McLeod v. State

¶1dissenting.

¶2I dissent from the opinion of the majority, which addresses none of the matters presented in this dissent.

¶3In this case, new counsel, different from trial counsel, was appointed to represent the appellant on March 5,1992, the day after the appellant was sentenced. However, six days before counsel was appointed, in Ex parte Jackson, 598 So.2d 895 (Ala.1992),1 the Alabama Supreme Court announced a new procedure to be followed to allow newly appointed appellate counsel to “have the means to raise all appropriate issues before the trial court,” and in particular, the issue of ineffective assistance of trial counsel. In so doing the Supreme Court reaffirmed the well-settled rule “that ‘“claims of ineffective assistance of counsel may not be considered for the first time on direct appeal.” ’ ” 598 So.2d at 897. After setting out the rationale for this rule, the Supreme Court stated:

“In light of this rationale, we will not make exception to the rule that a claim of ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court. We encourage counsel, whenever possible, to ascertain any possible defect in the trial process and to make an issue of that defect in an appropriate motion for a new trial. Failure to include a reasonably ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings.” Id. at 897.

¶4Here, appellate counsel’s failure to take advantage of the procedure announced in Jackson is understandable in view of the fact that that ease had been decided only six days before counsel was appointed. However, the fact remains that the issue of ineffective assistance was never presented to the trial court.

¶5Where claims of inadequate assistance of trial counsel are raised for the first time on appeal, “the Court of Criminal Appeals has authority to remand a case, if it determines justice would require it, to the trial court for a determination to be made on the defendant’s claim that he was inadequately represented at his trial.” Thompson v. State, 525 So.2d 820, 831 (Ala.1985) (emphasis in original). See also Ex parte Harper, 594 So.2d 1181, 1195 (Ala.1991). In this case, the ap*1065pellant has not made such a showing and the majority has not made any finding that justice requires the remand.

¶6Contrary to the opinion of the majority, this Court should not automatically remand a cause so that the trial court can make a determination of a defendant’s claim of ineffective representation where that issue is presented for the first time on appeal. The procedure the majority follows in this case renders the Alabama Supreme Court case of Jackson unnecessary and totally useless. The appellant’s remedy is a petition for post-conviction relief.