendant’s claim of ineffective assistance of trial counsel. If the defendant has a right to effective assistance of trial counsel, then it is hard to see why he would not have a right to effective assistance of appellate counsel.
Free access — add to your briefcase to read the full text and ask questions with AI
Birdsong, Presiding Judge.
Terry Holt appeals out-of-time following his March 29, 1991 plea of guilty to the offense of child molestation. On an earlier appeal (Case No. A92A0059, in which the out-of-time notice of appeal was filed September 12, 1991), we remanded the case for consideration whether appellant could represent himself and whether appellate counsel’s request to withdraw should be granted, and we specified that the appeal could then be reinstated by an out-of-time appeal. On remand the trial court ruled that appellant could represent himself on appeal and appellate counsel could withdraw. The trial court expressly found also that following his plea of guilty and sentence to ten years imprisonment, appellant made filings complaining of ineffective assistance of counsel during his guilty plea and waiver of jury trial; new counsel was appointed who, on September 12, 1991, obtained permission for an out-of-time appeal; however, on September 13, 1991, and twice again appellant notified the trial court that he did not want an attorney on his appeal, whereupon the trial court allowed appellate counsel to withdraw.
Following this November 25, 1991 order appellant pro se filed a notice of appeal from “the judgment of conviction and sentence.” Held:
1. After filing this notice of appeal out-of-time on December 2, 1991, thereafter on December 9, 1991, appellant filed an inaptly titled “motion for out-of-time appeal” in the trial court, requesting the trial court to issue an order allowing an out-of-time appeal to be filed “due to newly discovered evidence and under some very unusual circumstances.” When, after the trial court’s ruling that appellant could represent himself in his appeal, appellant filed his notice of appeal from the judgment of conviction upon guilty plea and sentence, his notice of appeal operated to remove jurisdiction from the trial court. Dalton Amer. Truck Stop v. ADBE Distrib. Co., 146 Ga. App. 8 (245 SE2d 346). The trial court was therefore without jurisdiction to consider appellant’s subsequently filed motion as to newly discovered evidence.
2. The trial court did not err in allowing appellate counsel to withdraw and in permitting appellant to represent himself. See Dobbins v. Dobbins, 234 Ga. 347 (216 SE2d 102); Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574).
3. The enumerations of error framed by appellant are that the trial court erred in not allowing him to examine his defense and pros[41]*41ecution witnesses; that the trial court erred in not affording him the right to present his wife’s prior statement in evidence; that prosecutorial misconduct resulted in admission of false statements in the trial to force a guilty plea; and that the prosecution threatened appellant and kept him from testifying before a jury.
The issues presented by appellant are equivalent at least to an assertion that he was denied effective assistance of trial counsel and that his waiver of trial and guilty plea were involuntary. The trial court’s order following the first remand of this case does not disclose that appellant waived consideration of the claim, and we will not hold that he did, inasmuch as he raised it pro se in the trial court prior to any appeal and he sought a procedure wherein the court could resolve the issues raised, he raised it pro se in his first appeal when appointed counsel filed a notice of appeal without having obtained a hearing on the issue in the trial court, and he raised it again in this second appeal.
It is settled that where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115); Kinney v. State, 199 Ga. App. 354 (2) (405 SE2d 98); In the Interest of G. G. L., 199 Ga. App. 357 (405 SE2d 100); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863). The law in these cases is that an evidentiary hearing must be held at the earliest practicable moment. Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664). In Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922), the Supreme Court held that “a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.” But, in that case the Supreme Court remanded the matter for an evidentiary hearing because, “[Ponder] did raise the issue of ineffective assistance of counsel prior to the appeal: albeit unartfully and incompletely ... it would be manifestly unfair to deny appellant an opportunity to follow the procedure we have set out above”; the case was remanded “for the purpose of permitting [Ponder] to file a motion for new trial.” Id. at 842.
A motion for new trial is not the proper vehicle for contesting a guilty plea; rather it may be challenged for the first time on appeal. See Agerton v. State, 191 Ga. App. 633 (382 SE2d 417), citing Smith v. State, 253 Ga. 169 (316 SE2d 757).
The court in Ponder had difficulty with the “manifest unfair [ness]” of holding that Ponder’s claim had been waived when in fact he had raised it prior to appeal. Compare Meriwether v. State, 204 Ga. App. 113 (418 SE2d 451) (1992), where the claim was raised for the first time on an out-of-time appeal. The goal, according to the [42]*42Supreme Court in Ponder, is that “at the earliest practicable moment” (id. at 840) appellant “must present the issue of ineffective assistance of counsel to the trial court” (id. at 842); Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1). So, the issue may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel (White v. Kelso, 261 Ga. 32 (401 SE2d 733), citing Johnson v. State, 259 Ga. 428 (383 SE2d 115)) but, where new counsel amends a motion for new trial without raising the issue of ineffective assistance so that it may be heard in the trial court, the issue is waived. White, supra, citing Thompson v. State, 257 Ga. 386 (359 SE2d 664). As to this, the Supreme Court said in White at 33, a habeas corpus case, that “[a] pro se petitioner is in a position similar to that of new counsel,” and when that pro se petitioner made his first appearance in his own behalf, the claim of ineffective assistance of counsel had “already been waived by his appellate counsel.” Id. However, the Supreme Court held that the procedural bar to the claim “does not apply when the petitioner shows cause and prejudice as described in Black v. Hardin [255 Ga. 239 (336 SE2d 754)], or when the procedural bar will work a miscarriage of justice.” White, supra at 33. The court concluded that appellant showed neither “cause for appellate counsel’s failure to raise the claim [nor] any prejudice arising therefrom. Further, the record does not reflect any miscarriage of justice. Finally, petitioner does not argue that his appellate counsel rendered ineffective assistance.”
This statement just quoted appears to recognize a fundamental problem in holding that ineffective appellate counsel may waive a defendant’s claim of ineffective assistance of trial counsel. If the defendant has a right to effective assistance of trial counsel, then it is hard to see why he would not have a right to effective assistance of appellate counsel. If it is deemed that a defendant’s appellate counsel, by ineffectiveness, effectively waived his right to claim ineffective assistance of trial counsel, this in itself would seem to work a manifest “unfairness”; hence, the procedure for raising the claim has been modified until finally the defendant may be allowed to have a hearing on claim of ineffectiveness of trial counsel simply by showing “miscarriage of justice,” cause for the failure to raise the claim or prejudice. See White at 33; see also White at 32, where the rule is now stated not in context of “trial” and “appellate” counsel, but in context of “new counsel” and “previous counsel.”
The claim of ineffective assistance of trial counsel with respect to voluntariness of this guilty plea was not made in this case for the first time on appeal. It was first made in the trial court by appellant pro se by filings and motions filed in September, 1991, six months after'his guilty plea hearing. Thereafter, newly appointed (appellate) counsel brought the case to appeal without invoking a hearing on the claims [43]*43and issues which appellant pro se had already raised, “albeit unartfully.” Ponder, supra at 842 (2). The record shows, however, that appellant pro se filed a motion in superior court entitled “Motion to Stay” four days after appellate counsel had filed a notice of appeal. In this motion appellant asked for a stay of an out-of-time appeal “[in part because] defendant may not feel the . . . pleadings [filedvby appellate counsel including notice of appeal] are the proper remedy at this stage to file due to newly discovered evidence and under some very unusual circumstances.” In this motion which attempts to reassert his claim as to ineffective assistance of trial counsel, appellant pro se also requested the court to “properly and adequately make essential preparation to determine the appropriate avenue to remedy the unconstitutional error.” In this clear if unartful request, made after appointed appellate counsel had filed a notice of appeal without ever having talked to appellant (according to an affidavit filed by appellant with his “Motion to Stay”), appellant seeks a remedy from the trial court which could only be afforded by a hearing. We thereafter remanded the case for determination whether appellant could represent himself. Although the motion requesting the court to “adequately make essential preparation to . . . remedy the unconstitutional error” was filed after notice of appeal when the trial court did not have jurisdiction of the case, the trial court had notice of it in the record.
We are hard put to say appellant never presented to the trial court his claim of ineffective assistance of counsel, or that he did not do so at the earliest practicable opportunity (see White, supra; Ponder, supra; Johnson, supra), and we are hard put to say the claim was waived by appellate counsel when the appellant pro se, though unartfully (Ponder, supra), not only raised the claim in the trial court but also sought a procedure wherein to resolve and remedy the errors he claimed. In its order on remand determining that appellant could represent himself, the trial court expressly noted his claim of ineffectiveness of counsel and did not indicate that appellant had waived it. On reinstatement of the appeal, appellant pro se again raises the claim. The purpose of the procedural rules developed in these cases is consistent: to ensure that the issue of ineffective assistance of counsel is raised at the first possible stage of post-conviction review so that the matter may be promptly resolved by the trial judge. White, supra at 32; Ponder, supra at 842. We will not hold that appellant waived the issue in this case. The claim raised by appellant pro se in the trial court prior to any appeal, and as to which he sought a hearing and has consistently reasserted pro se, requires a remand for an evidentiary hearing. See Dawson v. State, 258 Ga. App. 380 (369 SE2d 897); Johnson, supra; Weems, supra at 430. As to the issues on the hearing on effectiveness of trial counsel in connection with a guilty plea, see [44]*44Hatcher v. State, 259 Ga. 274 (1) (379 SE2d 775).
4. The State has failed to file a brief in this appeal and has therefore made no attempt to meet the contentions raised by appellant. In view of his claims of ineffective assistance of trial counsel, it cannot be determined from the transcript of the guilty plea hearing that his plea was voluntary. As to voluntariness of guilty pleas generally, see Morgan v. State, 191 Ga. App. 367, 368 (381 SE2d 583); Agerton v. State, 191 Ga. App. 633, supra; and Dean v. State, 177 Ga. App. 123, 125 (338 SE2d 711). The transcript shows inter alia that appellant made his plea of guilty upon a certain agreement by the prosecution, and the record does not show whether this agreement was fulfilled. Trial counsel stated he had no idea of the whereabouts of the victim and her mother (appellant’s wife) and said, “I have not been in contact with them.” The district attorney rejoined that he had talked to the child but “as far as the mother, I really don’t know.” Appellant now claims he would not have given up his right to subpoena these persons if he had known they could be made available to testify at a trial. In view of the State’s failure to file a brief, we cannot hold the State has borne its burden to prove appellant’s plea was voluntarily and freely made. The case is remanded as above stated, for proceedings not inconsistent with this opinion, to address the matters fairly raised by appellant pro se, in particular so that appellant can file a motion for new trial to obtain a hearing on his claim as to ineffective assistance of counsel and his other justiciable claims. See Ponder, supra.
Case remanded with direction.
Sognier, C. J., McMurray, P. J., and Cooper, J., concur. Pope, J., concurs specially. Carley, P. J., Beasley, Andrews and Johnson, JJ., dissent.