Oldham v. State

Beasley, Judge,

concurring specially.

I agree with the opinion but I understand it to deal only with the federal constitutional claim. It applies the tests regarding ineffective assistance of counsel enunciated by the U. S. Supreme Court to determine whether counsel measured up to the Sixth Amendment’s mandate. Webb v. State, 178 Ga. App. 725 (344 SE2d 660) (1986), referenced by the majority, also treated only a federal constitutional claim. Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974), does not easily reveal its basis, but in any event the U. S. Supreme Court has adopted the same standard set out there, for application of the Sixth Amendment. Pitts ruled that effectiveness of counsel was to be measured “upon the reasonable effectiveness of counsel at the time the services were rendered.” Id. at 639. Later, Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) ruled that “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness . . . The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 687-688. This is the standard for measuring whether counsel’s representation is “deficient,” the first prong of the Sixth Amendment test.

On appeal, Oldham raises and argues separate claims under the federal and state constitutions. Below, he did not make a distinction and in fact cited no authority, much less either constitution, as the basis for the claim which he presented in an amendment to his motion for new trial. The trial court simply denied the motion without further elaboration. Thus the record was not perfected and we do not know whether both constitutions were invoked as grounds or whether only one was. Since this is a court of review, ordinarily “grounds which may be considered on appeal are limited to those which were urged below, and this court will not consider questions raised for the first time on appeal.” Hawkins v. State, 175 Ga. App. 606, fn. 1 (333 *732SE2d 870) (1985). It has been plainly put many times: “ ‘Grounds which may be considered on appeal are limited to those which were urged before the trial court. (Cit.)’ Kingston v. State, 127 Ga. App. 660, 661 (194 SE2d 675).” Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982). They cannot be enlarged on appeal. Kent v. Henson, 174 Ga. App. 400, 403 (330 SE2d 126) (1985). Thus it is not only issues which must be raised and preserved, but also the particular grounds a party might want to pursue before an appellate court; these bases for the position taken on the issue must also first be tested before the trial court.

Decided July 10, 1986 John L. Conley, for appellant. Frank C. Winn, District Attorney, for appellee.

Apparently, the majority assumed that the federal ground was raised in, and ruled on by, the trial court. That is a fair assessment, given the practice of attorneys and courts in recent years.

Thus we do not reach the state constitutional issue. In this regard see Davenport v. State, 172 Ga. App. 848, 850 (2) (325 SE2d 173) (1984). Whether the federal test fashioned for the Sixth Amendment has been adopted' by the Georgia Supreme Court for the application of the state constitutional right under Ga. Const. Art. I, Sec. I, Par. XIV has not been made plain. See Brogdon v. State, 255 Ga. 64, 67 (3) (335 SE2d 383) (1985). As to plain statements, see Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983).1

The Sixth Amendment guarantees “the Assistance of Counsel for his defence.” The Georgia Constitution guarantees “the privilege and benefit of counsel.”