McCarthy appeals from the trial court's order denying his
request for an out-of-time appeal. Finding that the trial court
did not abuse its discretion in denying the request for an
out-of-time appeal, we affirm the judgment of the trial
October 1999, McCarthy, represented by retained counsel, was
convicted in Quitman County of malice murder, possession of a
firearm during commission of a crime, concealing the death of
another, and tampering with evidence in connection with the
death of Crystal Harewood. McCarthy requested and received a
sentence review, but did not file a motion for new trial or a
notice of appeal.
took no further action in this matter until four years later,
on October 17, 2004, when he wrote a letter to the judge who
presided at his trial seeking a copy of the trial transcript.
The clerk of Quitman County Superior Court responded,
informing McCarthy that the court reporter who took down the
trial had suffered a stroke, and that the court did not have
any transcripts from that time. At approximately the same
time, McCarthy filed a petition for a writ of habeas corpus.
The petition asserted four grounds for relief: that
McCarthy's trial attorney was constitutionally
ineffective for failing to file a notice of appeal or pursue
an appeal; that the trial court erred in charging the jury on
whether or not the jury could infer an intent to kill; that
the trial court erred in failing to charge the jury on
voluntary manslaughter; and that McCarthy was denied due
process. The special assistant attorney general assigned to
McCarthy's habeas case also requested the transcript from
the clerk's office. Several weeks later, the clerk of
court filed a transcription prepared by a new court reporter
of portions of the jury trial taken down by the original
reporter, including the court's charge to the jury, the
verdict, and sentencing.
habeas court set a hearing date of March 4, 2005, and held a
hearing, at which McCarthy's trial counsel testified.
McCarthy's questioning of his trial counsel and his
testimony to the court pertained entirely to whether he was
informed of his right to appeal. On May 11, 2005, the habeas
court issued a final order denying the writ, finding that
"the gravamen of Petitioner's claim is that he
received ineffective assistance of counsel for counsel's
failure to timely file a notice of appeal." The habeas
court found that McCarthy failed to show that his trial
counsel was deficient, specifically finding that both the
trial court and McCarthy's trial counsel advised him of
his right to appeal and that McCarthy's "failure to
pursue a direct appeal was due solely to his own
inaction." McCarthy's application for a certificate
of probable cause to appeal to this court was denied on
October 2, 2006.
December 18, 2006 and January 20, 2007, McCarthy filed pro se
motions styled "Out-of-Time Motion For New Trial, "
which amounted to extraordinary motions for new trial. The
trial court denied both motions on August 10, 2007. McCarthy
filed a timely notice of appeal to the Court of Appeals. The
appeal was transferred to this Court, which dismissed the
appeal on January 7, 2008, because McCarthy failed to file an
application for a discretionary appeal.
three years later, on July 15, 2011, McCarthy again wrote to
the clerk of Quitman County Superior Court seeking the trial
transcript. The clerk responded that no transcripts had been
received, noting that the court reporter who succeeded the
original reporter had likewise retired after becoming ill,
and suggesting that McCarthy contact his attorney. On October
3, 2011, appearing pro se, McCarthy filed a motion for an
out-of-time appeal and an extraordinary motion for new trial.
On February 22, 2012, McCarthy filed a motion for appointment
of counsel and to proceed in forma pauperis. The trial court
appointed counsel, who, on April 10, 2012, entered an
appearance on McCarthy's behalf. Over three years later,
on April 30, 2015, counsel filed an amended extraordinary
motion for new trial and request for an out-of-time appeal,
and a brief in support. The motion and brief alleged that
McCarthy was deprived of his due process rights with regard
to a direct appeal of his conviction and representation by
counsel. The trial court denied both motions, ruling that
McCarthy's habeas petition in 2005 and his motion for an
out-of-time appeal in 2007 raised the same issues and had
been decided adversely to McCarthy. From this order, McCarthy
McCarthy's first enumeration of error, he asserts that
the trial court erred in holding that his most recent motion
for an out-of-time appeal was barred by res judicata,
collateral estoppel, or issue preclusion.
grant or denial of a motion for an out-of-time appeal is
reviewed under an abuse of discretion standard.
[T]he starting point in this Court's review of the denial
of a motion for an out-of-time appeal is the recognition that
a criminal defendant has an appeal of right from a final
judgment of conviction and sentence, but that such an appeal
of right has to be undertaken consistent with the laws of
appellate procedure, and if it is not, the defendant may
forfeit the right of appeal. Furthermore, out-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. Whether the circumstances
of a particular case warrant an out-of-time appeal is a
question committed in the first instance to the trial courts.
(Citations and punctuation omitted.) Waller v.
State, 299 Ga. 619, 621-622 (791 S.E.2d 67) (2016).
v. State, 293 Ga. 33 (743 S.E.2d 391) (2013), presents
remarkably similar facts. Thirteen years after his
conviction, Sessions moved for an out-of-time appeal,
contending that his right to an appeal was denied by his
trial attorneys. He had asserted the same claim, however, in
a habeas corpus petition filed one year after his conviction.
We affirmed the trial court's denial of his motion for an
out-of-time appeal, observing, "Since the habeas court
found that appellant had forfeited his right to appeal
through his own inaction and the habeas court decided the
issue of ineffective assistance of counsel adversely to
appellant, he is now precluded under the doctrine of
collateral estoppel from re-litigating the merits of the
issue." (Citations and footnote omitted.) Id.
allegations in McCarthy's most recent request for an
out-of-time appeal are all claims that were raised in earlier
pleadings and resolved adversely to his position. While
McCarthy asserts that his constitutional claims were never
addressed, this assertion is not borne out by the record. His
claims therefore are barred by the doctrine of collateral
estoppel. "It is axiomatic that the same issue cannot be
relitigated ad infinitum." (Citations and punctuation
omitted.) Nally v. Bartow County Grand Jurors, 280
Ga. 790, 791 (3) (633 S.E.2d 337) (2006). The trial court did
not abuse its discretion in denying McCarthy's motion for
an out-of-time appeal.
McCarthy also enumerates as error the denial of his request
for an out-of-time appeal because the unavailability of the
trial transcript made it impossible for him to timely file
his appeal. But this claim of error was neither raised nor
ruled on below, as McCarthy did not assert it in his most
recent request for an out-of-time appeal. "Errors not
raised in the trial court will not be heard on appeal.
[Cit.]" Earnest v. State, 262 Ga. 494, 495 (1)
(422 S.E.2d 188) (1992). Moreover, even if this contention
had been preserved for appeal, it is without merit. As noted
in Division 1, McCarthy never filed a timely motion for new
trial or notice of appeal, and he did not request the trial
transcript until five years after his conviction. The absence
of portions of the transcript at a much later time did not
"effectively deprive Appellant of his right to appeal,
" as McCarthy contends. The habeas court has already
determined that McCarthy's "failure to pursue a
direct appeal was due solely to his own inaction, "
which occurred years before it was discovered that portions
of the trial transcript were lost. This distinguishes
Sheard v. State, 300 Ga. 117 (793 S.E.2d 386)
(2016), relied upon by McCarthy. Sheard acted diligently in
pursuing his appeal, filing a timely motion for new trial;
only thereafter was it discovered that crucial portions of
the trial transcript were missing. Id. at 119 (2).
McCarthy, in contrast, failed to pursue an appeal and did not
seek to obtain the transcript until five years after his