☢ test - Í

Bacchus v. State, 323 Ga.App. 652, 747 S.E.2d 217 (July 31, 2013). Convictions for child molestation and related offenses affirmed. After hiring different counsel to raise ineffective assistance on motion for new trial, defendant waived the issue by re-hiring trial counsel to handle his appeal. Rucker v. State, 293 Ga. 116, 744 S.E.2d 36 (June 3, 2013). Murder and related convictions affirmed; where new appellate counsel is appointed prior to appeal, claims of ineffective assistance must be brought by motion for new trial, even where prior motion for new trial was already denied. “Because Rucker failed to file a motion for new trial after being granted an out-of-time appeal, he is procedurally barred from pursuing an ineffective assistance of counsel claim. ‘After an out-of-time appeal has been granted, a defendant's new appellate counsel must file a motion for new trial, in which an ineffective assistance of counsel claim is raised, in order to assert an ineffectiveness claim on appeal. Maddox v. State, 278 Ga. 823, 827(5) (607 S.E.2d 587) (2005); Chatman v. State, 265 Ga. 177, 178(2) (453 S.E.2d 694) (1995). [Appellant's] failure to file a motion for new trial raising the claim of ineffective assistance of trial counsel bars review of that claim in this court.’ Moore v. State, 280 Ga. 766, 767(4) (632 S.E.2d 632) (2006). This is true even when, as here, a previous motion for new trial was filed and denied prior to the grant of an out-of-time appeal. See Maddox, 278 Ga. at 826(5).” Yancey v. State, 292 Ga. 812, 740 S.E.2d 628 (April 29, 2013). Murder and related convictions affirmed; on motion for new trial alleging ineffective assistance, trial court wasn’t required to hear testimony from expert witness to establish prejudice prong where defendant couldn’t establish deficient performance prong. Defense expert’s testimony would have asserted that State’s blood spatter evidence was improperly obtained by illegal entry into defendant’s residence, and thus that defendant was prejudiced by its admission. Defendant couldn’t establish deficient performance, however, as trial counsel had consulted another expert who reached the same conclusion as State’s expert. “[T]here is no need for a trial court to hear evidence on prejudice in connection with an ineffective assistance claim when the claim fails necessarily because the defendant cannot show deficient performance. And the testimony of the new expert could not show deficient performance because the trial lawyers consulted with a qualified expert, their consultations gave them no basis for objecting to the conclusion reached by Hutchins, and they were under no obligation to search further than they did for an expert who would give them an opinion otherwise. Smith v. State, 283 Ga. 237, 238–239(2)(a), 657 S.E.2d 523 (2008).” Bufford v. State, 320 Ga.App. 123, 739 S.E.2d 421 (March 6, 2013). Child molestation conviction affirmed; no ineffective assistance shown. Defendant contends that counsel was ineffective for failing to object to certain evidence, but failed to call her as a witness at the hearing on his motion for new trial. Contrary to defendant’s argument, the State didn’t have the burden of proving what trial counsel’s strategy was; rather, counsel’s decisions were presumed strategic. “To the extent he suggests that the state was required to present evidence on the issue of trial counsel's strategy, … Bufford misapprehends the burden of proof. See McClarity v. State, 234 Ga.App. 348, 350(3) (506 S.E.2d 392) (1998).” “Furthermore, there is no merit in Bufford's argument that, under Belt v. State, 225 Ga.App. 813 (485 S.E.2d 39) (1997), he was not allowed to call his trial counsel as a witness to establish that counsel's ineffectiveness. Belt concerned the prohibition against trial counsel asserting his or her own ineffectiveness while still representing the defendant. Id. at 814–815(2)(a). Bufford, in contrast, was represented by new, post-conviction counsel at the hearing on his motion for new trial.” Lee v. State, 308 Ga.App. 711, 708 S.E.2d 633 (March 24, 2011). Aggravated assault and related convictions affirmed; trial court erred by refusing to allow new counsel to amend motion for new trial to add ineffective assistance claims. “Lee first raised his ineffective assistance claims through conflict-free counsel when he filed the amendment to his motion for new trial in November 2009. He was entitled to a hearing on the merits of those claims. Shockley v. State, 230 Ga. 869 (199 S.E.2d 791) (1973); Cooper v. State, 249 Ga.App. 881-882 (549 S.E.2d 829) (2001). The trial court, however, expressly stated at the outset of the motion for new trial hearing that it would not consider the claims raised in the amendment. Under these circumstances, the court's failure to consider the claims was error. See OCGA § 5-5-40(b); Cooper, supra at 882; Swint [ v. State, 279 Ga.App. 777 (632 S.E.2d 712) (2006)].” Ware v. State, 307 Ga.App. 782, 706 S.E.2d 143 (February 10, 2011). Robbery conviction affirmed; no abuse of discretion where trial court summarily denied defendant’s pre-trial requests to replace appointed counsel with another specified attorney. No right to hearing pre-trial. “In complaining that the trial court denied his requests without first conducting a hearing, Ware cites Heard v. State, 173 Ga.App. 543, 327 S.E.2d 767 (1985), for this proposition: ‘When ... the issue of the effectiveness of appointed counsel is raised, it would appear that the trial court, in order to insure that the defendant's Sixth Amendment right has been and will continue to be afforded, should conduct a hearing as to the basis of