Appellee Steven Lee Garland was convicted of sexual battery involving a child and sentenced to serve one year imprisonment followed by four years of probation. His conviction was affirmed on appeal. See Garland v. State, 315 Ga. App. XXV 2012. Garland filed a petition for writ of habeas corpus which the habeas court granted based on its determination that Garland’s appellate counsel provided ineffective assistance. The State appeals from the order granting Garland habeas relief, and for the reasons that follow, we affirm. In 2008, Garland was found guilty of sexual battery involving a child based on allegations that he intentionally touched a child’s buttocks as he picked her up during a church conference. After the verdict was returned and before sentencing, Garland retained new counsel to represent him through sentencing and on appeal. This attorney, to whom we refer as appellate counsel, filed a motion for new trial asserting that trial counsel was ineffective on several grounds, including an allegation that he unreasonably failed to investigate Garland’s mental health status and failed to raise Garland’s mental condition as an issue at trial despite knowing that Garland was under the care of a psychiatrist and had been prescribed anti-psychotic medication.
Prior to the hearing on his motion for new trial, Garland, who already had served the incarceration portion of his sentence, was re-incarcerated on a probation violation. Appellate counsel testified at the habeas hearing that in order to secure Garland’s release from confinement, he reached an agreement with the State which required him to withdraw the motion for new trial, and in exchange, Garland would be returned to probation to be served in his home state of Texas.1 Garland did not execute a written agreement to withdraw his motion for new trial or to waive his post-conviction review rights and he was not informed by the judge presiding over his probation revocation hearing that he was waiving his post-conviction rights in exchange for a return to probation. In fact, there is no evidence that the judge overseeing the hearing was made aware of appellate counsel’s agreement with the State. Nevertheless, Garland’s motion for new trial was withdrawn by appellate counsel,2 and on the same day, the court entered an order revoking Garland’s probation, releasing him from custody, and reinstating his probation with special conditions, one of which was that he establish residency in Texas and serve his probation there.
