811 S.E.2d 71
Ga. Ct. App.2018Background
- Appellant Daniel Delevan was convicted of DUI and sentenced in June 2016; a timely motion for new trial was filed by GPDC attorney David Clark but was denied on November 29, 2016.
- No timely notice of appeal was filed after denial of the motion for new trial; the State moved to enforce sentence on February 20, 2017.
- On March 2, 2017 Clark filed a motion for an out-of-time appeal, admitting his office failed to file a notice of appeal and asserting ineffective assistance of counsel as the sole cause of the delay.
- At the hearing the Appellant was represented by another GPDC attorney, Michael Tarleton, who did not call Clark or staff as witnesses; Appellant testified he left a voicemail for Clark after learning no notice had been filed.
- The trial court found Appellant partly responsible (“asleep at the wheel”) and denied the out-of-time appeal; Clark then filed a timely appeal of that denial to the Court of Appeals.
- The Court of Appeals vacated the trial court’s order and remanded for a new hearing with conflict-free counsel, concluding Clark (and, because of imputed conflict, Tarleton) should have been disqualified once Clark’s ineffective-assistance was asserted.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether denial of out-of-time appeal was error | Clark's office negligence caused loss of appeal rights; Appellant entitled to out-of-time appeal | Appellant failed to prove counsel's error was sole cause; Appellant may have slept on rights | Court did not decide merits; vacated and remanded because of counsel conflict issues |
| Whether counsel who committed alleged ineffectiveness may represent at hearing | Clark (through Tarleton) pursued motion asserting office error | State: movant must present competent evidence; counsel at issue should testify | Court: attorney whose ineffectiveness is alleged must be disqualified as advocate and likely be a necessary witness |
| Whether another lawyer from same public defender office may represent client on that claim | Tarleton argued he could represent and disputed who was at fault | State argued insufficient competent evidence and conflict concerns | Court: imputed firm conflict disqualifies other office lawyers; Tarleton should have been disqualified |
| Appropriate remedy when conflict exists after allegation of counsel ineffectiveness | N/A | N/A | Vacate trial court's denial; appoint conflict-free counsel and hold new hearing on out-of-time appeal motion |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice test for ineffective assistance of counsel)
- Hood v. State, 282 Ga. 462 (public defender cannot reasonably be expected to assert claim of own ineffectiveness)
- Garland v. State, 283 Ga. 201 (defendant entitled to conflict-free counsel to pursue ineffectiveness claims)
- Kennebrew v. State, 267 Ga. 400 (imputed disqualification applies to public defender offices when ineffectiveness of an office member is asserted)
- Castell v. Kemp, 254 Ga. 556 (lawyer-witness role creates ethical and practical conflicts; advocacy impaired)