This Court granted Patrick Sullivan’s certificate of probable cause to appeal the denial of his petition for habeas corpus. Because we agree with Sullivan that his appellate counsel’s performance was deficient and there is a reasonable probability that counsel’s error prejudiced the defense, we reverse the habeas court’s ruling.
Details of this case are set forth in Sullivan v. State, 277 Ga. App. 738 627 SE2d 437 2006, in which the Court of Appeals affirmed Sullivan’s convictions on the sole enumeration of error that the evidence was insufficient to support the verdict. The record shows while Sullivan was alone baby sitting a one-year-old child, the child suffered serious brain injuries that, according to testimony presented at trial, were consistent with shaken baby syndrome. Further, according to the expert testimony, the child’s injuries were inconsistent with Sullivan’s explanation of how the injuries occurred. The evidence showed Sullivan informed the emergency operator when he called to report the child’s injuries that the baby “fell off the couch.” In a voluntary statement given to investigators, he first stated the child fell off the couch while he was out of the room but he later admitted to investigators that, upon discovering the child, he then shook the child in what he claimed was a playful manner in response to the child’s crying. At trial, Sullivan testified that after he heard a thump and discovered the child on the floor crying, he shook and rocked the baby to try to get him to laugh. A witness testified that shortly after the child was taken to the hospital in an ambulance, Sullivan cried and stated, “I’m sorry, I didn’t mean it.” Sullivan was charged with cruelty to a child in the first degree, aggravated battery, aggravated assault with a deadly weapon his hands, and giving a false name to a law enforcement officer. He was tried and convicted of aggravated assault, for which he was sentenced to serve twenty years, and also convicted of the false name charge, for which he was sentenced to serve twelve months concurrently. His motion for new trial was denied and, on appeal of the aggravated assault conviction on the ground of insufficiency of the evidence, the Court of Appeals affirmed. Sullivan later filed his petition for a writ of habeas corpus in which he alleged ineffective assistance of appellate counsel on the ground that counsel failed to raise on appeal the additional ground that allegedly erroneous jury instructions had been given which, according to Sullivan, allowed the jury to find him guilty of aggravated assault on the basis of criminal negligence rather than criminal intent. Sullivan’s petition for habeas relief was denied.
