See 28 U.S.C.A. § 2254. Balkcom v. Roberts, 1965, 221 Ga. 339, 144 S.E.2d 524, 525. The original record on this appeal did not contain the testimony of the applicant other than his affidavit attesting to the truth of the facts stated in his application.
The judge questioned the attorney about the appeal, who stated that the appellant had no valid ground for appeal. "`The advisability of appealing a judgment of conviction is a question which appointed counsel who heard the evidence and observed the conduct of his client's trial has a right to determine. Cobb v. State, 218 Ga. 10 ( 126 S.E.2d 231); Balkcom v. Roberts, 221 Ga. 339 ( 144 S.E.2d 524).' Buxton v. Brown, 222 Ga. 564 (1) ( 150 S.E.2d 636)." Blackmon v. Smith, 226 Ga. 849 ( 178 S.E.2d 176). Under these facts and circumstances, we cannot say that the appellant was denied an appeal of his case.
His attorney may well have determined that the four-year sentence called for by the jury's verdict was satisfactory, and rather than risking the consequences of another trial therefore declined to participate in a motion for new trial in order to lay the foundation for an appeal. The responsibility in determining whether to appeal rests upon counsel. Balkcom v. Roberts, 221 Ga. 339 (2) ( 144 S.E.2d 524); Givens v. Dutton, 222 Ga. 756, 758 ( 152 S.E.2d 358); Blackmon v. Smith, 226 Ga. 849, 850 ( 178 S.E.2d 176). Since there was no error in the proceedings, the judgment is
"The advisability of appealing a judgment of conviction is a question which appointed counsel who heard the evidence and observed the conduct of his client's trial has a right to determine. Cobb v. State, 218 Ga. 10 ( 126 S.E.2d 231); Balkcom v. Roberts, 221 Ga. 339 ( 144 S.E.2d 524)." Buxton v. Brown, 222 Ga. 564 (1) ( 150 S.E.2d 636). Since the evidence shows that appellant's appointed counsel made an affirmative determination, as was his right to do in conducting his defense, that no basis for an appeal existed, it does not appear that the appellant was denied the right to counsel on appeal.
No copy of the motion for new trial is included in the record before us. In Balkcom v. Roberts, 221 Ga. 339 (2) ( 144 S.E.2d 524), this court held that, "A sentence is not necessarily void where counsel for one convicted of crime declines to appeal his case though requested by his client to do so ..." It also stated: "His attorneys ... heard the evidence which the State introduced against him and it is reasonable to assume that they were of the opinion that another trial before a different jury might result in punishment much more severe than he had received. Whether it was advisable and to his best interest to seek and obtain a new trial for him was a decision which his attorneys ought to have made and evidently did make for their illiterate client... In the circumstances of this case a holding that counsel's decision not to seek a new trial for their client would void his conviction ... would in many criminal trials conceivably deprive the accused of intelligent and proper representation in the courts.
The advisability of appealing a judgment of conviction is a question which appointed counsel who heard the evidence and observed the conduct of his client's trial has a right to determine. Cobb v. State, 218 Ga. 10 ( 126 S.E.2d 231); Balkcom v. Roberts, 221 Ga. 339 ( 144 S.E.2d 524). To insure a proper administration of the criminal law, this court should not and will not countenance a contention so lacking in merit as the one here made.
"A sentence is not necessarily void where counsel for one convicted of crime declines to appeal his case though requested by his client to do so." Balkcom v. Roberts, 221 Ga. 339 (1) ( 144 S.E.2d 524). As was said by our Supreme Court in that case at p. 343, "[W]e are unwilling to substitute our judgment for that of his counsel who heard the evidence against him and observed the conduct of his trial." Moreover, it should be noted defendant received the minimum of one year rather than a greater sentence permissible by statute up to five years.