Mack Garland and his brother, Larry Garland, were tried together on charges of armed robbery and other crimes. Both men were found to be indigent and were appointed counsel to represent them.1 They were convicted and both requested the appointment of new counsel in order to raise a claim of ineffective assistance of trial counsel on motion for new trial. The trial court denied the request on the basis of its understanding that it was the policy of the Georgia Public Defender Standards Council “Council” not to authorize the appointment of new counsel for purposes of appeal. Thereafter, the Court of Appeals held as to Larry Garland that the trial court “did not err here when it deferred to the public defender’s own policy not to appoint new counsel for purposes of appeal,” Garland v. State , 283 Ga. App. 622, 624 2 642 SE2d 320 2007; it then applied that ruling to Mack Garland. Id. at 626 6. We granted Mack Garland’s petition for writ of certiorari to address the propriety of this ruling. We now hold that the trial court erred by denying appellant’s request for appointment of new counsel for purposes of appeal and accordingly reverse the decision of the Court of Appeals. Appellant is entitled under the United States and Georgia Constitutions to effective assistance of counsel at trial. Strickland v. Washington , 466 U.S. 668 104 SC 2052, 80 LE2d 674 1984; Smith v. Francis , 253 Ga. 782, 783-784 1 325 SE2d 362 1985. See also Cuylver v. Sullivan , 446 U.S. 335, 343 III 100 SC 1708, 64 LE2d 333 1980 “unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. Cits.”. Appellant’s right to effective assistance of counsel extends to a direct appeal from his criminal conviction. Evitts v. Lucey , 469 U.S. 387 II A 105 SC 830, 83 LE2d 821 1985. Because appellant was found to lack the financial resources to retain counsel, the State was required to provide counsel for his trial, Gideon v. Wainwright , 372 U.S. 335 83 SC 792, 9 LE2d 799 1963, and for his first appeal as a matter of right. Douglas v. California , 372 U.S. 353 83 SC 814, 9 LE 2d 811 1963. Appointed counsel, no less than retained counsel, is required to provide effective assistance. Cuyler v. Sullivan , supra at 344-345 III. Effective counsel is counsel free from conflicts of interest. Wood v. Georgia , 450 U. S. 261, 271 101 SC 1097, 67 LE2d 220 1981.
Under well established Georgia law, appellant was required to raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived. E.g., Trauth v. State , __Ga.__ 3 Case No. S08A0282, decided February 11, 2008; Bailey v. State , 264 Ga. 300 443 SE2d 836 1994; Ponder v. State , 260 Ga. 840 1 400 SE2d 922 1991; Lloyd v. State , 258 Ga. 645, n. 1 373 SE2d 1 1988; Smith v. State , 255 Ga. 654 3 341 SE2d 5 1986. This requirement that an ineffectiveness claim be made at the earliest practicable moment “is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and the public . . . .’ Cit.” Hood v. State , 282 Ga. 462, 462-463 651 SE2d 88 2007. By “earliest practicable moment,” we mean that the ineffectiveness claim must “be raised before appeal if the opportunity to do so is available.” Emphasis in original. Glover v. State , 266 Ga. 183, 184 465 SE2d 659 1996.
