BACCHUS v. STATE

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Court of Appeals of Georgia.

BACCHUS v. The STATE.

No. A13A0925.

Decided: July 31, 2013

Anton Latasius Rowe, for Apellant. Thomas Joseph Campbell, Stewart David Bratcher, Rosemary M. Greene, Jana Willingham Allen, for Appellee.

Following a trial by jury, Johnathan Bacchus was convicted on multiple counts of rape, child molestation, incest, and cruelty to children in the first degree for acts perpetrated against his daughters. Bacchus appeals his convictions, arguing that his trial counsel rendered ineffective assistance by failing to make certain objections at trial. But for the reasons set forth infra, Bacchus has waived his ineffective-assistance arguments and, accordingly, we affirm his convictions.

The record reflects that Bacchus was represented at trial by Anton Rowe, the same attorney who represents Bacchus on appeal. Following conviction, Rowe initially filed a motion for new trial on Bacchus's behalf but reserved the right to obtain new counsel and amend the motion. Thereafter, an entry of appearance and amended motion for new trial were filed by attorney Michael Sheridan. The amended motion for new trial added an argument that Bacchus's trial counsel (Rowe) rendered ineffective assistance.

The trial court heard argument on the motion for new trial, at which point Sheridan appeared on behalf of Bacchus and did not call Rowe to testify. The court ultimately denied Bacchus's motion. And after doing so, the court inquired as to whether Sheridan would represent Bacchus on appeal. Sheridan advised the court that he would not represent Bacchus on appeal and that he had informed Bacchus that he would need to retain new counsel within 30 days. The trial court then indicated that the Office of the Public Defender would provide appellate representation for Bacchus.

Thereafter, Sheridan filed a motion to withdraw as counsel, which the trial court granted, and new counsel was appointed to represent Bacchus on appeal. That same day, Bacchus's newly appointed appellate counsel filed a notice of appeal with the trial court. However, just six days later, a second notice of appeal was filed on Bacchus's behalf by Anton Rowe.1 And it is Rowe, not the newly appointed public defender, who currently appears as attorney of record in this Court and represents Bacchus in this appeal.2

As noted supra, Bacchus's sole argument on appeal is that his trial counsel rendered ineffective assistance. But because Bacchus chose to pursue this appeal using the same attorney who defended him at trial (despite having hired new counsel to represent him at the motion-for-new-trial hearing and despite having been initially appointed a public defender to represent him on appeal), he has waived appellate review of this issue.3 Indeed, this situation is wholly distinguishable from one in which an appellant has been represented by the same attorney from trial through direct appeal and makes a claim for ineffective assistance of counsel for the first time on appeal.4 Nevertheless, just as in those cases, Bacchus's appellate counsel should be “precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition of a lawyer acting as a witness.”5

Accordingly, because Bacchus's sole enumeration of error has been waived, we affirm his convictions.

Judgment affirmed.

DILLARD, Judge.

ANDREWS, P.J., and McMILLIAN, J., concur.