King v. State

Justice George H. Carley.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant urges that the trial court considered inadmissible evidence during the sentencing phase. “Where the record has shown that illegal evidence has been considered in the presentence hearing, the appellate courts have generally granted a new trial on the issue of punishment. . . . [Cits.] . . . ‘Nevertheless, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision ([cit.]).’ ” (Emphasis supplied.) Workman v. State, 137 Ga. App. 746, 749 (7) (224 SE2d 757) (1976).

The record in the instant case shows that the evidence which appellant now contends to be inadmissible was admitted without objection. Thus, there was no affirmative ruling by the trial court on the admissibility of the evidence. The record further shows that the trial court enumerated its reasons for imposition of the sentences and did not include therein the evidence which appellant now contends to be inadmissible. “ [I]n the absence of any indication that [the trial court] *78relied on the material ... , we find the presumption to be'unrebutted, and that no error was committed.” Watkins v. State, 191 Ga. App. 87, 92 (8) (381 SE2d 45) (1989).

2. Within the 30 days following the trial court’s entry of a judgment of conviction and sentence on the jury’s guilty verdict, appellant secured new counsel who filed the instant appeal and raised the issue of the effectiveness of appellant’s trial counsel. The State urges that this issue has been waived because appellant’s new counsel elected to file an immediate appeal to this court rather than to pursue a motion for new trial in the trial court.

Several cases of this court, including Buchanan v. State, 200 Ga. App. 416, 417 (2) (408 SE2d 721) (1991); Williams v. State, 202 Ga. App. 650, 651 (2) (415 SE2d 67) (1992); and Lee v. State, 205 Ga. App. 659, 660 (6) (423 SE2d 29) (1992), support the State’s contention that the issue has been waived. Those cases are, however, in conflict with controlling Supreme Court authority. Sixayaketh v. State, 261 Ga. 690, 691 (2) (410 SE2d 112) (1991). Those cases are also in conflict with this court’s controlling whole-court authority. “The record shows that appellant’s appellate counsel filed a timely notice of appeal. . . . Under these circumstances, neither Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) nor Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988) are authority for the proposition that the issue of the ineffectiveness of appellant’s trial counsel has been waived. ‘In the present case, appellate counsel did not represent (appellant) at trial or at [a] motion for new trial. Therefore, the requirement of Thompson that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. . . . (T)he requirement of Dawson v. State, supra, that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. . . . Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing at this point.’ [Cit.]” Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990).

The whole-court decision in Parrish has since been recognized as controlling and applied. “Although appellant’s current attorney made her appearance of record before the expiration of the 30[-]day period for the filing of a motion for new trial under OCGA § 5-5-40 (a), no motion for new trial was filed. Nonetheless, under this court’s holding in Parrish v. State, [supra], the lack of any opportunity for a hearing before the trial court requires that we remand this case for an evidentiary hearing on the issue of the asserted ineffectiveness of appellant’s *79trial counsel.” Adams v. State, 196 Ga. App. 804, 806 (2) (397 SE2d 153) (1990). See also Brady v. State, 207 Ga. App. 451 (2) (428 SE2d 373) (1993).

It follows that insofar as Buchanan, supra at 417 (2); Williams, supra at 651 (2); Lee, supra at 660 (6), and any other decision of this court holding that the issue of the effectiveness of trial counsel has been waived if new counsel elects to file a direct notice of appeal rather than a motion for new trial, they are contrary to the controlling authority of the Supreme Court and this court’s whole-court decision in Parrish v. State, supra at 762 (4), and they are hereby overruled. Accordingly, the instant “case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of [appellant’s trial counsel]. ‘If the trial court finds (appellant) was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to (appellant), (appellant’s) right to appeal that order within thirty days is preserved. (Cit.)’ [Cit.]” Parrish v. State, supra at 762 (4).

Judgments affirmed and case remanded with direction.

McMurray, P. J., Birdsong, P. J., Cooper and Andrews, JJ., concur. Pope, C. J., Beasley, P. J., Johnson and Blackburn, JJ., concur specially.