CourtListener 10846004

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official text of the opinion.

In the Supreme Court of Georgia

Decided: March 3, 2026

S26A0222. SANDERS v. THE STATE.

COLVIN, Justice.

Appellant Joshua Sanders appeals his convictions for malice

murder and related offenses in connection with the shooting deaths

of Latorey Harden (“Latorey”) and her mother, Pamela Harden

(“Pamela”).1 The trial evidence, which included surveillance footage

1 The crimes occurred on January 6, 2022. On April 21, 2022, a Toombs

County grand jury indicted Appellant for malice murder (Counts 1 and 7),
felony murder (Counts 3 and 9), possession of a firearm during the commission
of a felony (Counts 2, 4, 6, 8, 10, and 12), aggravated assault (Counts 5 and 11),
cruelty to children in the first degree (Counts 13 and 14), and theft by taking
(Count 15). A jury trial was held from May 22 through 25, 2023, and the jury
found Appellant guilty of all counts. The trial court sentenced Appellant to
serve consecutive terms of life in prison without the possibility of parole for
each count of malice murder (Counts 1 and 7), consecutive terms of five years
in prison for each of two counts of possession of a firearm during the
commission of a felony (Counts 2, 8), concurrent terms of 20 years in prison for
each count of cruelty to children in the first degree (Counts 13 and 14), and a
concurrent term of five years in prison for theft by taking (Count 15). The trial
court merged the remaining counts, although the counts of felony murder
(Counts 3 and 9) were actually vacated by operation of law. See Malcolm v.
State, 263 Ga. 369, 371–72 (1993). Appellant timely filed a motion for new trial
of the shooting, eyewitness testimony, and testimony from Appellant

himself, showed that, following a brief, tumultuous, romantic

relationship between Appellant and Latorey, Appellant shot and

killed Latorey and Pamela outside of Latorey’s residence in Vidalia.

On appeal, Appellant raises one enumeration of error. He

claims that motion-for-new-trial counsel was constitutionally

ineffective for failing to raise a claim that trial counsel was

ineffective for failing to “shape” and “guide” Appellant’s testimony

on direct examination, which Appellant contends reflected

negatively on his character. But this claim, “which simply recast[s]

his trial-counsel ineffectiveness claim[ ] as [a] motion-for-new-trial

ineffectiveness claim[ ], [is] procedurally barred.” Pugh v. State, 318

Ga. 706, 723 (2024) (quotation marks omitted). Appellant’s

argument on appeal focuses on trial counsel’s ineffective assistance

on May 26, 2023, and amended the motion through new counsel on December
30, 2024, and February 18, 2025. Following a hearing, the trial court denied
Appellant’s motion for new trial on August 12, 2025. Appellant timely filed a
notice of appeal directed to this Court. The case was assigned to this Court’s
term beginning in December 2025 and was submitted for a decision on the
briefs.
2
in conducting Appellant’s direct examination, rather than on

motion-for-new-trial counsel’s decision not to pursue an ineffective-

assistance-of-trial-counsel claim regarding Appellant’s direct

examination. And Appellant requests a remand in this case only to

conduct a hearing “to determine if defense counsel” performed

deficiently, not to determine whether motion-for-new-trial counsel

was deficient. As we have “consistently held,”

a defendant cannot resuscitate a specific claim of
ineffective assistance of trial counsel that was not raised
at the motion for new trial stage by recasting the claim on
appeal as one of ineffective assistance of motion-for-new-
trial counsel for failing to raise the specific claim of trial
counsel’s ineffectiveness.

Id. at 723–24 (quotation marks omitted). Accordingly, this claim

fails. 2

Judgment affirmed. All the Justices concur.

2 If Appellant “wishes to pursue a claim that his post-conviction counsel

was ineffective, he must do so through a petition for a writ of habeas corpus.”
Id. at 724 n.15 (cleaned up).
3
PETERSON, Chief Justice, concurring.

I join the decision of the Court in full; it is a faithful application

of a long-standing rule that we created requiring claims of

ineffectiveness of trial counsel to be raised on a motion for new trial.

I write separately to point out the harm that rule has caused our

criminal justice system, and to encourage the General Assembly to

change it.

Georgia’s post-conviction litigation system is a mess. It’s a

mess in large part because of a series of well-meaning but short-

sighted decisions this Court made over the course of several decades.

Those decisions had a worthy goal: seeking to ensure that indigent

defendants were entitled to appointed counsel for litigating claims

of ineffective assistance of counsel. But the means we used to pursue

that goal have made things worse, not better.

These means were to require that ineffectiveness claims be

raised in a motion for new trial. See Simpson v. State, 250 Ga. 365,

367 (1982). In Simpson, we cited no legal authority in support of this

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rule, which eventually was refined into a requirement that

ineffectiveness claims “be raised before appeal if the opportunity to

do so is available[.]” Glover v. State, 266 Ga. 183, 184 (1996)

(emphasis omitted). This, in turn, led us to require that new counsel

be appointed to litigate the motion for new trial, as trial counsel

cannot litigate their own ineffectiveness. See Garland v. State, 283

Ga. 201 (2008) (holding that because an appellant must raise

ineffectiveness on a motion for new trial, and trial counsel cannot do

that, new counsel must be appointed); Smith v. State, 255 Ga. 654,

656 (1986) (stating that in Castell v. Kemp, 254 Ga. 556 (1985), we

“sustained the trial court in finding that the ethical prohibition

against a lawyer acting also as a witness precluded his presenting a

claim of ineffective assistance of counsel concerning the trial which

he, himself, had conducted”). And then our subsequent

interpretation of the Georgia Rules of Professional Conduct means

that the new counsel cannot come from the same circuit public

defender’s office that handled the trial. See In re Formal Advisory

Opinion 10-1, 293 Ga. 397 (2013) (“In re FAO 10-1”). See also Evans

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v. State, 322 Ga. 652, 682 (2025) (Peterson, C.J., concurring) (noting

that In re FAO 10-1 “has caused serious problems for the criminal

justice system in Georgia” and proposing that the Court consider

adopting a new Rule of Professional Conduct regarding conflict

imputation for public defender offices).

The result of all of this is that we have backed into a system

that prioritizes ineffectiveness claims (which have a low success

rate) in exchange for imposing serious costs. Substituting new

counsel and then litigating a motion for new trial (including an

evidentiary hearing) inevitably takes materially longer to do, even

under the best of circumstances. 3 Moreover, preventing trial counsel

from litigating (or at least being involved in) the appeal makes much

harder the litigation of claims of preserved trial court error (which

have a higher success rate). See James C. Bonner Jr., The Decline,

3 And the circumstances often are not the best; delays in substitution of

new counsel, and repeated substitutions of new counsel, often results in cases
being left adrift for years. See, e.g., Owens v. State, 303 Ga. 254, 254 n.1 (2018)
(noting that, after motion for new trial was filed, case involved “eight years of
delay in preparing the trial transcript and shuffling of Appellant’s appellate
counsel” before an amended motion for new trial was filed).
6
Fall, and Possible Resurrection of Indigent Appellate Advocacy in

Georgia, The Appellate Review, pages 1, 10–14 (Winter 2011)

(article in newsletter of State Bar of Georgia’s Appellate Practice

Section by former director of GPDC Appellate Division). Given the

shortcomings of our system, it is unsurprising to learn that we have

made ourselves an outlier. The federal government and most states

leave ineffectiveness claims for resolution on habeas. See Massaro

v. United States, 538 US 500 (2003); Ryan C. Tuck, Ineffective-

Assistance-of-Counsel Blues: Navigating the Muddy Waters of

Georgia Law after 2010 State Supreme Court Decisions, 45 Ga. L.

Rev. 1199, 1202 (2011).

Given that our system delays the resolution of nearly all

criminal direct appeals, that means that when we do reverse or

vacate a judgment, the passage of time has rendered retrial harder

(if not impossible): witnesses may have died, memories have faded,

evidence may have been lost, etc. And in those rare cases in which a

conviction is reversed for reasons that mean the law prohibits the

State from retrying the case, the defendant entitled to release has

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wasted years of their life in prison first.

We also do all of this in the most inefficient way possible. This

system forces district attorneys’ offices to divert resources from

prosecuting crimes and instead, as soon as a defendant is convicted

and sentenced, spend years relitigating all of the same issues in the

same court on the motion for new trial. It forces public defender

offices to stretch limited dollars to provide multiple lawyers to

complete a single direct appeal that takes only one lawyer in most

other states and the federal system.

No rational person would have chosen the system we have

today if presented with it as a whole. And thoughtful leaders in the

public defender community have at times advocated for change. See

Bonner, The Appellate Review, pages 1, 10–14 (criticizing “perverse”

system that encouraged “casual substitutions” of counsel to handle

ineffective assistance of counsel claims, irrespective of those claims’

seriousness). But because this system evolved slowly over decades,

we haven’t paused to consider the brokenness of the system. We

should.

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Although this Court largely created this system one decision at

a time over decades, the resulting mess now exceeds our ability to

fix it unilaterally. We could change at least some of the rules we

imposed one at a time as they arise in cases before us; for example,

we could end the requirement to raise ineffectiveness at the first

available opportunity, and (as I have previously suggested) adopt a

conflict rule specific to public defenders. But the nature of a court

changing legal rules in cases means that we can’t change them all

at once. More importantly, those changes would improve our system

only if combined with other changes that we lack the authority to

impose. For example, sending ineffectiveness claims to habeas is an

improvement only if it is paired with creating a limited statutory

right to counsel in habeas for certain claims. Taking the thousands

of ineffectiveness claims litigated each year in motions for new trial

across all 51 judicial circuits and sending them all to habeas

proceedings overseen by the relatively small handful of circuits that

house Georgia prisons would be a serious problem for judicial

workloads. And a shift of this sort would likely require budget shifts.

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All of those things — creating a limited right to counsel for some

habeas proceedings, adjusting habeas venue, and budget

adjustments — are the sort of thing that far exceeds the judicial

power.

But the good news is that the General Assembly has the power

to make at least many of these changes. Virtually all of the rules our

decisions set up are simply creatures of decisional law, not

interpretations of the Georgia or United States Constitutions that

would be much harder to alter. And the one clear constitutional

ruling in Garland (regarding the necessity of conflict-free counsel

for claims that must be raised on direct appeal) was a contingent

ruling; the constitutional holding followed from our requirement to

raise ineffectiveness at the earliest opportunity. If that procedural

rule were changed, the constitutional holding strikes me as likely to

be abrogated.

In short, the system is broken. We did a lot of the breaking. But

it will require legislative action to fix it.

I am authorized to state that Presiding Justice Warren, Justice

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Bethel, Justice McMillian, Justice LaGrua, Justice Colvin, and

Justice Pinson join in this concurrence.