Murder. Thomas Superior Court. Before Judge Altman.
Allen L. Grace, pro se.
J. David Miller, District Attorney, Robert A. Auman, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Allen Lee Grace appeals the trial court's order denying his motion for an out-of-time appeal from his 1993 conviction by guilty plea. We affirm.
1. On April 19, 1991, Appellant and Willie Parris entered a grocery store in Thomas County with the intent to rob it while Appellant's uncle stood watch outside. A store employee, Anthony Justiss, was shot once in the head and died; another employee, Warren Jackson, was shot twice in the head,
leaving him blind in one eye. Appellant and his accomplices took the cash register and a cash box and fled to Grady County, where Appellant opened fire on two police officers, shooting one in the face at point blank range.
On November 7, 1991, a Thomas County grand jury indicted Appellant for the malice murder of Justiss, aggravated battery and aggravated assault against Jackson, and armed robbery, and the State later filed a notice of intent to seek the death penalty. This Court granted interim review and issued an opinion in October 1992 holding that a capital defendant does not waive a future claim of ineffective assistance of trial counsel by standing mute as instructed by counsel when the trial court, in accordance with the Unified Appeal Procedure, affords him an opportunity to state any objections he may have to his counsel or the handling of his defense. See Grace v. State, 262 Ga. 485, 485-487 (422 S.E.2d 176) (1992). In January 1993, the trial court quashed Appellant's indictment on the ground that the grand jury that returned it had not been reconvened, resworn, and recharged by the court after previously being properly summoned, sworn, and charged and then dismissed during the same term of court; this Court reversed that ruling in June 1993. See State v. Grace, 263 Ga. 220, 220-222 (430 S.E.2d 583) (1993).
In the meantime, Appellant's uncle was indicted separately on the same charges, and in May 1992, a jury convicted him on all charges; the convictions were affirmed on appeal. See Grace v. State, 262 Ga. 746 (425 S.E.2d 865) (1993). Appellant and his uncle were also indicted and tried together for the Grady County crimes, and on November 1, 1993, the Court of Appeals affirmed their convictions for [295 Ga. 658] aggravated battery of a peace officer and aggravated assault of a peace officer. See Grace v. State, 210 Ga.App. 718, 718-722 (437 S.E.2d 485) (1993).
On November 29, 1993, Appellant, who was represented by two attorneys, entered a negotiated guilty plea to the reinstated Thomas County indictment in exchange for the State's agreement not to seek the death penalty. Appellant was sentenced to consecutive terms of life in prison for murder and armed robbery and a total of 40 consecutive years for aggravated battery and aggravated assault. Almost 20 years later, on October 16, 2013, Appellant filed a pro se motion for out-of-time appeal. On October 21, 2013, the trial court denied the motion. Appellant filed a timely notice of appeal. See Stephens v. State, 291 Ga. 837, 837 (733 S.E.2d 266) (2012) (" 'The denial of a motion for out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.' " (citation omitted)).
2. (a) As this Court recently reiterated,
[o]ut-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice.
Stephens, 291 Ga. at 837-838. Appellant's motion for out-of-time appeal alleged ineffective assistance of counsel, but only with respect to the investigation of his case and the entry of his guilty plea. Appellant did not allege that ineffective assistance of counsel was the cause of his failure to file a timely direct appeal from the judgment entered on his guilty plea. Accordingly, the motion for out-of-time appeal was properly denied. See McMullen v. State, 292 Ga. 355, 356 (737 S.E.2d 102) (2013) (affirming the denial of a motion for out-of-time appeal where the defendant did not allege that his ...