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consent test results, which were sole evidence of drug possession. Based on Beasley v. State, 204 Ga.App. 214, 419 S.E.2d 92 (1992), State v. Gerace, 210 Ga.App. 874, 437 S.E.2d 862 (1993), and State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997). 73. NEW TRIAL, FAILURE TO FILE APPEAL/MOTION Clemons v. State, 288 Ga. 445, 704 S.E.2d 762 (January 10, 2011). On appeal of defendant’s murder conviction, “[a]ppellant … contends that trial counsel rendered ineffective assistance after conviction by failing to file a motion for new trial or a notice of appeal. However, an out-of-time appeal is the remedy where a right of direct appeal has been frustrated as a result of ineffective assistance of counsel. Hudson v. State, 278 Ga. 409(1) (603 S.E.2d 242) (2004); Smith v. State, 266 Ga. 687 (470 S.E.2d 436) (1996). Since Appellant was given permission to file this out-of-time appeal, the issue is moot. West v. Hopper, 232 Ga. 830 (209 S.E.2d 310) (1974). See also McGee v. State, 255 Ga.App. 708, 714(2)(h) (566 S.E.2d 431) (2002).” 74. NOLLE PROS, FAILURE TO OPPOSE Hicks v. State, 315 Ga.App. 779, 728 S.E.2d 294 (May 3, 2012). RICO conviction affirmed; no ineffective assistance where trial counsel failed to oppose nolle pros of original indictment. Contrary to defendant’s argument, if the original indictment had been quashed instead of nolle prosed, State could still have re-indicted without running afoul of the statute of limitation. “By its plain terms, the savings provision of OCGA § 17–3–3 applies when a timely indictment is quashed, as well as when a nolle prosequi is entered.” 75. OPENING STATEMENT Crayton v. State, S15A1506, ___ Ga. ___, 784 S.E.2d 343, 2016 WL 856238 (March 7, 2016). Felony murder and related convictions affirmed; no ineffective assistance in failing to object to alleged misstatement of the law in prosecutor’s opening; rather, “counsel took action by responding to the prosecutor’s opening commentary and by advancing appellant’s self-defense theory of the case.” Prosecutor stated that “[defendant] being a convicted felon, having a gun and using that gun to kill somebody, regardless of the circumstances, that is felony murder itself. ” Defense counsel pointed out, however, that even a convicted felon has a right to self-defense. Wallace v. State, 296 Ga. 388, 768 S.E.2d 480 (January 20, 2015). Murder and related convictions affirmed; no ineffective assistance in counsel’s opening statement which “said that Wallace ‘likened himself to be a rapper. It seems to be very popular now. Young black men want to become rappers, and so they get all these tattoos.’ Although lawyers ought not unnecessarily inject the race of any party into the proceedings, Wallace has failed to show how this particular statement was unreasonable or prejudicial. See Stephens v. State, 208 Ga.App. 620, 622(2)(e) (431 S.E.2d 422) (1993) (although racial distinctions are offensive and will be closely scrutinized, ‘we cannot say that every such reference is prejudicial as a matter of law; to call it a deficiency of counsel as a matter of law might deprive a defendant of an important defense in some cases’). At trial, his lawyer had to deal with expected evidence of the ‘unknown killer’ tattoo and the rap lyrics written after the murder. The apparent strategy of the lawyer was to attempt to portray these things as commonplace for an aspiring rap artist, not admissions of guilt. ‘It is reasonable strategy for defense counsel to place disagreeable information before the jury in a manner which he can control rather than allow the subject matter to be presented in a more damaging fashion.’ Terry v. State, 284 Ga. 119, 122(2)(d) (663 S.E.2d 704) (2008) (citations omitted). The fact that Wallace now disagrees with his lawyer's tactical choices during opening statement does not require a finding of ineffective assistance of counsel. See Mize v. State, 269 Ga. 646, 655(11) (501 S.E.2d 219) (1998).” Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (January 20, 2015). Malice murder, armed robbery and related convictions affirmed; no ineffective assistance in failing to object to prosecutor’s opening statement, which “referred to the victim as a ‘nice kid.’ Given that the jury was instructed that opening statements are not evidence and that this isolated comment was contradicted by actual evidence that the victim was a drug dealer and accused child molester, we find no deficient performance in counsel's failure to object.” Williams v. State, 292 Ga. 844, 742 S.E.2d 445 (April 29, 2013). Murder and related convictions affirmed; no ineffective assistance where counsel misstated evidence in opening statement. “[I]t is undisputed that there was no intention to mislead the jury, and the misstatement was corrected when a detective testified about the 911 call log. … In closing argument, the lawyer explained that some occurrences during trial were surprising and that it was not her intention to trick or deceive the jury. … And the evidence that Black called 911 with no more than slight delay had little, if any, effect on the plausibility of the defense theory that Black participated in framing Williams. [Cit.] Moreover, the prejudicial effect, if