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Ringold v. State

Supreme Court of Georgia

January 22, 2019

RINGOLD
v.
THE STATE.

          BOGGS, JUSTICE.

         In 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.[1] 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.

         According 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.

         Approximately 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.

         However, 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 do it.

         At the 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.

         Ringold 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.

         In his 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.

         "[I]t 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.[2]

         As to 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 original.)).

         It is 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").

         While 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.

         A 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.) Id.

         To 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 ...


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