dissenting.
In my view, the habeas corpus court erred in determining that Thomason’s counsel rendered ineffective assistance in the sentencing phase. Moreover, although I would agree that the cross-appeal lacks merit, I would hold that this Court is without jurisdiction to entertain it. Accordingly, I respectfully dissent.
1. The evidence at trial showed that Jerry Self arrived at his home on August 21, 1992, and discovered an unfamiliar automobile parked in his driveway. Mr. Self parked his truck behind the unfamiliar automobile, telephoned the police, and sat waiting. The evidence strongly suggested that Thomason, who had entered Mr. Self’s home by breaking a front window, took Mr. Self’s .357 caliber handgun from inside the home, exited through the back basement door to avoid Mr. Self’s attention, climbed over a fence, came around the home through a wooded area, opened the passenger door of Mr. Self’s truck, and fired repeatedly at him. Thomason then pulled Mr. Self’s body out of the truck and onto the driveway, drove the truck to the front yard, and hastily fled in the automobile in which he had arrived. Two officers approaching Mr. Self’s home carefully observed Thomason fleeing alone in the automobile and radioed a description of both the automobile and Thomason. Thomason was captured soon thereafter in the suspect automobile with Mr. Self’s blood on his clothing in a location consistent with his having sat in the driver’s seat of Mr. Self’s truck. Mr. Self’s engraved lighter, as well as jewelry *443from another burglary committed earlier that same day, were discovered in Thomason’s pockets. The automobile was leaking transmission fluid, which explained the puddle of transmission fluid found at the scenes of both burglaries. The automobile also had tires with unusual wear patterns that corresponded to marks on Mr. Self’s driveway, and it contained specially-folded two dollar bills similar to those Mr. Self had collected.
The habeas court vacated Thomason’s death sentence on the ground that Thomason’s trial counsel rendered ineffective assistance in preparing and presenting mitigating evidence in the sentencing phase of the trial. In that phase, the State put up evidence of Thomason’s extensive criminal history. Testimony from Thomason’s witnesses showed that Thomason had been treated at Charter Peach-ford Hospital, suggested that he was a non-violent and easily-led person, and highlighted his family’s sacrifices on his behalf and their hope that he not be sentenced to death. Thomason himself testified about his own remorse.
An ineffective assistance claim must demonstrate both that counsel performed deficiently under constitutional standards and that the deficiency prejudiced the defendant to the extent that it in reasonable probability changed the outcome of the criminal proceeding. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783-784 (1) (325 SE2d 362) (1985). Counsel are “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. Furthermore, counsel’s decisions and strategy choices must be evaluated in reference only to the circumstances at the time of trial and trial preparation. Id. at 689-690.
Whether counsel rendered ineffective assistance is a mixed question of law and fact. On appeal, this Court accepts the lower court’s findings of fact unless they are clearly erroneous; but it must independently apply those facts to the law. Strickland, 466 U. S. at 698; Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). Accepting the lower court’s findings of fact, and applying those facts to the law, leads me to conclude that trial counsel did not render ineffective assistance.
In the years leading up to Thomason’s trial, trial counsel surmised that mental health issues were potentially relevant both to a competency trial and to the sentencing phase of a death penalty trial. The trial court granted Thomason’s request for a court-funded examination of Thomason by a psychologist named Dr. Samuel Perri. Trial counsel also successfully moved the trial court for funding for assistant counsel and for 50 hours of private investigation, which investigation was to include “all matters which may have a bearing *444on mitigating factors.” Trial counsel then successfully moved the trial court ex parte for an additional $3,500 for an initial psychiatric examination of Thomason to be conducted prior to the competency trial by James Cheatham, M.D.
Trial counsel forwarded Dr. Cheatham a check for $3,500, a copy of the indictment, and a copy of Dr. Perri’s report. After Dr. Cheatham’s initial examination of Thomason, trial counsel made an ex parte request for additional funding of $25,000. Trial counsel explained to the trial court that he had met with Dr. Cheatham at trial counsel’s home to discuss the case the evening after Dr. Cheatham’s initial examination of Thomason. In that regard, trial counsel also provided the trial court with a copy of a letter from Dr. Cheatham outlining additional work Dr. Cheatham proposed for a minimum fee of $25,000.
The trial court withheld a decision on the request and provided trial counsel with orders with which to obtain Thomason’s school records, incarceration records, and Charter Peachford Hospital records. Trial counsel provided the trial court with a copy of the records, and, in a subsequent ex parte hearing, trial counsel argued that the records raised sufficient concerns to warrant the granting of $25,000 for Dr. Cheatham’s proposed work or, alternatively, for the granting of one-third of that amount for preliminary work and the opportunity to renew the motion for additional funds. The trial court denied both alternative requests, and this Court found no error on direct appeal, holding that the records before the trial court did not demonstrate that additional mental health evaluation was “critical to Thomason’s defense” or that denial of such additional evaluation had rendered Thomason’s trial “fundamentally unfair.” Thomason v. State, 268 Ga. 298, 311 (7) (486 SE2d 861) (1997).
Much of what the habeas court found lacking in Thomason’s trial counsel’s performance in the sentencing phase regards Thomason’s school records and the records from his three-month period of inpatient psychiatric treatment at Charter Peachford Hospital. However, these are the same records that were before the trial court during trial counsel’s ex parte request for additional evaluation by, and at the direction of, Dr. Cheatham and the same records that were before this Court on direct appeal.
Thomason’s school records revealed that Thomason suffered from dyslexia, performed poorly, repeated grades several times, and had poor self-esteem. However, the records also included a great deal of information that would not have been mitigating. Thomason is described in the school records as having been hot tempered, confident to a fault, resentful toward authority, unwilling to accept correction, lacking in impulse control, lacking in anger control, defiant, abusive to others, lazy, lacking in respect of other people’s property, *445and having “a thick candy shell.” The school records also included intelligence quotient scores of 90, 94, 100,109, and 119, which placed Thomason somewhere in the range of lower-average to average intelligence.
The Charter Peachford Hospital records indicated that Thomason’s father had required Thomason to submit to treatment as a precondition for Thomason’s being bailed out of jail, where Thomason had landed after disappearing, from home for days and then being arrested for stealing and forging checks. Thomason received a final diagnosis of major depressive disorder, cannabis dependence, and amphetamine abuse. The records of his treatment included arguably mitigating references to his low self-esteem, his education failures, the fact that his parents enabled his drug use and rebellion by being overly permissive and somewhat in denial, the fact that he had a family history of substance abuse suggestive of a genetic predisposition to addiction, the fact that he had been introduced to drugs as early as eight years of age, and the fact that he cooperated at least some of the time in his own treatment. The records also showed, however, that Thomason was highly manipulative, was deceptive, had anti-social tendencies, was resistant to authority figures, refused at times to study or to participate in his treatment, lied to avoid studying, cheated on his GED work, had stolen from his parents in the past, likely stole an audiotape from the hospital, had an intelligence quotient of 94, and thought that he had a good relationship with his parents and that their lack of discipline was because they “love[d him] too much.”
Thomason’s lead trial counsel testified before the habeas court that he considered using Thomason’s records at trial without the assistance of an expert but that he “did not think that that was the main issue,” that portions of the records were helpful and other portions were damaging, and that he “didn’t know how to use [the records] properly” without expert testimony. Thomason’s assistant counsel testified by deposition in the habeas proceeding that he had discussed the records with lead counsel, that they found the records to be “valuable . . . [b]ut not standing alone[,]” and that they felt they should not use the records at trial without an expert “to interpret them and to explain them and provide some sort of background and an understanding of why these things are relevant to finding a reason not to put somebody to death.”
Given the mixture of aggravating and mitigating information in the records and given counsel’s consideration of strategy prior to making a decision not to use them, this Court would not be authorized to find that counsel had rendered ineffective assistance in foregoing use of the records at trial unless other circumstances shed an entirely different light on the matter. The habeas court addressed *446one such alleged circumstance, namely, that trial counsel allegedly rendered ineffective assistance in seeking additional funds for Dr. Cheatham’s services.
Trial counsel’s and Dr. Cheatham’s testimonies are somewhat at odds. Dr. Cheatham gave habeas affidavit testimony claiming that he had not fully billed against the initial funds he had been provided prior to trial and that he “perhaps” would have been willing to do additional work for a reduced, or even no, fee. Trial counsel testified before the habeas court that the initial fee was for an initial examination, that Dr. Cheatham required additional money before reviewing Thomason’s records, and that Dr. Cheatham never offered to work for free. The habeas court’s finding of fact resolving conflict between Dr. Cheatham’s habeas affidavit testimony (wherein he speculated as to what he “perhaps” would have been willing to do), and the different view suggested by the trial record and the habeas testimony of trial counsel is highly suspect. However, that finding does not demonstrate trial counsel’s constitutionally deficient performance even if assumed correct. The record of ex parte hearings, briefs in the trial court, and letters to and from trial counsel and Dr. Cheatham all demonstrate the reasonableness of trial counsel’s belief that all of the funds already paid to Dr. Cheatham had been for the initial competency evaluation that he had already performed and that no other work would be possible without additional funds. The fact, if assumed true, that Dr. Cheatham “perhaps” would have done, or even would have done, some additional work without further funds does not demonstrate trial counsel’s constitutionally deficient performance as judged in reference to the circumstances confronting them at the time.
Again, this Court must consider the effectiveness of trial counsel’s assistance to Thomason within the context of circumstances at the time. The portions of Dr. Cheatham’s habeas testimony which address Thomason’s records and the background information available to trial counsel at the time of Thomason’s trial are not so compelling that there in reasonable probability would have been a different decision by the trial court regarding additional funds or a different outcome at trial. Those portions of Dr. Cheatham’s habeas testimony are, in fact, little different from the arguments that trial counsel himself made to the trial court from the records and that the trial court did not find sufficiently critical to warrant additional court funds. Thus, I would find that Thomason failed to demonstrate deficient performance or prejudice with regard to the manner in which his trial counsel sought additional funds for expert mental health assistance.
The habeas court also addressed a number of other pieces of evidence that the habeas court found mitigating and that were *447addressed in Dr. Cheatham’s habeas testimony. In addition to noting references in Thomason’s school and Charter Peachford Hospital records about Thomason’s learning disability, psychological and/or behavioral problems, failures in school, and drug use and addiction, the habeas court also noted new affidavit testimony presented for the first time in the habeas court. However, all of this new testimony was either unavailable to trial counsel after their reasonable investigation of Thomason’s case or was not sufficiently compelling to authorize a finding that pretrial and trial use of such testimony in reasonable probability would have changed the outcome of the sentencing phase of Thomason’s trial.
Trial counsel were not without a sound strategy for arguing mitigating circumstances in the sentencing phase of Thomason’s trial. Lead trial counsel described his strategy as follows before the habeas court: “My strategy was not a guilt or innocence strategy, it was a minimization of damage strategy. And, again, it was designed to prevent the death penalty.” At the guilt/innocence phase, trial counsel had emphasized the alleged lack of evidence indicating that Thomason had been the triggerman and the possibility that there had been an accomplice. In the sentencing phase, trial counsel continued and refined this theme, with witnesses indicating that Thomason was a non-violent and sensitive person, was a follower, was led astray by others into drugs and crime, and had never acted alone in his previous crimes. Thomason’s witnesses also pleaded with the trial court for mercy. Thomason himself became tearful in the courtroom and gave testimony about his own remorse. Counsel then argued that Thomason’s case was less aggravated than other cases the trial court would have seen, emphasized Thomason’s emotional response in the courtroom, emphasized the “unrehearsed” nature of Thomason’s witnesses, emphasized that the evidence put forward by the State regarding Thomason’s past crimes showed that he had always acted with an accomplice, and asserted that “this is not a death penalty case.” I believe that this sentencing phase strategy was reasonably chosen by trial counsel after their reasonable efforts to investigate other, alternative strategies.
In conclusion, the record in this case, as the discussion above illustrates, does not support Thomason’s claim of ineffective assistance regarding trial counsel’s preparing and presenting mitigating evidence in the sentencing phase. Counsel gathered potential evidence in a reasonable manner and presented selective portions of that evidence in a manner which was consistent with their chosen strategy.
2. The timely filing of a notice of appeal or notice of cross-appeal is necessary to confer jurisdiction upon this Court. See Fullwood v. Sivley, 271 Ga. 248 (517 SE2d 511) (1999). Failure to comply with the *448statutorily-imposed time requirements for appeal results in dismissal where an unsuccessful habeas petitioner has been advised of the proper appellate procedure by the habeas court or where, as here, the petitioner is represented by counsel. See Hicks v. Scott, 273 Ga. 358-359 (541 SE2d 27) (2001) (excusing the untimely filing of an application for certificate of probable cause to appeal by a pro se appellant who was not advised of appellate procedure).
The Warden filed a timely notice of appeal on April 24, 2002, and he served a copy of the notice of appeal on Thomason by placing the copy in the mail the previous day, April 23, 2002. Thomason’s notice of cross-appeal was filed on May 10, 2002, which was 16 days after the Warden’s notice of appeal was filed and which, more importantly, was 17 days after the copy of the Warden’s notice of appeal was served by mail.
An “appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant.” OCGA § 5-6-38. Service by mail of a notice of appeal is “deemed to be perfected as of the day deposited in the mail.” OCGA § 5-6-32.
Because Thomason’s notice of cross-appeal was filed 17 days after the date reflected in the Warden’s certificate of service of the notice of appeal, it was not timely filed, and the cross-appeal should be dismissed. See Southern Discount Co. v. Ector, 152 Ga. App. 244, 247 (3) (262 SE2d 457) (1979), rev’d on other grounds, 246 Ga. 30 (268 SE2d 621) (1980).
Although OCGA § 9-11-6 (e) adds three days to a prescribed period when a party is required to act in a civil action and notice is served by mail, that Code section has no application with regard to the time within which a notice of cross-appeal must be filed. As noted above, the Appellate Practice Act speaks to the time period within which a cross-appeal must be filed. The Act requires a notice of cross-appeal to be filed within 15 days of the service of the notice of appeal, OCGA § 5-6-38, and it specifies that a notice of appeal is served when it is deposited in the mail. OCGA § 5-6-32. Thus, even if the Civil Practice Act were somehow grafted to the Appellate Practice Act, OCGA § 9-11-6 (e) would not control this cross-appeal.
The majority’s reliance upon Southern Guar. Ins. Co. of Ga. v. Goddard, 190 Ga. App. 97, 98 (1) (378 SE2d 130) (1989), and Nat. Consultants v. Burt, 186 Ga. App. 27, 28 (1) (366 SE2d 344) (1988), is misplaced. Southern Guaranty referenced OCGA § 9-11-6 (a) and did not concern the time for filing a cross-appeal. National Consultants did not hold that OCGA § 9-11-6 (e) applies to a cross-appeal. In that case, the Court of Appeals dismissed the cross-appeal, pointing out that it was untimely even if OCGA § 9-11-6 (e) were applied in favor of the cross-appellant.
*449Decided March 24, 2003 Reconsideration denied April 10, 2003. Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Patricia A. Burton, Mitchell P. Watkins, Assistant Attorneys General, for appellant. Thomas H. Dunn, Feinberg & Kamholtz, Matthew Feinberg, Matthew Kamholtz, for appellee.I am authorized to state that Justice Sears joins in Division 2 of this dissent.