Reconsideration denied October 20, 2014.
Murder. Forsyth Superior Court. Before Judge Bagley.
McNeill Stokes, for appellant.
Penny A. Penn, District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
This is the second appearance of this case in this Court. In Louis F. Trauth's first appeal, in which, as explained more fully below, Trauth was improperly forced to proceed pro se, this Court affirmed the trial court's decision to deny Trauth's motion to withdraw his guilty plea for malice murder. See Trauth v. State, 283 Ga. 141 (657 S.E.2d 225) (2008). New counsel began representing Trauth after his first appeal, and this new counsel filed a habeas petition on Trauth's behalf on September 16, 2008. Following a hearing, the habeas court granted the petition on January 15, 2014, granting Trauth " an out-of-time direct appeal from the trial court's denial of [Trauth's] motion to withdraw his guilty plea." See Roberts v. Caldwell, 230 Ga. 223 (196 S.E.2d 444) (1973) (proper remedy for defendant who was improperly denied counsel and forced to proceed pro se in his first direct appeal was to allow him to pursue second, out-of-time, direct appeal). The habeas court also gave Trauth thirty days " to pursue post conviction remedies." Trauth then filed a Notice of Out-of-Time Appeal on February 10, 2014, which placed this case before us for a second time. On appeal, he argues, among other things, that his trial counsel and post conviction counsel were ineffective. For the reasons that follow, we affirm.
The record reveals that Trauth pled guilty on August 2, 2006, to the malice murder of his wife. The facts at the guilty plea hearing revealed that, approximately two weeks before the murder, Trauth's wife had told him that she was having an affair. On the day of the murder, Trauth recorded an audiotape. In the tape, he explained to his children that, by the time they found the tape, he would have killed himself and his wife. The recording then stops, and, when it starts again, Trauth explains that he has killed his wife and that he [295 Ga. 875] now intends to kill himself. However, rather than committing suicide, Trauth called one of his daughters who, in turn, alerted the police. When police arrived at the Trauths' home, Trauth's wife's body was discovered in the garage. She had been shot twice in the head at close range. Police recovered a bullet from a couch cushion in an upstairs living room, and there was evidence that Trauth had tried to clean blood from the couch. A second bullet was found in the garage next to the body. At the guilty plea hearing, Trauth fully admitted to the murder of his wife.
On November 14, 2006, Trauth filed a pro se motion to withdraw his guilty plea and a motion for the appointment of counsel. New counsel was appointed to represent Trauth, and this counsel filed an amended motion to withdraw Trauth's guilty plea on March 1, 2007. The transcript of the hearing on Trauth's motion to withdraw his guilty plea shows that, in discussions with his attorneys following his arrest, Trauth provided additional details about the murder. Trauth explained that he initially shot his wife while she was sleeping on the upstairs couch. He then dragged her to the garage where he discovered that she was still breathing. At that point, Trauth attempted to suffocate his wife with plastic sheeting, but, when that did not work, he shot her a second time. Shortly thereafter, police arrived at his home. The trial court stated at the hearing that Trauth's motion to withdraw his guilty plea was being denied. The attorney who represented Trauth at the hearing on his motion to withdraw the guilty plea then withdrew from representing Trauth with the trial court's permission. However, the trial court never informed Trauth that, as an indigent, he was entitled to appointed counsel on appeal from the denial of his motion to withdraw his guilty plea. Trauth was then left to pursue his first appeal pro se, and this Court affirmed the trial court's decision to deny Trauth's motion, finding that Trauth's claims of ineffective assistance of counsel were without merit. See Trauth, supra.
1. As an initial matter, the habeas court was correct to conclude that Trauth, as an indigent, was entitled to the appointment of new counsel for his first appeal after his post-conviction counsel was allowed to withdraw from representing him. Indeed,
[i]t is beyond question that an indigent has the right to appointed counsel to assist him on direct appeal. Douglas v. California, 372 U.S. 353 (83 S.Ct. 814, 9 L.Ed.2d 811) (1963); and, an individual desiring an appeal need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of [295 Ga. 876] appellate counsel. Swenson v. Bosler, 386 U.S. 258 (87 S.Ct. 996, 18 L.Ed.2d 33) (1967).
Roberts, supra, 230 Ga. at 224. Furthermore, where, as here, a pro se defendant has been improperly denied counsel for his first appeal, he is entitled to relief in the form of having counsel appointed " to determine if there is any justifiable ground for an appeal from the original convictions, and if such determination is in the affirmative, ... file[ ] and prosecute[ ] [a new direct appeal] with [the] benefit of counsel." Id. In this regard, because the defendant now has the benefit of counsel to pursue on appeal " any justifiable ground" relating to his original convictions (or, in this case, his guilty plea), even those issues that were raised by the defendant in his first pro se appeal can be considered anew in his second appeal. In this sense, much in the way that the grant of a new trial has the effect of " set[ting] aside all proceedings in the old trial," Reagan v. Reagan, 221 Ga. 173, 174 (143 S.E.2d 736) (1965), the grant of a new appeal to a defendant who was improperly forced to proceed pro se in his first appeal would have the effect of eliminating any proceedings relating to that defendant's first appeal.
It is important to note that cases such as the instant one in which a defendant is improperly deprived of any attorney at all for his first appeal are distinguishable from those cases where a defendant has an attorney who prosecutes the defendant's first appeal but renders ineffective assistance for that appeal. In cases where a defendant has an ineffective appellate attorney who prosecutes the defendant's first direct appeal, the defendant is not entitled to a new appeal as a remedy for that counsel's ineffectiveness. See, e.g., Milliken v. Stewart, 276 Ga. 712 (583 S.E.2d 30) (2003) (habeas court erred in ordering second direct appeal as remedy for appellate counsel's ineffectiveness in failing to raise meritorious issue in first appeal). See also Richards v. State, 275 Ga. 190, 191 (563 S.E.2d 856) (2002) (Where the defendant was represented by counsel in his first direct appeal in 1993 [ Richards v. State, 263 Ga. 65 (428 S.E.2d 84) (1993)], and his conviction was affirmed in that appeal, the defendant could not obtain an out-of-time appeal nine years later, as he was " not entitled to a second direct appeal from his judgment of conviction" ). Instead, the proper remedy to ameliorate an appellate counsel's ineffectiveness for failing to raise a meritorious issue on appeal is " to order a new trial." Milliken, supra, 276 Ga. at 714. This is so because, in those appeals where an outright acquittal would not be the appropriate remedy for a successful appeal, counsel's failure to raise a meritorious issue on appeal necessarily would have caused the defendant's conviction to be affirmed rather than reversed, which in turn would have deprived the [295 Ga. 877] defendant of the new trial that he would have otherwise received had his appeal been properly presented. See Nelson v. Hall, 275 Ga. 792, 793-794 (573 S.E.2d 42) (2002) (To establish ineffective assistance of appellate counsel, a defendant must show " that appellate counsel was deficient in failing to raise an issue on appeal" and that " a reasonable probability [exists] that the outcome of the appeal would have been different" had the issue been raised.) (citations and punctuation omitted); Stanford v. Stewart, 274 Ga. 468, 471 (2) (554 S.E.2d 480) (2001) (where appellate counsel's deficient failure to raise meritorious issue on appeal deprived defendant of a new trial, prejudice to defendant was " obvious" ). In this sense, where an appellate ...