Ex parte Carlos Dewayne JACKSON. (Re Carlos Dewayne Jackson v. State of Alabama)
1901037
Supreme Court of Alabama
February 28, 1992
Rehearing Overruled Oct. 23, 1992
598 So. 2d 895
The opinion of February 28, 1992, is withdrawn and the following is substituted therefor.
Carlos Dewayne Jackson was convicted on September 21, 1990, of first degree robbery and attempted murder. He was represented at trial and through sentencing by appointed counsel. At sentencing on October 30, 1990, and upon the request of appointed counsel, another attorney was appointed to represent Jackson on appeal. The 30-day period allowed for filing a motion for a new trial expired on November 29, 1990. Neither trial nor appellate counsel filed a motion for a new trial, and appellate counsel did not request an extension of time to file such a motion. The reporter‘s transcript was not completed and certified until December 25, 1990.
The Court of Criminal Appeals, in an unpublished memorandum, 579 So.2d 711, relying on its earlier decision in Dossey v. State, 489 So.2d 662 (Ala.Crim.App. 1986), affirmed the judgment and held that Jackson‘s claim of ineffective assistance of counsel was procedurally barred because he had failed to raise the issue in the trial cоurt by motion for new trial or otherwise. In Dossey, the Court of Criminal Appeals had stated, ” ’ “[C]laims of inadequate representation cannot be determined on direct appeal wherе such claims were not raised before the . . . [trial] court and there has been no opportunity to develop and include in the record evidence bearing on the merits of thе allegations.” ’ ” 489 So.2d at 666 (quoting United States v. Barham, 666 F.2d 521, 524 (11th Cir.), cert. denied, 456 U.S. 947, 102 S.Ct. 2015, 72 L.Ed.2d 470 (1982)).
Jackson contends that when appointed trial counsel and appointed appellate counsel differ, and appellate counsel is requirеd to present any ineffective-assistance-of-counsel claim to the trial court by motion for a new trial, and is required to do so before the reporter‘s transcript is available, it is a denial of procedural due process for the appellate court to treat the failure to present the ineffective-assistance-of-counsel
Initially, we reaffirm the principle that ” ‘claims of ineffective assistance of counsel may not be considered for the first time on direct appeal.’ ” Jackson v. State, 534 So.2d 689, 692 (Ala.Crim.App. 1988) (quoting United States v. Stitzer, 785 F.2d 1506, 1520 (11th Cir.), cert. denied, Perna v. United States, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986)). The rationale for this rule has been explained in the following manner:
” ‘Because the issue was not presented to the district court, the record on appeal is necessarily inadequate to determine the merits of the allegations on that issue at the appellate level. From such references should not be drawn an implication that a particular record on appeal would warrant the appellate court in finding either effective or ineffective assistance of counsel. It is facts bearing on the prеcise issue that are needed and obtainable only after presentation to and determination by the district court.
” ‘Moreover, once the record on appeаl is plumbed for facts bearing on the issue, the damage to the judicial process is done. An election to decide whether the record on appeal is adequate fоr decision on the issue not only adds to the burgeoning workload of appellate judges in a particular case, but makes a mockery of the repeated statement thаt the issue may not be presented for the first time on appeal.
” ‘To preclude, unequivocally and without cavil, presentation of the issue for the first time on appeal is not to deny the convicted an opportunity to present it. The rule does not deny presentation, it merely locates it.’ ”
Jackson v. State, 534 So.2d 689, 692 (Ala.Crim.App. 1988) (quoting United States v. Griffin, 699 F.2d 1102, 1108-09 (11th Cir. 1983)).
In light of this rationale, we will not make exception to the rule that a claim of ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court. We encourage counsel, whenever possible, to ascertain any possible defect in the trial process and to make an issue of that defect in an appropriate motion for a new trial. Failure to include a reasonably ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings.
We recognize that when an attorney is appointed to represent a defendant on appeal, it is unlikely that the reporter‘s transcript will be made available to him before the 30-day period within which to file a motion for a new trial has expired. Although some grounds for a new trial may be discovered in the absence of a transcript, the absence of a transcript may prevent appointed appellate counsel from ascertaining all of the grounds to support a motion for a nеw trial. Therefore, we hold that if the trial court appoints new counsel to represent the defendant on appeal, the trial court shall note that fact on the case action summary sheet, and shall also note that the time within which to file a motion for a new trial is extended in such case, provided the following occurs: If newly appointed сounsel files a motion with the court within 14 days after his appointment, requesting that the running of the time within which to file a motion for a new trial be suspended until such time as the reporter‘s transcript is prepared and filed, then in that event, the 30-day period within which to file a motion for a new trial shall be computed from the date the reporter‘s transcript is filed, which date shаll be entered on the case action summary sheet, rather than from the date of the pronouncement of sentence, as provided for in
Although
Turning to the facts of the present case, we hold that Jackson may file a petition for relief from his conviction under
“[A]ny person who has been convicted of a criminal offense may . . . institute a proceeding in the court of original conviction to secure appropriate rеlief on the ground that:
“(a) The Constitution of the United States or of the state of Alabama requires a new trial, a new sentence proceeding, or other relief.”
In Ex parte Lockett, 548 So.2d 1045, 1048 (Ala. 1989), this Court stated that “ineffective assistance of counsel claims are cognizable in Rule 20 petitions pursuant to Rule 20.1(a), Temp.A.R.Crim.P.”
Moreover,
“The standard this Court has adopted to test the effectiveness of counsel is stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That standard requires petitioner to shоw ‘that counsel‘s representation fell below an objective standard of reasonableness,’ and ‘that there is a reasonable probability that, but for counsel‘s unprofessiоnal errors, the result of the proceeding would have been different.’ ”
548 So.2d at 1048 (citations omitted). Thus, if Jackson is able to meet this burden, he will have a constitutional entitlement to relief under
Therefore, because of the availability of the procedure set out above, we hold that Jackson has not been denied his constitutional right to procedural due process. The judgment of the Court of Criminal Appeals is affirmed.
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS OVERRULED; AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.