Rogers v. State

Full title: ROGERS v. THE STATE

Court: Court of Appeals of Georgia

Date published: May 22, 1989

383 S.E.2d 331 (Ga. Ct. App. 1989)

383 S.E.2d 331

Opinion

A89A0256.

DECIDED MAY 22, 1989. REHEARING DENIED JUNE 8, 1989.

Aggravated assault. Clayton Superior Court. Before Judge Crumbley.

David A. Cook, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant Rogers appeals his conviction of the offense of aggravated assault (assault with intent to rape). Held:

1. Defendant's first enumeration of error contends "[t]he trial court erred in denying Defendant's motion for a directed verdict of acquittal. . . ." However, our review of the record and transcript fails to reveal any motion for directed verdict of acquittal by defendant. This court cannot consider matters raised for the first time on appeal. Denton v. State, 186 Ga. App. 864, 865 (3) ( 368 S.E.2d 811); Mincey v. State, 186 Ga. App. 839, 841 (4) ( 368 S.E.2d 796); Buckner v. State, 186 Ga. App. 376 ( 367 S.E.2d 277); Smith v. State, 186 Ga. App. 303, 311 (5) ( 367 S.E.2d 573). See also Neel v. State, 140 Ga. App. 691, 692 (3) ( 231 S.E.2d 394), overruled on other grounds, Baker v. State, 245 Ga. 657, 665 (5) ( 266 S.E.2d 477).

2. Defendant contends the trial court erred in sentencing him for presenting a defense rather than for the crime of which he was convicted. This contention is predicated on the trial court's comment during the sentencing hearing that a "goodly portion" of defendant's sentence was for his unsuccessful attempt (at trial) to incriminate the victim.

First, we note that the sentence imposed upon defendant of ten years was within the parameters prescribed by statute and thus ordinarily will not be reviewed by the appellate courts. Monroe v. State, 250 Ga. 30, 36 (7) ( 295 S.E.2d 512); Stephens v. State, 185 Ga. App. 546, 547 (3) ( 365 S.E.2d 136); Pendleton v. State, 184 Ga. App. 358, 360 (4) ( 361 S.E.2d 663). Additionally, we disagree with defendant's interpretation of the trial court's comment and do not view it as suggesting any punishment of defendant for exercising his right to present a defense. Instead, we view the trial court's remark as a comment that in sentencing defendant, the conduct and attitude of defendant as shown by the evidence developed at trial would be considered. "In determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial. Dorsey v. Willis, 242 Ga. 316

( 249 S.E.2d 28) (1978)." Boney v. Tims, 254 Ga. 664, 665 ( 333 S.E.2d 592). See also Hiers v. State, 179 Ga. App. 181 (2) ( 345 S.E.2d 900). Also, in reaching the sentencing decision the trial court may also consider the conduct and attitude of defendant observed during trial. Ingram v. State, 134 Ga. App. 935, 939 (8), 940 ( 216 S.E.2d 608). This enumeration of error is without merit.

3. Defendant's final enumeration of error raises an issue as to ineffective assistance of trial counsel. Defendant's appellate counsel was retained following the filing of the notice of appeal. Thus, pursuant to Smith v. State, 255 Ga. 654 ( 341 S.E.2d 5), the case sub judice must be remanded to the trial court for a hearing concerning the claim of ineffective assistance of counsel. We affirm defendant's conviction and sentence and "remand the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffectiveness of counsel. If, after that hearing, any further review of this issue is sought, the appropriate appellate procedure must be followed. See Martin v. State, 185 Ga. App. 145, 147 ( 363 S.E.2d 765) (1987)." Dawson v. State, 188 Ga. App. 378 ( 373 S.E.2d 857).

Judgment affirmed as to conviction and sentence and case remanded with direction. Carley, C. J., and Beasley, J., concur.

DECIDED MAY 22, 1989 — REHEARING DENIED JUNE 8, 1989.