Hardney v. State

Phipps, Judge. At an unreported bench trial, Allen Hardney was convicted of the misdemeanor offense of drag racing.1 In this pro se appeal, he claims that the evidence was insufficient to support his conviction and that his trial counsel was constitutionally ineffective. Because the absence of a transcript or a substitute therefor precludes review of these claims, we affirm. A person charged with a misdemeanor bears the burden of requesting a trial transcript or constructing a trial record.2 Hardney did neither. His challenge to the sufficiency of the evidence is based on material attached as an exhibit to his brief. “ ‘Exhibits contained in an appellate brief which do not appear in the record or transcript [63] cannot be considered by this court and afford no basis for reversal.’ [Cit.]”3 Hardney claims that counsel was ineffective because he failed to conduct a proper investigation and prepare a necessary legal defense. This claim, too, cannot be reviewed on the basis of the record before us. Moreover, Hardney’s failure to avail himself of the opportunity to assert his claim of ineffective assistance by motion for new trial before appeal constitutes a procedural bar to raising it now.4 Decided August 16, 2002. Allen Hardney, pro se. Richard H. Taylor, Solicitor-General, for appellee. Judgment affirmed. Andrews, P. J, and Mikell, J., concur. Footnotes [1] See OCGA § 40-6-186. [2] Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998). [3] Stebbins v. Ga. Power Co., 252 Ga. App. 261, 262 (555 SE2d 906) (2001). [4] See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Threlkeld v. State, 250 Ga. App. 44, 45 (1) (550 SE2d 454) (2001).