
    Henry Lewis COSBY v. STATE.
    CR-91-1045.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1992.
    Robert B. Tuten, Huntsville, for appellant.
    James H. Evans, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for appellee.
   JAMES H. FAULKNER, Retired Justice.

Henry Lewis Cosby was indicted for the offense of capital murder, in violation of § 13A-5-40(a)(13), Code of Alabama 1975. The jury found Cosby guilty of capital murder as charged in the indictment. During the sentencing phase of the State’s case against Cosby, the jury recommended that Cosby receive a sentence of life imprisonment without possibility of parole term. The trial court subsequently sentenced Cosby to imprisonment for life without the possibility of parole.

Cosby contends that his constitutional rights were violated because his trial counsel provided ineffective assistance at trial.

Prior to the commencement of his trial, Cosby expressed some concern over the representation he was receiving in the case. Trial counsel alerted the judge to the problem and moved to withdraw as counsel for Cosby. The court conducted a lengthy examination of Cosby and Cosby’s trial counsel and denied the motion to withdraw. The trial commenced, and Cosby was found guilty of capital murder and was sentenced to life imprisonment without the possibility of parole.

On January 13, 1992, Cosby filed a motion asking the court to grant him leave to amend his motion by adding new and separate grounds that might include questions of the competency of Cosby’s trial counsel. The trial court granted Cosby’s motion for leave to amend his motion for new trial and ordered that Cosby be granted 14 days from completion of the transcript within which to amend his motion for new trial by adding additional grounds.

According to a minute entry, Cosby filed a second motion for new trial on April 3, 1992, and the court set Cosby’s motion for new trial for hearing on April 23, 1992. The record on appeal does not contain either Cosby’s motion for new trial filed on April 3, 1992, or a transcript of the hearing held on April 23, 1992.

Cosby argues on appeal that he was denied effective assistance of counsel at trial because trial counsel failed to object to improper jury instructions given by the trial court at the conclusion of the guilt phase and of the penalty phase of the trial.

Because we cannot review this issue without a complete record, this case is remanded with directions that the trial court include in the record on appeal Cosby’s motion for new trial filed on April 3, 1992, together with a transcript of the hearing on Cosby’s motion for new trial held on April 23, 1992. If the hearing held on April 23, 1992, did not address Cosby’s claim of ineffective assistance of trial counsel, the trial court is to conduct a hearing on Cosby’s claim of ineffective assistance of trial counsel based upon trial counsel’s failure to object to allegedly improper jury instructions given by the trial court at the conclusion of the guilt and of penalty phases of the trial.

The trial court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 90 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.

The parties, of course, have not relinquished their respective positions regarding the other issues raised on appeal, and this court reserves comment on them until the trial court complies with the directions contained herein and until a proper return is made to this court. Upon due return, the appellant shall have seven days in which to file a supplemental brief. The appellee shall have seven days from the filing of the appellant’s supplemental brief or from the expiration of the time herein provided for the filing of a supplemental brief by the appellant, in the event the appellant files no brief, to file a supplemental brief in this case.

The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a former Alabama Supreme Court Justice, and his opinion is hereby adopted as that of the court.

REMANDED WITH DIRECTIONS.

All the Judges concur except BOWEN, J., who dissents with opinion.

BOWEN, Judge,

dissenting.

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

In this case, new counsel, different from trial counsel, was appointed to represent the appellant on January 16, 1992. Appellate counsel filed a motion for new trial on April 3,1992, but did not raise the issue of ineffective assistance of trial counsel.

In Ex parte Jackson, 598 So.2d 895 (Ala.1992), 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.

Here, appellate counsel failed to take advantage of the procedure announced in Jackson.

Where 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 ease, 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 appellant has not made such a showing and the majority has not made any finding that justice requires the remand.

Contrary 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. 
      
      . In Jackson, the Supreme Court stated:
      ‘‘[W]e hold that if the trial court appoints new counsel to represent the defendant on appeal, the trial court shall note that fact on the case action summary sheet, and shall also note that the time within which to file a motion for a new trial is extended in such case, provided the following occurs: If newly appointed counsel files a motion with the court within 14 days after his appointment, requesting that the running of the time within which to file a motion for a new trial be suspended until such time as the reporter’s transcript is prepared and filed, then in that event, the 30-day period within which to file a motion for a new trial shall be computed from the date the reporter's transcript is filed, which date shall be entered on the case action summary sheet, rather than from the date of the pronouncement of sentence, as provided for in Rule 24, A.R.Crim.P. Appellate counsel will then have the means to raise all appropriate issues before the trial court.” 598 So.2d at 897.
      The Jackson opinion had been issued on February 28, 1992; it was withdrawn on May 8, 1992, and a substitute opinion was issued that date. However, the Jackson opinion of May 8 is identical to the February 28 opinion except that it establishes the procedure for the filing of appellate briefs.
     