☢ test - Í

Washington v. State, 271 Ga.App. 764, 610 S.E.2d 692 (February 23, 2005). “Washington … contends that his trial counsel was ineffective for failing to challenge the constitutionality of OCGA § 16-5-43, which defines the crime of malicious confinement of a sane person, on the basis that it is vague. ‘As we recently noted, however, the “standard for effectiveness of counsel does not require a lawyer to anticipate changes in the law or pursue novel theories of defense.” [Citation in footnote.] [Washington] has not cited, and we have not found, any case addressing a similar constitutional challenge to OCGA § [16-5-43]. Trial counsel’s failure to raise this novel legal argument does not amount to ineffective assistance of counsel.’ Hughes v. State, 266 Ga.App. 652, 655(3)(a) (598 S.E.2d 43) (2004).” Accord, Glidewell v. State , 279 Ga.App. 114, 630 S.E.2d 621 (April 27, 2006) (full court opinion; Overruled on other grounds, Reynolds v. State , 285 Ga. 70, 673 S.E.2d 854 (February 23, 2009)); Daly v. State , 285 Ga.App. 808, 648 S.E.2d 90 (May 30, 2007); Taylor v. State , 285 Ga.App. 697, 647 S.E.2d 381 (June 6, 2007) (counsel not required to raise Crawford issue before Crawford was decided by U.S. Supreme Court). Gerisch v. Meadows, 278 Ga. 641, 604 S.E.2d 462 (October 25, 2004). Denial of habeas petition reversed; defendant received ineffective assistance from trial counsel who didn’t research whether his aggravated battery charge was barred based on double jeopardy following plea to violation of municipal disorderly conduct ordinance. “‘[A] person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense – an offense consisting solely of one or more of the elements of the crime for which he has already been convicted ... the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense.’ (Punctuation omitted.) State v. Burroughs, 246 Ga. 393, 394, 271 S.E.2d 629 (1980). See also Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), applying the test in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (in determining whether there are two offenses or only one for double jeopardy purposes under the Fifth Amendment, we look to whether each provision ‘requires proof of a fact which the other did not’ (emphasis deleted)). Thus, if all the elements of aggravated battery are contained in the municipal crime of disorderly conduct, Gerisch may not be tried on the state court offense. Id. That is because the constitution prohibits ‘successive prosecutions as well as cumulative punishment.’ Brown v. Ohio, above 432 U.S. at 166. Relying on U.S. v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) and Clark v. Caldwell, 229 Ga. 612, 193 S.E.2d 816 (1972), the habeas court reached the conclusion that Gerisch’s entry of the guilty plea to aggravated battery waived consideration of his constitutional double jeopardy claim. The dissent adopts that analysis. But the critical distinction is that the guilty pleas in both Broce and Clark were knowingly and voluntarily entered with the benefit of competent counsel. As noted in Broce: ‘A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.’ (Emphasis supplied.) 488 U.S. 563 at 574, 109 S.Ct. 757, 102 L.Ed.2d 927.” Here, counsel did no research on whether state prosecution was barred by prior plea in municipal court, taking prosecutor’s word that it wasn’t barred, and advising client that if he tried to pursue double jeopardy defense, prosecutor might withdraw plea offer. Defendant was thus denied effective assistance of counsel. Since plea was thus not knowing and voluntary, defendant did not waive double jeopardy defense. Accord, Johnson (October 9, 2007), above. 90. RETAINED COUNSEL Davis v. State, 245 Ga.App. 402, 538 S.E.2d 67 (July 28, 2000). Vehicular homicide convictions affirmed. No ineffective assistance from defendant’s retained counsel. “‘Whenever a defendant selects his own counsel, that counsel truly represents the defendant and no mistake or error of his, made in good faith and with earnest and honest purpose to serve his client, can be made the basis of a claim of reversible error.’ (Citation omitted.) Scott v. State, 178 Ga.App. 844(1), 344 S.E.2d 764 (1986); Donaldson v. State, 180 Ga.App. 879, 880(3), 350 S.E.2d 849 (1986).” 91. SENTENCE REVIEW Guyton v. State, 281 Ga. 789, 642 S.E.2d 67 (February 26, 2007). “[I]t cannot be said that [co-defendant] Preston’s trial counsel rendered ineffective assistance simply because he prematurely filed a motion for sentence review. See OCGA § 17-10-6 (application for review of sentence shall be made within 30 days of the imposition of sentence or the remittitur is made the judgment of the sentencing court, whichever occurs last). Preston has not demonstrated how he was prejudiced by counsel’s conduct in this regard. See in a different context, McCulley v. State, 273 Ga. 40, 43 n. 3 (537 S.E.2d 340) (2000) (premature notice of appeal ripened upon filing of sentence); Livingston v. State, 221 Ga.App. 563(1) (472 S.E.2d 317) (1996) (prematurely filed notice of appeal becomes effective upon filing of judgment or order).”