Aрpellee Jammie K. Moody was convicted of armed robbery and aggravated battery in Coffee County and sentenced to a 20-year term of imprisonment in 2002. His conviction was affirmed by the Court of Appeals in an unpublished opinion.
Moody v. State,
271 Ga. App. XXV (2005). Moody filed a petition for writ of habeas corpus in the Superior Court of Chatham County where he asserted he was not afforded his constitutional right to effective assistance of counsel at trial and on appeal. See
Evitts v. Lucey,
1. In order to avoid a waiver of a claim of ineffective assistance against trial counsel, the claim must be raised at the earliest practicable moment, and that moment is “before appeal if the opportunity to do so is available....”
Glover v. State,
2. There is no dispute that a convicted defendant is entitled to effective assistanсe of counsel on direct appeal. See
Evitts v. Lucey,
supra,
*668 The issue to be decided by the habeas court is at what point counsel is in a conflict that infringes upon his сlient’s constitutional right to conflict-free appellate representation. In granting habeas relief upon finding that counsel’s occupation of the dual roles of trial and appellate counsel constituted an actual conflict of interest when the client wished to assert that trial counsel had rendered ineffective assistance of counsel, the habeas court implicitly determined that appellate counsel was in a state of actual conflict of interest either when he failed to assert in the motion for new trial a claim of ineffective assistance of trial counsel despite Moody’s desire that it be raised, or when counsel failed to withdraw from representation of Moody as soon as Moody expressed a desire to assert a claim of ineffective assistance. We address both possibilities seriatim.
While an accused has the ultimate authority to make certain fundamental decisions regarding the casе such as whether to plead guilty, waive a jury, testify, or take an appeal, an indigent defendant does not have a constitutional right “to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.”
Jones v. Barnes,
[I]n determining under the first Strickland prong whether . . . appellate counsel’s performance was deficient for failing to raise a claim, “the question is not whether (an appellate) attorney’s decision not to raise the issue was correct or wise, but rather whether [the] decision was an unreasonable one which only an incompetent attorney would adopt.” [Cit.]
Battles v. Chapman,
The alternate finding of actual conflict of interest — that counsel was in a state of constitutional conflict when he did not withdraw from the case upon Moody’s assertion that he believed himself to be a victim of ineffective assistance of trial counsel — is not supported by the record because the motion in which it was raised was unauthorized and without effect. Moody expressed his contention that trial counsel’s representation fell below the constitutional standard in a pro se motion he filed while he was repre
*669
sented by trial counsel.
5
As we noted in
Garland,
supra,
*669 For the reasons stated above, the habeas court erred when it granted relief on the ground that Moody had been denied his constitutional right to conflict-free appellаte representation. Accordingly, we reverse the habeas court’s grant of relief and remand the case to the habeas court for further review of Moody’s claims for relief.
Judgment reversed and case remanded with direction.
Notes
Moody set out 22 instances in which counsel purportedly performed deficiently in his role as trial counsel and 11 instances in which counsel purportedly performed deficiently in his role as appellate counsel.
The record reflects that Moody was sentenced on November 22, 2002, and on December 11, 2002, filed a pro se motion seeking the appointment of appellate counsel based on his contention that his conviction “is the result of ineffective assistance of counsel.” The trial court appointed Geоrge McCranie IV as Moody’s appellate counsel on December 11, 2002; however, the record does not reflect that Mr. McCranie ever acted on behalf of appellant. The record contains only one item filed by Mr. McCrаnie, a request for a leave of absence. The record also does not contain a withdrawal from representation filed by trial counsel. The motion for new trial was filed by trial counsel on December 19, 2002, and did not raise ineffectivе assistance of counsel. On February 9, 2004, trial counsel represented Moody at the hearing on the motion for new trial, where ineffective assistance of counsel was not mentioned. Trial counsel represented Moody in his direct appeal to the Court of Appeals and did not raise ineffective assistance at that stage.
Moody did not allege and the habeas court did not consider whether the attorney appointed by the trial court to serve as Moody’s рost-trial counsel rendered ineffective assistance of appellate counsel, most likely because there is no record of any action taken on behalf of Moody by the appointed post-trial counsel.
Sixth Amendment conflict-of-interest jurisprudence generally is confined to situations where the purported conflict stems from the attorney’s simultaneous representation of multiple clients involved in the same legal issue. See
Wood v.
Georgia, supra,
The motion was filed nineteen days after sentence was imposed on appellant and one week before counsel filed a motion for new trial. The pro se motion stated without elaboration that “Defendant contends that his conviction is the result of ineffective assistancе of counsel” and that “Defendant will raise the claim of ineffective assistance of counsel [at the hearing on the motion for new trial].”
In
Garland v. State,
supra,