Opinion
A05A0891
DECIDED: AUGUST 15, 2005
Delmer Gene Swan was indicted on charges of possession with intent to distribute methamphetamine and possession of a firearm during the commission of a crime. A Cherokee County jury convicted Swan of the lesser included offense of possession of methamphetamine and acquitted him on the possession of a firearm charge. Swan was sentenced as a recidivist to 30 years to serve. On appeal, Swan argues that he received ineffective assistance of counsel and that the trial court erred by sentencing him as a recidivist. We affirm.
Swan's ex-wife, Virginia Louise Swan, was also indicted on these charges, and was convicted on the possession with intent to distribute charge.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia. "The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." So viewed, the evidence shows that at approximately 8:45 p.m. on March 9, 2000, Swan was at the home of Virginia Swan, his ex-wife and co-defendant, attending his birthday party celebration when the Cherokee Multi-Agency Narcotics Squad executed a search warrant at the residence. An officer from the agency, Jamie Gianfala, testified that he found suspected methamphetamine in the bathtub in the master bedroom and a bag of marijuana on the bedroom floor. He also noticed a silver box that contained drug paraphernalia and a handgun on the bed. Upon further investigation, the silver box contained corner-cut baggies of suspected methamphetamine, a small handgun, and a piece of paper with Virginia Swan's name on it. Another officer found a set of scales in a dresser drawer in the master bedroom.
Paul v. State, 231 Ga. App. 528 ( 499 SE2d 914) (1998).
443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
(Footnote omitted.) Christopher v. State, 262 Ga. App. 257 ( 585 SE2d 107) (2003).
Gianfala testified that while he searched the bedroom, other agents detained Swan in the living room. Gianfala handcuffed Swan, after which other officers searched him and found suspected methamphetamine and a handgun. One of those officers testified that he located the baggie of suspected methamphetamine in the watch pocket of Swan's blue jeans.
1. For the first time on appeal, Swan argues that his trial counsel was ineffective for two reasons: (1) he failed to introduce evidence that the jeans that Swan was wearing at the time of his arrest did not have a watch pocket; and (2) he failed to object to the trial court's decision to sentence Swan as a recidivist.
It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. Our Supreme Court has clearly stated that the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising that issue at a later time.
(Citations and punctuation omitted; emphasis supplied.) Landers v. State, 236 Ga. App. 368, 370 (3) ( 511 SE2d 889) (1999).
The trial court entered the judgment and sentence on the jury's verdict on March 27, 2001. Trial counsel filed a motion for an out-of-time appeal on May 9, 2002. New counsel was assigned to represent Swan on June 14, 2002. Swan's motion for an out-of-time appeal was granted on July 31, 2003, and his new appellate counsel filed his notice of appeal on August 25, 2003.
The grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.
(Punctuation and footnote omitted.) Brooks v. State, 267 Ga. App. 663, 664-665 (2) ( 600 SE2d 737) (2004). Accord Sweet v. State, 276 Ga. 545, 547 (3) ( 580 SE2d 231) (2003); Milliken v. State, 259 Ga. App. 144, 146 ( 575 SE2d 910) (2003).
Accordingly, Swan's failure to file a motion for new trial asserting the ineffectiveness of his trial counsel bars our review of that claim.
Chatman v. State, 265 Ga. 177, 178 (2) ( 453 SE2d 694) (1995); Milliken, supra.
2. Swan contends that the trial court erred when it sentenced him under the recidivist statute because one of the three felony convictions utilized to do so arose out of a first offender sentence.
The state introduced certified copies of Swan's three prior felony convictions. The convictions established that Swan pled guilty to violating the Georgia Controlled Substances Act in 1983, being a habitual violator in 1988, and escape in 1993. On appeal, Swan maintains that he should not have been sentenced as a recidivist because the 1983 guilty plea resulted in a first offender sentence of five years probation. We acknowledge that "[a] first offender's guilty plea does not constitute a `conviction' as that term is defined in the Criminal Code of Georgia . . . [because] [u]nder the first offender statute, until an adjudication of guilt is entered, there is no conviction." However, Swan points to no evidence in the record nor have we found any evidence that he was sentenced as a first offender. Swan has the burden to show error affirmatively by the record, and he has not done so.
(Citations and punctuation omitted.) Davis v. State, 273 Ga. 14, 15 ( 537 SE2d 663) (2000).
Carter v. State, 259 Ga. App. 798, 802 (3) ( 578 SE2d 508) (2003).
Judgment affirmed. Andrews, P.J., and Phipps, J., concur.