2012, Richard Terrance Ringold pled guilty to four counts of
murder, one count of aggravated assault, and five counts of
possession of a firearm during the commission of a felony,
arising out of the shooting deaths of four victims and the
wounding of a fifth. Ringold was sentenced to concurrent terms
of life imprisonment without the possibility of parole for
each murder and terms of years on the other convictions.
Approximately one month later, he moved to withdraw his plea,
and his motion was denied after a hearing. Nearly four years
later, he moved to file an out-of-time appeal, which the
trial court denied summarily and without holding a hearing.
Proceeding pro se, he appeals that denial, asserting that
both the trial court and his motion-to-withdraw counsel erred
by failing to advise him of his right to appeal the denial of
his motion to withdraw his guilty plea. For the reasons
stated below, we vacate and remand with direction to the
trial court to conduct a hearing on the matter.
to the indictment to which Ringold pled guilty, Ringold shot
and killed four individuals: Atania Butler, Rico Zimmerman,
Jhane Thomas, and Lakeisha Parker. Ringold also shot N. A., a
seven-year-old, but she survived. During three days of trial,
in which the State was seeking the death penalty, the State
presented multiple witnesses, including an eyewitness and
Ringold's girlfriend, and it planned to call N. A. to
testify. Ringold's trial counsel advised him that N. A.
was the next and last witness, and there would be no
opportunity to plead guilty after her testimony. As the
courtroom was being cleared of the press before N. A. took
the stand, Ringold decided to plead guilty in exchange for
the State's agreement not to seek the death penalty.
During the plea colloquy, the State and trial court asked
Ringold a series of questions to ensure that he was
knowingly, voluntarily, and intelligently waiving his rights
and pleading guilty. The court accepted Ringold's guilty
plea to all of the crimes charged and sentenced him.
one month later, Ringold timely moved to withdraw his guilty
plea, and the trial court held an evidentiary hearing on his
motion. At the hearing, at which Ringold was represented by
new counsel, Ringold testified that he did not commit the
crimes; he lied to the judge during his plea colloquy; and
his trial counsel failed to conduct an investigation and hire
the experts that he had requested, pressured and coerced him
to enter his guilty plea, and advised him to lie to the court
so that he could then withdraw his plea.
Ringold's trial counsel testified that they did not
force, pressure, or coerce Ringold into entering his guilty
plea, and the decision to enter the guilty plea was
Ringold's. When asked how the decision to plead guilty
came about, counsel testified that, at trial, after the
next-to-last witness had testified but before N. A. was to
testify, Ringold was very disappointed about his
girlfriend's testimony because he had assumed that she
was going to change her story in his favor, and she did not.
He asked to talk to counsel, and counsel advised him that, if
he could plead guilty and avoid the death penalty, he should
conclusion of the hearing, the trial court announced that it
would deny Ringold's motion to withdraw. The trial court
did not mention Ringold's right to appeal on the record.
On November 12, 2013, the trial court entered an order
denying the motion, which again did not mention Ringold's
right to an appeal.
filed a pro se motion for an out-of-time appeal in 2017,
arguing that his motion-to-withdraw counsel was ineffective
under the Sixth Amendment to the United States Constitution
because counsel was deficient in not advising him of his
right to appeal, and that deficient performance prejudiced
him because it deprived him of an appeal, where he might have
prevailed. On October 19, 2017, the trial court denied
Ringold's motion summarily and without holding a hearing.
sole enumeration of error, Ringold contends that the trial
court and his motion-to-withdraw counsel failed to advise him
of his right to appeal the denial of his motion to withdraw
his guilty plea. Citing Carter v. Johnson, 278 Ga.
202 (599 S.E.2d 170) (2004), Ringold claims that he is
therefore entitled to an out-of-time appeal. The Attorney
General argues that Ringold's claim -- that he is
entitled to an out-of-time appeal because the trial court
failed to inform him of his right to appeal -- is not
properly before us because Ringold failed to assert it in his
motion for an out-of-time appeal. However, as to
Ringold's claim that his counsel was ineffective, the
Attorney General agrees that Carter applies and that
Ringold is entitled to a hearing to determine who bore the
ultimate responsibility for the failure to appeal. The
District Attorney, on the other hand, argues that Ringold is
not entitled to a hearing because he has failed to
demonstrate prejudice from the purported ineffective
assistance of counsel.
is well settled that errors not raised in the trial court
will not be heard on appeal." (Citations and punctuation
omitted.) Hollins v. State, 287 Ga. 233, 233-234
(695 S.E.2d 23) (2010). We therefore agree with the Attorney
General that Ringold's claim of trial court error has
been waived, as Ringold failed to raise it in his motion for
an out-of-time appeal.
Ringold's claim that his motion-to-withdraw counsel was
ineffective, we also agree with the Attorney General that the
case should be remanded for a hearing. However, the
controlling authority here is Roe v. Flores-Ortega,
528 U.S. 470, 476-477 (II) (A) (120 S.Ct. 1029, 145 L.Ed.2d
985) (2000), not Carter, supra. While this Court has
decided many cases dealing with motions for out-of-time
appeal, we must follow the instruction of the United States
Supreme Court to analyze counsel's effectiveness under
the Sixth Amendment, as it is a fundamental principle that
this Court is "bound by the Constitution of the United
States as its provisions are construed and applied by the
Supreme Court of the United States." Coley v.
State, 231 Ga. 829, 832 (I) (204 S.E.2d 612) (1974); see
Lejeune v. McLaughlin, 296 Ga. 291, 298 (2) (766
S.E.2d 803) (2014) ("[E]ven the venerable doctrine of
stare decisis does not permit us to persist in an error of
federal constitutional law." (Emphasis in
now well established that a defendant who timely seeks to
withdraw a guilty plea is entitled to the assistance of
counsel. Fortson v. State, 272 Ga. 457, 460 (1) (532
S.E.2d 102) (2000). A defendant also has both the right to
appeal the denial of his motion to withdraw guilty plea and
the right to the effective assistance of counsel as
guaranteed by the Sixth Amendment for that appeal. See OCGA
§ 5-6-33 (a) (1); Carter, supra, 278 Ga. at 205
(2); Evitts v. Lucey, 469 U.S. 387, 396 (II) (C)
(105 S.Ct. 830, 83 L.Ed.2d 821) (1985) (stating that
"[a] first appeal of right . . . is not adjudicated in
accord with due process of law if the appellant does not have
the effective assistance of an attorney").
OCGA § 5-6-38 (a) generally requires that a notice of
appeal be filed within 30 days of the appealable decision or
judgment complained of, Georgia courts may excuse compliance
with that statutory requirement "where necessary to
avoid or remedy a constitutional violation concerning the
appeal," such as when counsel was ineffective in filing
the notice of appeal. Gable, supra, 290 Ga. at 85-86
(2) (b). For a defendant who did not receive his first appeal
of right because of his counsel's ineffective assistance,
the remedy is an out-of-time appeal. Rowland v.
State, 264 Ga. 872, 875 (2) (452 S.E.2d 756) (1995); see
Gable, supra, 290 Ga. at 85. This remedy has been
judicially created in Georgia. Rowland, supra, 264
Ga. at 875.
defendant's claim that his counsel was ineffective in
failing to file a notice of appeal is reviewed under the
familiar standard of Strickland v. Washington, 466
U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).
Flores-Ortega, supra, 528 U.S. at 476-477 (II).
"A defendant claiming ineffective assistance of counsel
must show (1) that counsel's representation fell below an
objective standard of reasonableness, and (2) that
counsel's deficient performance prejudiced the
defendant." (Citations and punctuation omitted.)
determine whether counsel was constitutionally ineffective
for failing to file a timely notice of appeal, the first
question that must be answered is whether counsel
"consulted" with the defendant about an appeal -
that is, whether counsel "advis[ed] the defendant about
the advantages and disadvantages of taking an appeal, and
ma[de] a reasonable effort to discover the defendant's
wishes." Id. at 478 (II) (A). If counsel
adequately consulted with the defendant, counsel performed