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Calloway v. State

Court of Appeals of Georgia

May 14, 2015

CALLOWAY
v.
THE STATE

Effective assistance of counsel. Dougherty Superior Court. Before Judge Marshall.

J. Philip Cannon, for appellant.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Cania Brown-Gordon, Assistant District Attorneys, for appellee.

OPINION

McFadden, Judge.

On appeal from his convictions for aggravated assault and robbery by force, Ernest Calloway argues that he received ineffective assistance of trial counsel in several respects. But Calloway did not challenge his trial counsel's effectiveness in a motion for new trial. The record contains only an initial motion for new trial, filed by Calloway's trial counsel, that did not allege ineffective assistance. In fact, trial counsel was not permitted to allege his own ineffectiveness in that motion. See Hood v. State, 282 Ga. 462, 463 (651 S.E.2d 88) (2007). Although Calloway obtained new post-conviction counsel more than a year before the trial court ruled on the motion for new trial, Calloway did not amend the motion to add a claim for ineffective assistance.

" [T]he rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that the claim be raised before appeal if the opportunity to do so is available[.]" Glover v. State, 266 Ga. 183, 184 (2) (465 S.E.2d 659) (1996) (citations and punctuation omitted; emphasis in original). Calloway did not raise his claim of ineffectiveness at the earliest practicable moment, when he obtained new post-conviction counsel. Consequently, he did not preserve that claim for appellate review. See Deloatch v. State, 295 Ga. 681, 683 (2) (763 S.E.2d 480) (2014); Glover, 266 Ga. at 184 (2). Because ineffective assistance of trial counsel is the only error Calloway has enumerated on appeal, we affirm.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


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