Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reid v. State

Court of Appeals of Georgia, Second Division

March 5, 2018

REID
v.
THE STATE.

          MCFADDEN, P. J., and MCMILLIAN, J.

          Miller, Presiding Judge.

         This is the second appearance of this pro se out-of-time appeal before this Court. In Reid v. State, 339 Ga.App. 772, 778 (792 S.E.2d 732) (2016) (physical precedent only), reconsideration denied (Dec. 7, 2016), cert. denied (June 5, 2017) ("Reid I"), this Court held that Reid's attempt to withdraw his guilty plea could not serve as a basis for an out-of-time appeal as it lacked merit, but that given the validity of his merger claim, an evidentiary hearing was necessary to determine if ineffective assistance of counsel caused his failure to timely appeal. On remand, the trial court held an evidentiary hearing on the issue of the merger of two of Reid's convictions, as well as Reid's claim of ineffective assistance of counsel. Reid moved for appointment of counsel and to withdraw his guilty plea. The trial court implicitly denied Reid's motion to appoint counsel, denied Reid's motion to withdraw his guilty plea, found that the felony and misdemeanor obstruction convictions did not merge, and denied Reid's motion for out-of-time appeal upon deciding that Reid had not established ineffective assistance of counsel. This appeal followed, and for the following reasons, we affirm the trial court's refusal to appoint counsel, as well as the denial of Reid's motion to withdraw guilty plea, reverse the trial court's finding that Reid is not entitled to an out-of-time appeal, and vacate its ruling as to merger.

As we stated in Reid I,
A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel [regarding failure to pursue a direct appeal] are not reached unless the requirement that the appeal [can] be resolved by reference to facts on the record is met.

(Citation omitted.) Reid I, supra, 339 Ga.App. at 773 (1).

         So viewed, and as more fully explained in Reid I, Reid pled guilty on August 19, 2014, to possession with intent to distribute cocaine, two counts of aggravated assault on a peace officer, two felony counts of obstruction of a peace officer, and two misdemeanor counts of obstruction of a peace officer. Reid I, supra, 339 Ga.App. at 732. Reid sought an out-of-time appeal, arguing that he should be allowed to withdraw his guilty plea and that some of his convictions should have merged. Id. This Court held that the record demonstrated that Reid's guilty plea was knowing and voluntary, thus, it could not serve as the basis for an out-of-time appeal. Id. at 774-775 (1). We also held, however, that at least two of Reid's convictions should have merged, and two others possibly should have merged. Id. at 776-777 (2) (a) - (b). For this reason, we found that a direct appeal of Reid's conviction would have had merit and, accordingly, the trial court was required to hold an evidentiary hearing as to whether ineffective assistance of counsel was the reason Reid's conviction was not timely appealed. Id. at 778 (2) (c).

         On remand, after Reid filed a motion for appointment of counsel and another motion to withdraw guilty plea, the trial court held an evidentiary hearing. At the hearing, the trial court heard testimony from Reid and the two officers involved in the altercation that served as the basis for Reid's convictions. Although most of Reid's testimony concerning the ineffectiveness of his trial counsel related to counsel's alleged lack of preparation and his advice that Reid accept the State's plea offer, Reid also testified as follows: "[I]f I had've know (sic) that I could appeal this, you know, I would. I would have, you know, before the time ran out. But I didn't even know anything until I got to prison and started trying to learn . . ." The State attempted to subpoena Reid's trial counsel to testify at the hearing, but determined that he had retired and moved to Alaska. The State suggested, however, that the issue of ineffective assistance of counsel could be decided without its witness. Therefore, the trial court proceeded without the testimony of trial counsel with the understanding that if the trial court believed trial counsel's testimony was necessary, it would continue the hearing so his testimony could be secured.

         Ultimately, the trial court implicitly denied Reid's motion for Reid counsel; denied his motion to withdraw his guilty plea; found that the convictions for felony and misdemeanor obstruction did not merge; and denied Reid's motion for an out-of-time appeal upon finding Reid was not prejudiced by any alleged ineffective assistance of counsel. Reid appeals.

         1. Reid contends that the trial court erred in failing to appoint him counsel on remand. We disagree.

An indigent defendant is entitled to representation by counsel only for trial and for the direct appeal from the judgment of conviction and sentence. . . [B]ecause a motion for an out-of-time appeal cannot be construed as part of a criminal defendant's first appeal of right, [Reid] was not entitled to the assistance of appointed counsel.

(Citations and punctuation omitted.) Pierce v. State, 289 Ga. 893, 894 (1) (717 S.E.2d 202) (2011). Here, Reid did not timely move to withdraw his guilty plea or timely appeal his conviction. Thus, Reid was not entitled to appointed counsel on remand. See id.

         2. Reid also alleges the trial court erred in failing to vacate the sentences that this Court found should have merged. We disagree.

         In Reid I, this Court held that two of Reid's convictions, for aggravated assault on Officer Brock and felony obstruction of Officer Brock, should have merged. Reid I, 339 Ga.App. at 777 (2) (a). However, in Reid I this Court did not instruct the trial court to vacate any of the convictions. Rather, the holding that the aggravated assault and felony obstruction convictions should have merged was made in the context of establishing that Reid alleged a meritorious appellate issue, which could open the door to consideration of whether Reid's failure to timely appeal was due to ineffective assistance of counsel. Id. On remand, therefore, the trial court was instructed to hold a hearing to determine if the ineffectiveness of Reid's trial counsel frustrated his right to a direct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.