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Final Copy 289 Ga. 603

S11A0314, S11X0315. STATE v. ABERNATHY; and vice versa.

HUNSTEIN, Chief Justice. Samuel Mitchell Abernathy was convicted by a White County jury of the January 2008 murder of Darrin Ramey and sentenced to life imprisonment. On motion for new trial, the trial court, while rejecting most of Abernathy's contentions, granted the motion on the sole ground that Abernathy's public defender had rendered ineffective assistance due to a conflict of interest inhering in his representation of Abernathy. The State obtained a certificate of immediate review and filed an application for interlocutory appeal challenging the award of a new trial, which this Court granted. Abernathy then filed a cross-appeal, contesting the trial court's rejection of his other alleged grounds for reversal. For the reasons set forth below, we find that the trial court erred in granting Abernathy a new trial and therefore reverse and remand for further proceedings in the trial court.1

Abernathy's motion to dismiss the State's appeal on the ground that its brief was untimely is denied.

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Case No. S11A0314 1. The trial court granted Abernathy's motion for new trial based on the finding that Abernathy's public defender, Charles Brown, was employed in the same circuit public defender's office as initial counsel for Abernathy's coarrestee in the case, John Geren. Geren, Abernathy's then-romantic partner, was a witness to the altercation from which Abernathy's conviction arose and fled the scene with Abernathy in the aftermath thereof; the two men were apprehended while fleeing and placed under arrest later on the day of the crime. As found by the trial court, the undisputed evidence reflects that within hours of the men's arrest on January 10, 2008, Neil Smith of the Enotah Circuit Public Defender's Office visited Geren at the jailhouse, confirming Geren's desire for legal representation, and Geren told Smith his version of events surrounding the crime. Smith then filed an entry of appearance on Geren's behalf in the case as well as standard preliminary motions. Shortly thereafter, however, Geren retained private counsel, who filed an entry of appearance in the trial court on January 16, 2008, whereupon Smith withdrew from the case and Geren's case file in the public defender's office was closed. In March 2008, Geren was released without charge, and he ultimately testified at trial as a key
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witness for the State, providing an eyewitness account of the crime and incriminating details regarding Abernathy's conduct beforehand and thereafter. Abernathy, who had initially indicated he would retain private counsel, ultimately came to be represented by Brown, who entered an appearance on Abernathy's behalf in April 2008. Brown had been sworn in as the Enotah Circuit Public Defender in January 2008, on the very day Smith withdrew his representation of Geren. Smith left the employ of the Enotah public defender's office within weeks of Brown's entry of appearance on Abernathy's behalf. Brown and Smith thus never communicated regarding the case, and it is undisputed that Brown had no knowledge that his office had briefly represented Geren in the case until well after his representation of Abernathy had ended. Based on these facts, the trial court, analogizing lawyers within a single circuit public defender office to lawyers within a single law firm, found that Brown was laboring under an actual conflict of interest in his representation of Abernathy, that prejudice therefrom must be presumed, and that Abernathy had thus received ineffective assistance of counsel. While we agree with the trial court that Abernathy and Geren's interests in the case were adverse to one another's and would thus

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