Milliken v. State

In 1997, a Clarke County jury found Leonard Scott Milliken guilty of two counts of reckless conduct, one count of kidnaping, and one count of DUI. He was appointed appellate counsel, and a notice of appeal, enumerations of error and supporting brief were filed in this Court. The enumerations of error included a claim of ineffective assistance of trial counsel, and no claim was raised regarding a violation of OCGA § 17-8-57, re: an improper expression of opinion by the trial court. On February 26, 1998, Milliken’s claims of error were addressed on the merits by this Court, and his conviction and sentence were affirmed.1

Thereafter, Milliken obtained another attorney, and, on February 22, 1999, a Petition for Writ of Habeas Corpus was filed in the Superior Court of Chatham County,2 claiming, inter alia, ineffective assistance of appellate counsel for failure to include in the appeal before this Court that trial counsel was ineffective for not objecting to the trial court’s comments pursuant to OCGA § 17-8-57. A hearing was held with regard to the allegations of the petition, and the habeas court determined that OCGA § 17-8-57 had been violated by the trial court’s comments; that Milliken’s trial was effected thereby; that trial counsel should have objected to such judicial comments; and that, consequently, appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel based on the fact that trial counsel did not object to the judge’s comments pursuant to OCGA § 17-8-57.