*1 summary allegation not mention the trial court did The frivolous or aban- regarded have it as well judgment order pursued argu- at oral not show that it was The does doned. record ment, transcript no of the same. being there in- plaintiff claims because
First, 9-3-91 is not relevant OCGA § accrued, disability of action the date the cause capacity from af- eventuality by that statute. time, is addressed which latter ter that ostensibly applies. Only OCGA 9-3-90 § adverse sum- plaintiff not save from allegation does
The unmet pro- not affect the service of Any incapacity did mary judgment. such plaintiff’s counsel cess, abundantly from the affidavits of evident as delay problematic Plaintiff’s was to serve defendant. regarding efforts addresses, but complaint, which OCGA 9-3-90 filing Burks, Chapman v. Compare in serving rather defendant. (357 832) (1987).
App. 103 J., J., Birdsong, Judgment Pope, McMurray, C. P. affirmed. Andrews, Smith, JJ., Johnson, J., Blackburn concur. Cooper, P. J., not participating. — July Decided — July denied
Reconsideration Brinson, Neville, Jr., Callaway, appel- Neville & William J. for lant.
Goodman, Russell, McGuffey, Lindsey, Aust & Constance C. Wilco, Leigh appellee. M. THE
A93A0606. JEFFERSON v. STATE. Presiding Judge.
McMurray, Defendant Jefferson was convicted of 16 counts of armed rob- assault, bery, rape, five aggravated counts of ten counts of three sodomy, counts of aggravated and 23 other offenses for which he was years consecutively. sentenced to life terms and 375 to run judgment appeal, only convictions and were affirmed on in which the validity issue was the yielded the search and seizure which incrimi- v. nating evidence. Jefferson
Thereafter, void “petition filed a se correct be- petition sentences” the trial court. Denial of the reversed was required hearing, cause the trial court did not hold a (a). OCGA 17-10-2 Jefferson remand, Upon reimposed the trial court the same sentences de- followed. Held: previously given. This se fendant had been 1. first enumeration of error contends that Defendant’s court erred the assistance Wainwright, evidence. Since Gideon present argue mitigating years ago, 372 U. SC S. 335 LE2d it has *2 person constitutionally recognized been that charged a who stands adequate position with cannot to his give crime voice the right to be heard counsel. Thus it is settled that a criminal defend- ant is entitled to counsel at under the Sixth Amendment Amendment), (through the Fourteenth whenever sentencing pro- the ministerial, ceeding is more than it is stage because a critical the Green v. process. App. sentencing clearly Jefferson’s was more than ministerial be-
cause the appropriate pen- court had the discretion to determine an alty. remand, the
Prior to on defendant submit- lengthy ted to the court a “Legal handwritten document entitled Ar- gument Resentencing,” arguing favor of a lesser sentence than originally imposed, copy a of a filed him support brief his of corpus court, habeas superior action another and a cover letter. In letter, the defendant stated that is wrongly he an innocent man con- purpose victed and that submitting copy of a of the to brief “[t]he ” you is purpose for the sole of In ‘mitigation evidence.’ the habeas brief, corpus argued defendant that the evidence was insufficient convictions, support error, alleged prosecutorial the and he trial mis- conduct, and ineffective latter, assistance of trial counsel. to the he As complained that counsel did renew a defense for change motion of pretrial publicity venue on based and that question counsel did not police concerning why fingerprints perpetrator, of the left at crime scenes before defendant was arrested charged, were not sent the Investigation Federal Bureau of Apparently, for identification. petition corpus for habeas pending remained at the time the resen- tencing hearing. appeared
Defendant’s at presentence hearing transcript and is However, shown as representing him. imme- diately after beginning resentencing hearing, defendant as- attorney, serted that he had response no and in to the trial court’s trial, observation that he had had counsel at defendant indicated that attorney. had fired his trial Defendant stated that he wanted a attorney appointed different him present evidence and argue legal multiple issues to the colloquy related sentences. This continued for some time the trial informing with court defendant that he was not entitled to counsel of his choice. prosecuting own at- torney states reference to defendant and his counsel today. reading him ...” A fair attorney his with man has “[t]his trial counsel continued to re- transcript shows that defendant’s Indeed, at the presence him. of defendant’s trial counsel present repre- if anomaly longer be an he was no resentencing hearing would senting defendant. coop- implications of defendant’s refusal to
We must address the discharged that he with his trial counsel and announcement had erate cooperate appointed A refuse to him. effectively represented. Rivers v. and then claim he was not 1). “[A]ny act of defendant which effec- ‘trig- tively terminated his counsel would not have had effect of gering’ duty upon part of the trial court to another at- .. .” Durham v. 163,164 torney App. for defendant. 607). If the defendant does not have good reason for discharging court-appointed attorney, the trial court does not err requiring representation by to choose between Durham v. proceeding se. supra; Mock v. 525). While the principles counsel, cases cited for appointed these involve we see no principles reason the underlying equally should not be applicable where counsel is question retained or bono. The one whether *3 defendant’s conduct amounts to a waiver of his In to counsel. resentencing in judice, the case sub appeared defendant with counsel and was informed that appoint- he was not entitled to ment of counsel of choosing, yet his own he chose to refuse the ser- vices of his trial counsel. Under these circumstances it was within the discretion of the trial court to view defendant’s amounting conduct as State, to waiver of counsel. Mercier v. a 494, 495 (417 430). Thus, SE2d a notation on the sentence sheet that defend- appeared pro ant posture se is consistent with the he assumed at the sentencing hearing. pending
The claim of ineffective assistance at trial did not amount to a valid discharge reason for defendant to his trial counsel appointment and demand attorney. of a different The effectiveness claim created no conflict of interest between defendant and his trial counsel relevant to the issues In sentencing hearing. addressed at the McGuire v. 233, 850), 237-238 SE2d court held that there was no harmful error in appointing that defend- counsel, against ant’s trial whom an ineffective assistance of pending, represent claim was to appeal on to As this court. McGuire, arising none of the issues are from the ineffectiveness claim appeal involved recognized matter on and the trial court pending superior those issues were before not the another court and appeal court below from which this emanated. There was no violation Kemp, of Castell v. predicate of the ethical concerns which form 862 528). (331 ap If there was no harmful error in
pointing to on in Mc trial counsel defendant Berry Guire, Also, there is none here. see such recent cases as v. Nixon v. Ga. 7), 656, 657, Ga. fn. where there were claims of ineffec against appellate pending tive counsel. assistance at analysis adopted Furthermore, Amadeo applicable judice. 469, 471 is not the case sub requires request Amadeo the trial court consider a defendant’s preference, prefer- the counsel of his where the statement of supported objective consequence ence is considerations countervailing involved, there where are no there considerations comparable weight. distinguished However, Amadeo must be only applicable expressed the preference is facts since it where a defendant has particular attorney. for a See id. 470. The at defendant judice acquiring representation by the case sub an confidence, is not with concerned attorney developed relationship he whom has trust only replacing attorney is
but concerned with an displeased. expressed having any prefer- whom he is Defendant appointed replacement as counsel, ence quest to whom wants re- appointment governed by princi- of a different is ples predate which Amadeo. analysis applicable if Even the Amadeo facts, to these pending “objective against ineffective assistance claim trial counsel is an weight require appointment consideration” of sufficient attorney. argument aof different inef- defendant’s claim of precludes representation by fectiveness not the continued trial counsel is supported by any argument authority. or citation Nor can this premise App. holding be reconciled with our McGuire supra. charges 233, 237 While the of ineffectiveness raised against personal affect the relation- ship men, between these two it must be recalled that the Sixth guarantee meaningful relationship Amendment does not with defendant a attorney. Slappy, Morris v. 461 U. S. SC 610). LE2d analysis requires any *4 The Amadeo also of consideration counter- vailing Therefore, considerations. we must also consider the adverse requiring appointment effects of of substitute de- counsel whenever a fendant raises an of ineffectiveness counsel claim and demands change immediately during of Since counsel. occur or before delay requiring acquainted trial, while new counsel becomes with procedure places judicial process case, such a effective control of incompatible in hands of defendant and is with the efficient system. justice administration our criminal 2. The second enumeration of error contends the trial court
863
deprives him of
since this
him to
life sentences
sentencing
erred
Defendant’s
a determinate sentence.
process right
given
to be
a due
that under OCGA 17-10-
supposition
argument
predicated
§
(a)
specific
sentence for a
number
given
a determinate
he must be
State,
(2),
However,
years.
Jefferson
(a)
authorizes the trial
supra, we held that “OCGA
17-10-1
pre-
minimum and maximum
impose sentence ‘within the
judge to
” Thus,
imposi-
punishment
for the crime.’
scribed
law as the
imprisonment
of life
punishment
tion of the maximum
was not error.
offenses of which defendant was convicted
assertions,
court did not
“Contrary to
defendant’s
the trial
3.
sentences.
...
It is within the trial court’s
imposing
err
consecutive
17-10-10; Duckworth v.
consecutively. OCGA
discretion to sentence
Spivey v.
(2) (272
(1980);
Nor is denial of due involved. Prohibited behavior is statutes, possible punish- along described various criminal specific punishment ments. Notice that will be determined as a upon matter of discretion consideration of the facts and circum- provided stances of each case is also via statute. Andrews, Judgment J., Birdsong, J., Pope, C. P. affirmed. Smith, JJ., J., J.,
Blackburn Beasley, Cooper, concur. P. Johnson, J., participating. dissent. Presiding Judge, dissenting.
Beasley, respectfully I majority opinion dissent to Division resentencing. would hold that the case be remanded for I would not im- remaining they reach the divisions because relate to the sentences posed.
Although appeared Jefferson’s trial counsel at the him, is not hearing transcript and is shown on the it representing appointed by acting pro clear whether he was the court or was bono. However, ineffective Jefferson stated that had asserted claims of him; against proceed- assistance of that he had initiated this own; ing for a sentence on his had “come prison] (apparently down there to see me” after reversal of [to that Jefferson had judgment hearing) for lack of a sentence but *5 in gotten him had him 24 life sentences and because he “fired” opinion appellant could have received less time “without even own in counsel him concern- putting plea”; that had not consulted with pre-sentence that he .hearing; matters to be considered the ing represent appointed present him to ev- a different wanted legal argue multiple issues related to the sentences. idence and the Trial that the habeas court had a hear- counsel stated conducted had found Jefferson’s ineffective assistance claims to be “to- ing and merit, “I base . . . He am not tally without off and ridiculous.” said: him up to stand hear and allow to make such ridiculous state- going ments.” by his claims not been
Jefferson stated that had ruled on the court, nothing record in showing habeas and there the this case disposition the corpus proceeding the final habeas or when it oc- curred. sentencing noted court that the ineffective assistance claim repre-
was before another court but that trial had commented counsel circumstances, he sented Jefferson as best could under the that he do, required done law everything had the and that Jefferson attorney appointed was entitled to have another sentencing. for urged Jefferson he was present mitigating unable to evidence impliedly assistance counsel. The court denied the re- quest. asked, offer, any Counsel was nor argu- did he evidence or mitigation ment extenuation or on defendant’s behalf. Instead, based on a consideration of the written material submit- by report ted Jefferson by and the investigation probation department, reimposed the court the same sentences previously given. Jefferson had been The sentence sheet records appeared pro the defendant pro se. This se followed. As recognized by majority, Jefferson’s sentencing was more ministerial, than he was entitled to counsel at under the Sixth Amendment.
He asserted qualifies to counsel at what instance opportunity,” as “the first at hearing, the outset of the sentencing al- though could have moved the court advance of did, however, counsel. He notify pending the court of the corpus in issue, habeas which the effectiveness of at counsel was day sentencing. before See Dill v. 424) (1989). by
He did not filing waive counsel corpus petition alleg- a habeas ing ineffective assistance of counsel. by Nor did he re- waive counsel fusing his services sentencing purposes, as then the two ad- were parties pending itself, verse litigation involving representation demonstrated disposition the absence of a final of the habeas case, by corpus expressed counsel’s views on matter of defendant’s complaint against him, se had won the fact that defendant procedural deficiency in sen- of the sentences on a reversal tencing, had overlooked. which counsel Jefferson App. 687 unwilling course, if or Of counsel is not either unable may cooperate ap- ap- defendant, not refuse to the defendant (counsel pointed bono rather than here be effectively represented. pointed) claim he was not Rivers and then *6 (6) (298 1) (1982). State, 303, If SE2d the defendant does 250 Ga. 307 court-appointed attorney, good discharging not have reason representa- requiring in the court does not err tion to choose between by attorney proceeding State, se. Durham v. that 185 (363 607) (1) (1987); App. 163, Mock v. Ga. Ga. 164 SE2d SE2d 163 525) (1982) (no (293 “good for de- 320 and lawful reason” counsel). discharging Amendment fendant’s guarantee of Sixth does not “ ” relationship’ meaningful the ‘a between defendant and (103 610) Slappy, 1, 1610, v. 461 U. S. 14 SC LE2d counsel. Morris 75 (1983). sentencing, effect, in
Defendant did not have counsel for
as his
original
spoke only
corpus
to the issue of the habeas
proceeding,
claim of ineffective assistance. At the outset of the
court invited defendant and trial counsel to be heard on the issue of
sentence,
part
it,
but counsel did not address
no
because
doubt
representation.
compelled
defendant had refused his
Defendant was
proceed pro
argument
se,
to
and the court heard no evidence or
re-
garding sentence but relied instead on the documents which had been
pre-sentence report.
submitted in advance
defendant and the
Nor
argument regarding
did the court receive evidence or counsel-assisted
they
the ineffective assistance claims insofar
related
the issue of
to
sentencing.
inquiry
entitlement to other counsel for
Such an
could not
proceed anyway
appointed,
unless other counsel were
because counsel
Kemp,
cannot act as both counsel and witness. Castell v.
Whether to substitute to the counsel addresses itself Newby App. 805, sound v. discretion the trial court. (2), (288 ap- What is at issue here is pointment represent discharged of counsel to a defendant who has appointed by bono counsel or counsel In event the court. either court, chal- without a or evidence on the effectiveness lenge, dismissed it as unfounded insofar as it affected his v. other counsel. This case differs from McGuire 233, (1987), phase that it relates to a defendant; properly represent which counsel did not McGuire to the direct which carved out saved for another relates day case, the issue of at trial. In ineffectiveness Jefferson’s he had already respect. demonstrated ineffectiveness a crucial
In (1989), Amadeo v. Supreme Court held that the trial court had abused its discretion request appoint in denying defendant’s that the court trial counsel to penalty retrial a death case. See also Fleming 185) (1980) (as interest). factually conflict of This case is more akin to Amadeo than attorney-client the other cited since relationship cases between his trial appeal. defendant and had after his ended direct Citing People, Rptr. Harris 567 P2d Cal.
the Court in Amadeo today held that “while we reaffirm the basic holding . . . appointment the court’s discretion of counsel is not to be or limited constrained bare defendant’s statement of personal preference, we hold when preference, that statement of timely made, supported by objective considerations of the conse- involved, quence here there where are no countervailing consider- comparable weight, judicial ations it is an abuse of sound discretion deny request the defendant’s prefer- of his 471. ence.” Ga. at *7 “objective
Here the consequences” considerations of the of forc- ing proceed defendant with trial counsel or se mandated counsel, appointment of just other as such an examination of the cir- supra, cumstances Amadeo v. required appointment prior counsel, was sought. generally AmJur2d, See 21A Criminal Law, 982-987. §§
Defendant was entitled to other counsel so as to be accorded “reasonably counsel,” effective assistance of in the words of (6) (298 303, (1982). Rivers See also Cribbs v. The case (a). should be resentencing remanded for under OCGA 17-10-2 Brinson At the proceeding, represented defendant be against should whom no proceedings adverse are pending, unless waives defendant counsel.
I am Judge authorized to state Cooper joins dissent. — July
Decided July — Reconsideration denied Jefferson, John A. se. Attorney, Sheppard, R. Assis- Craig, Charles
Daniel J. District Attorney, tant District appellee. FIRE & SOUTHERN CASUALTY INSURANCE
A93A0628. BANK COMPANY v. NORTHWEST GEORGIA et al. FIRE & INSURANCE A93A0629. SOUTHERN CASUALTY BELL al. COMPANY v. et Presiding Judge. McMurray, (“estate”) Bank Georgia The estate of Bell and Northwest (“bank”) Casualty Company Fire & brought against suit Southern Fire”) (“Southern covering premises to collect insurance business oc- (“Woodruff”). cupied by John R. and W. W. Auto Parts Woodruff party was Woodruff named as a he cross-claimed against seeking proceeds pen- insurance Southern Fire bad faith alties under OCGA 33-4-6. summary judgment.
The estate and moved for the bank Southern for summary judgment regard Fire moved bad Woodruff’s penalties upon faith claim. summarize We the evidence adduced Immediately Fire’s Southern motion as follows: after busi- Woodruffs fire, premises caught ness an investigation was commenced. The investigators likely concluded that arson was cause. Their conclu- pouring liquids sion was based on the flammable the business office, as well as a disengaged system. alarm Evidence in- of motive $24,000 cluded in the business’ short-term of op- liabilities. Evidence portunity included the fact that Woodruff person was last to leave the building before caught jury it on fire. grand also concluded fire, arson was the cause as it returned an indictment against Woodruff.
The trial court granted summary judgment to the estate and bank; it denied Southern Fire’s regard motion with bad Woodruff’s faith penalties meantime, claim. appealed. Southern Fire In the Fire Southern Thus, settled with the estate primary and the bank. issue to be decided on is the Held: issue of faith vel bad non.
1. Southern Fire’s motion to strike the references Woodruffs *8 deposition brief to the of Thomas C. Russe is denied. The trial court did supple- not abuse its ordering discretion record be deposition (f). mented with the of Russe. OCGA 5-6-41 2. “To support in- 33-4-6, a cause action under OCGA sured bears the burden proving the refusal claim pay Williamson, bad faith. Interstate &c. Co. was made Ins. Life Cohen, 668) (1964); Royal Ins. Co. ‘A far going defen[s]e