☢ test - Í

Hung v. State, 282 Ga. 684, 653 S.E.2d 48 (November 5, 2007). “‘[D]ifferent attorneys from the same public defender’s office are not to be considered “new” counsel for the purpose of raising ineffective assistance claims....’ Ryan v. Thomas, 261 Ga. 661, 662 (409 S.E.2d 507) (1991).” “A defendant’s right to raise claims of ineffective assistance ‘may not be barred by the failure of a succession of attorneys from the same public defender’s office to raise it.’ Ryan v. Thomas, supra.” See also Love (September 4, 2008), above. Worthy v. State, 286 Ga.App. 77, 648 S.E.2d 682 (June 22, 2007). “Worthy contends, in separate enumerations of error, that her trial counsel failed to communicate with her regarding the charges and related issues, failed to investigate the case, failed to interview or subpoena witnesses, and failed to discuss a theory of defense with her. At the hearing, Worthy’s new counsel called several witnesses in support of these contentions, but he did not call Worthy’s trial counsel, who was present, as a witness. Even though Worthy called other witnesses who offered some testimony in support of the claims of ineffective assistance, without trial counsel’s testimony, the trial court was allowed to assume that trial counsel’s actions were a matter of strategy: ‘Because of this heavy burden borne by the defendant and the presumption of strategy by trial counsel, “the failure to call trial counsel as a witness in the motion for new trial hearing alone allows the trial court to assume that the matter was a deliberate trial strategy and to rule against defendant’s claim of ineffective assistance.” Baker v. State, [251 Ga.App. 377, 379(2) (554 S.E.2d 324) (2001)]. See Cox v. State, [279 Ga. 223, 227(6) (610 S.E.2d 521) (2005)]. (failure to call trial counsel as witness authorized trial court to find that defendant failed to rebut the presumption of effectiveness by clear and convincing evidence).’ Smith v. State, 282 Ga.App. 339, 345(4) (638 S.E.2d 791) (2006). The Court in Smith, identified one exception to this rule: ‘The only exception to this rule is where the matter relates to an error allegedly made during the course of the trial that can be determined purely from the trial record....’ Id. In this case, each of the alleged deficiencies of trial counsel is a matter that must be addressed outside the trial record. Therefore we cannot conclude that Worthy overcame the strong presumption that counsel provided reasonable professional assistance. See id. ” Accord, Patterson v. State , 328 Ga.App. 111, 761 S.E.2d 524 (July 10, 2014) (“The presumption of reasonable trial strategy is ‘extremely difficult to overcome when the defendant fails to call the trial attorney to testify on the motion for new trial,’” quoting Boykin v. State, 264 Ga.App. 836, 841(5) (592 S.E.2d 426) (2003).). Smith v. State, 282 Ga.App. 339, 638 S.E.2d 791 (November 8, 2006). “‘A defendant cannot resuscitate claims of ineffectiveness that are procedurally barred simply by bootstrapping them to a claim of ineffectiveness of appellate counsel. Once a claim is procedurally barred, there is nothing for this Court to review. To hold otherwise would eviscerate the rule requiring that ineffectiveness claims be raised at the earliest practicable moment.’ (Footnote omitted.) Upshaw v. State, 257 Ga.App. 199, 570 S.E.2d 640 (2002). See Howard v. State, 281 Ga.App. 799, 637 S.E.2d 448 (October 5, 2006).” Bryson v. State, 282 Ga.App. 36, 638 S.E.2d 181 (October 20, 2006). Defendant waived his opportunity to pursue ineffective assistance of trial counsel by withdrawing his motion for new trial and insisting he would pursue ineffective assistance on appeal instead, despite trial court’s warning. Frazier v. State, 278 Ga.App. 685, 629 S.E.2d 568 (April 7, 2006). No ineffective assistance for failing to move for hearing on reliability of child hearsay, where evidence ultimately established the reliability of the statements. “As trial counsel cannot be deemed ineffective for failing to pursue a futile or meritless argument, Frazier cannot establish that his trial counsel was deficient by failing to request such a hearing. [Cits.]” Dickens v. State, 280 Ga. 320, 627 S.E.2d 587 (March 13, 2006). Physical precedent only ; three justices concur specially, one concurs in judgment only. At hearing on motion for new trial based on ineffective assistance of counsel, defense counsel may testify to what an uncalled witness would have said to establish whether counsel’s performance was deficient – that is, whether the decision to call the witness or not was reasonable. “However, a defendant cannot use defense counsel’s testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness’s testimony . Defense counsel’s testimony in that regard is hearsay evidence, Dewberry v. State, 271 Ga. 624(2) (523 S.E.2d 26) (1999); Prather v. State, 259 Ga.App. 441(4) (576 S.E.2d 904) (2003); see also Fuller v. State, 278 Ga. 812(2)(d) (607 S.E.2d 581) (2005) (counsel’s testimony cannot be used to prove that witness had prior felony); and hearsay, of course, has no probative value. Bridges v. State, 279 Ga. 351 n. 12 (613 S.E.2d 621) (2005). Hearsay evidence cannot be used either under the first Strickland prong to rebut the reasonableness of trial counsel’s tactical decision or under the second Strickland prong to establish that the defense was prejudiced by counsel’s deficient performance. Either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness’s testimony.” Such a substitute may include an affidavit by the witness in question, pursuant to