A Newton County jury convicted Nathaniel Jordan of possession of cocaine, OCGA § 16-13-30 (a), and giving a false name to a police officer, OCGA § 16-10-25. Following a hearing, the trial court denied Jordan’s out-of-time motion for new trial. Jordan filed this appeal, contending that he received ineffective assistance of counsel and that the trial court erred in denying his request for a continuance to secure other counsel.
1. “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citations and punctuation omitted.)
Rowland v. State,
The record shows that Jordan initially filed a “motion for permission to file out-of-time motion for new trial.” Apparently, Jordan accepted the trial court’s instruction that the law does not recognize such a motion and then filed an “extraordinary motion for new trial” asserting the same arguments. In denying Jordan’s (extraordinary or out-of-time) motion for new trial, the trial court ruled on his substantive claims that his trial counsel provided ineffective assistance in failing to interview and subpoena essential witnesses and that the trial court abused its discretion in denying his motion for a continuance of the trial to secure replacement trial counsel.
Although Jordan conceded at the hearing that his motion was an extraordinary motion for new trial, we are mindful that “[t]here is no magic in mere nomenclature,” and “[p]leadings are construed to serve the best interests of the pleader, and are judged by function rather than name.” (Citations and punctuation omitted.)
Brown v. State,
Because Jordan asserted that his trial counsel rendered ineffective assistance and that the trial court committed error in denying his motion for a continuance — both issues that could have been asserted in a
timely
motion for new trial — Jordan’s motion was not properly categorized as an extraordinary motion for new trial.
Balkcom v. State,
2. Jordan contends his trial counsel rendered ineffective assistance in his preparation for trial.
Under the standard established in Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), one asserting his trial counsel’s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.
(Citation and punctuation omitted.)
Veal v. State,
Jordan was arrested for giving false information to a law enforcement officer after police responded to a 911 call about an assault victim knocking on doors and asking for help. As the responding officer interviewed Jordan about what had happened to him, Jordan gave three different dates of birth and two false names. While Jordan was being booked on the charge of giving false information, an officer found a small amount of cocaine in Jordan’s pocket, and Jordan was charged with possession of cocaine.
Jordan contends his trial counsel’s performance was deficient in failing to identify and interview the 911 caller and in failing to interview Jeff King, a witness who had been with Jordan until shortly before Jordan was assaulted. Jordan wanted to show that the young men who assaulted him planted the cocaine in his pocket. At the new trial hearing, Jordan’s trial counsel explained that, after discussing those potential witnesses with Jordan, counsel concluded that the possible benefit from the testimony of each of those witnesses did not outweigh the strategic advantage of retaining the right to opening and closing arguments by offering no defense evidence. Trial counsel’s valid strategic reasons for not pursuing such minor witnesses do not equate with ineffective assistance of counsel. See
Gurr v. State,
3. Jordan contends the trial court abused its discretion in denying his motion for a continuance of the trial to secure other counsel. The motion for a continuance, made five days before trial, was based on Jordan’s lack of confidence in trial counsel’s ability and disagreement with his advice and strategy. Jordan failed to articulate any basis for his dissatisfaction, however, and failed to show how a continuance would have affected the outcome of the trial. “Denial of [a] continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay.”
Stephens v. State,
Judgment affirmed.
Notes
But see Daniel, Ga. Criminal Trial Practice, § 28-12, p. 886 (1999 ed.) (any motion for new trial filed more than 30 days after entry of judgment is an extraordinary motion for new trial);
Dick v. State,