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Collier v. State

Supreme Court of Georgia

October 21, 2019

COLLIER
v.
THE STATE.

          ELLINGTON, JUSTICE.

         The Superior Court of Macon County denied, without a hearing, Cordalero Collier's motion for an out-of-time appeal from the judgment of conviction entered on his guilty plea. Collier contends the trial court erred in denying his motion without considering whether his plea counsel's alleged ineffective assistance deprived him of his right to an appeal. For the following reasons, we vacate the trial court's order and remand this case.

         The facts relevant to this appeal are as follows. A Macon County grand jury indicted Collier in November 2008 for a number of offenses, including murder. On September 9, 2009, with the assistance of counsel, Collier entered a negotiated guilty plea to felony murder and the trial court entered an order of nolle prosequi on the remaining counts. Following the plea hearing, the court sentenced Collier to serve life in prison. On October 1, 2018, Collier filed a pro se motion for an out-of-time appeal, contending, inter alia, that his plea counsel was ineffective for failing to inform him of his right to an appeal. Collier contended in his motion for out-of-time appeal that, immediately after the superior court sentenced him and explained his right to appeal, he "informed his counsel that he wanted to withdraw his plea and file an appeal of his conviction." The trial court, after reviewing "the record and applicable law," summarily denied Collier's motion on December 20, 2018.

         In his pro se appellate brief, Collier argued that the trial court erred in denying his motion for an out-of-time appeal without conducting a hearing. On March 18, 2019, after appointing pro bono appellate counsel for Collier, this Court ordered the parties to file supplemental briefs addressing whether the following authority is pertinent to the resolution of this appeal: Garza v. Idaho, ___ U.S.___ (139 S.Ct. 738, 203 L.Ed.2d 77) (2019); Roe v. Flores-Ortega, 528 U.S. 470 (120 S.Ct. 1029, 145 L.Ed.2d 985) (2000); and Ringold v. State, 304 Ga. 875 (823 S.E.2d 342) (2019). After the parties filed their supplemental briefs, this Court heard oral arguments.

         Collier contends that the trial court abused its discretion in denying his motion for an out-of-time appeal from the judgment of conviction entered on his guilty plea without conducting a hearing and inquiring into whether his counsel's alleged ineffective assistance deprived him of his appeal of right. Both Collier and the State agree that, before this Court addresses this claim of error, we must evaluate whether the body of relevant Georgia case law remains viable in light of the cases that we asked them to address in their briefs. Indeed, we asked them to address those cases because, as we stated in Ringold, supra, Georgia's case law concerning out-of-time appeals is in need of correction. We were not required to overrule that precedent in Ringold; this case, however, requires that we reexamine, disapprove, and overrule a significant body of our case law concerning out-of-time appeals and appeals from judgments of conviction entered on guilty pleas. We acknowledge that our decision today is a departure from established Georgia post-conviction criminal procedure in important respects.

         We start by examining the substantive test that a trial court must apply in determining whether a criminal defendant is entitled to an out-of-time appeal from a final judgment of conviction, and we evaluate how that test applies to the subset of cases where the defendant seeks an out-of-time appeal from a judgment of conviction entered on a guilty plea. Thereafter, we consider the appropriate procedural vehicle for requesting an out-of-time appeal and whether the State may raise a "prejudicial delay" defense to a motion for an out-of-time appeal. Finally, we consider the application of the law to the facts in Collier's case, which requires us to remand the case to the trial court.

         1. A criminal defendant is entitled to an out-of-time appeal if his counsel's constitutionally deficient performance deprived him of an appeal of right that he otherwise would have pursued. As this Court has explained,

before being entitled to an out-of-time appeal, a defendant must allege and prove an excuse of constitutional magnitude for failing to file a timely direct appeal, which usually is done by showing that the delay was caused by his trial counsel's ineffective assistance in providing advice about or acting upon an appeal.

(Citation omitted.) Bailey v. State, ___ Ga.___ (828 S.E.2d 300, 301) (2019). A defendant who does not allege and prove such an excuse for failing to file a timely direct appeal is not entitled to an out-of-time appeal. Id. If the constitutional violation alleged by the defendant is ineffective assistance of counsel in providing advice about or acting upon an appeal of right, that violation "is reviewed under the familiar standard of Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)." (Citation omitted.) Ringold, 304 Ga. at 879. To meet his burden of proving that counsel's ineffectiveness deprived him of his right to an appeal, the criminal defendant 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. at 879.

         With respect to the first component of the Strickland standard, the defendant must show that his appeal of right was lost as a consequence of his counsel's deficient performance, and the trial court must make a factual inquiry into those allegations. Id.[1] With respect to the second component of the Strickland standard, the defendant is required to demonstrate only that there is a reasonable probability that, but for counsel's deficient performance, "he would have timely appealed." (Citation and punctuation omitted.) Id. at 881.

The United States Supreme Court has squarely rejected the argument that the defendant must show that he would have actually prevailed in a timely appeal, as well as "any requirement that the would-be appellant specify the points he would raise were his right to appeal reinstated," as "it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal." (Citations, punctuation and emphasis omitted.) [Flores-Ortega, 528 U.S.] at 485-486 (II) (B) (3). Instead, "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken," the defendant is entitled to an appeal because he effectively has been deprived of an appellate proceeding altogether. Id. at 483-484 (II) (B) (2) and (3).

Ringold, 304 Ga. at 881.

         This standard applies whether a defendant seeks an out-of-time appeal from a final judgment of conviction entered following a trial or following a guilty plea. See Flores-Ortega, 528 U.S. at 476-477 (II) (B) ("Today we hold that this test applies to claims, like respondent's, that counsel was constitutionally ineffective for failing to file a notice of appeal [following the entry of his guilty plea.]"). See also Garza, 139 S.Ct. at 747 (II) (D) ("[W]e reaffirm that, when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal, with no need for a further showing of his claims' merit, regardless of whether the defendant has signed an appeal waiver [that was included in his guilty plea agreement]." (citation and punctuation omitted)); White v. State, 277 Ga. 647, 648 (594 S.E.2d 329) (2004) (To obtain an out-of-time appeal from a judgment entered following a trial, the defendant need only show that the procedural deficiency in not filing a timely appeal was due to counsel's failure to perform his duties, and he does not need "'to demonstrate that his hypothetical appeal might have had merit.'" (citing Flores-Ortega, 528 U.S. at 486 (II) (B) (3)). In short, "[w]hen counsel's deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal." Garza, 139 S.Ct. at 749 (III).

         Unfortunately, we have long erroneously held that a defendant seeking an out-of-time appeal directly from a judgment entered on a guilty plea must satisfy the prejudice component of the Strickland standard by showing that his appeal would have had merit. See Ringold, 304 Ga. at 881 n.3. We have also held that, if the defendant cannot show that his appeal would have had merit, the trial court may forgo an inquiry into whether counsel's performance with respect to the appeal was constitutionally deficient. For example, in Stephens v. State, this Court held that,

in deciding a motion for out-of-time appeal, the trial court must hold an evidentiary hearing to determine whether defense counsel's unprofessional conduct was the cause of the untimeliness only where the motion raises an issue that would have been meritorious on the existing record had a timely appeal been taken.

(Citations omitted.) 291 Ga. 837, 839 (2) (291 S.E.2d 837) (2012). Because the holding in Stephens conflicts with controlling United States Supreme Court precedent, it and other opinions with similar holdings from this Court and the Court of Appeals are overruled.[2]

         We also overrule a peculiar line of cases where we have held that a criminal defendant's right to appeal directly from a judgment entered on a guilty plea is qualified in scope; that is, the right to appeal is limited to those cases in which the issue on appeal can be "resolved by facts appearing in the record." That line of cases has its genesis in Morrow v. State, 266 Ga. 3, 3-4 (463 S.E.2d 472) (1995) (affirming the denial of a defendant's motion for an out-of-time appeal from his conviction entered on a guilty plea). In Morrow, a bare majority of this Court held that "an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record." (Citation omitted; emphasis supplied.) Id. The holding in Morrow is dubious, given the unequivocal statutory language to the contrary.[3] Nevertheless, it became entrenched in our precedent concerning out-of-time appeals.[4] It even created some confusion concerning the case law pertaining to motions for an out-of-time appeal from a judgment of conviction entered after trial.[5]

         Over the years, several Justices of this Court expressed the belief that the "facts appearing in the record" language from Morrow was "nothing more than a restatement of the judicial maxim that an appellate court is required to decide cases on the facts contained in the record." (Citation omitted.) Caine v. State 266 Ga. 421, 423 (467 S.E.2d 570) (1996) (Benham, C. J., dissenting, joined by Presiding Justice Fletcher and Justice Sears). Recently, Presiding Justice Nahmias explained in his concurrence in Ringold that

[t]he fact that a defendant who pleads guilty has a right to appeal does not mean, of course, that he wins the appeal. He must be able to show reversible error, and he must do so on the existing record. This is a fundamental principle of appellate practice that applies to all appellants, civil and criminal, whatever proceedings (pleadings, motions, hearings, trials, or combinations thereof) may have led to the appealable judgment.

(Citations omitted; emphasis in original.) 304 Ga. at 885. The conflation of these concepts - whether a defendant has the right to appeal directly from a judgment of conviction entered on a guilty plea and whether the record shows that the defendant would be successful on the merits - appears to be the source of the analytical error in Morrow.

         Whether Morrow was wrongly decided under Georgia law, however, is largely a moot point, because it rests on a foundation that is inconsistent with the holdings in Flores-Ortega and Garza. In Flores-Ortega, the U.S. Supreme Court explained that prejudice must be presumed "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken[.]" 528 U.S at 484 (II) (B) (3) Because prejudice is presumed, a criminal defendant cannot be required to identify the meritorious issue he would have raised (on the existing record or otherwise) in a hypothetical appeal in order to establish that his counsel's deficient performance prejudiced him That presumption holds even if the scope of the defendant's right to an appeal has been narrowed or limited, as under Morrow As the Supreme Court explained in Garza, where the defendant retains a "right to a proceeding, and he was denied that proceeding altogether as a result of counsel's deficient performance[, ]" the rationale of Flores-Ortega still applies 139 S.Ct. at 747 (II) (D) In other words, "when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a particular defendant seems to have had poor prospects" Id. See also Ringold, 304 Ga at 886 (3) (Nahmias, P J, concurring) ("[T]he United States Supreme Court has squarely held that the prejudice resulting from the failure to file a timely appeal by counsel who represented a defendant convicted by guilty plea is not to be determined based on whether the defendant would have prevailed in a timely appeal." (citation omitted)).

         Recognizing that, under controlling Sixth Amendment principles, a defendant is entitled to the effective assistance of counsel to bring an appeal from the judgment of conviction entered on his guilty plea, whatever the supposed scope of the right to appeal, we must also recognize that a foundational aspect of Morrow's holding with respect to out-of-time appeals is eliminated. And without that foundation, there is nothing to sustain the case and its progeny. We therefore overrule Morrow.[6]

         2. The District Attorney, but not the Attorney General, asks this Court to reconsider the procedure we have long allowed by which a defendant may seek an out-of-time appeal not only in a habeas petition but in a motion filed in the trial court. He asks that we abolish the practice of allowing defendants to file a motion for an out-of-time appeal in the trial court. The primary reason the District Attorney gives for making such a significant change is that defendants who seek out-of-time appeals in trial courts may do so long after their convictions, thereby circumventing the limitation provision, OCGA § 9-14-42 (c), and the prejudicial delay provision, OCGA § 9-14-48 (e), imposed on habeas petitioners since 2004.[7] See Ga. Laws 2004, p. 917, § 1. Making such a substantial change to the out-of-time appeal procedure would require us to consider the larger issues of how the out-of-time appeal remedy should be categorized (e.g., as an equitable or an extraordinary remedy) and whether that remedy should be available only in a petition for a writ of habeas corpus. Although we decline to address these larger issues at this time, we can resolve the District Attorney's concern about long-delayed out-of-time appeal motions brought in the trial court. For the reasons that follow, we hold that the State may raise the defense of "prejudicial delay" to out-of-time appeal motions filed in the trial court.

         Fundamentally, a granted out-of-time appeal excuses a criminal defendant's prior failure to timely file a notice of appeal. To perfect the right to bring an appeal, a criminal defendant normally must file a notice of appeal from the judgment of conviction within 30 days after its entry. OCGA § 5-6-38 (a).[8] Compliance with this statutory deadline for filing a notice of appeal is an "absolute requirement" to confer jurisdiction on an appellate court. (Citation, punctuation, and emphasis omitted.) Cody v. State, 277 Ga. 553, 553 (592 S.E.2d 419) (2004). See also Gable v. State, 290 Ga. 81, 85 (2) (b) (720 S.E.2d 170) (2011) ("[C]ourts have no authority to create equitable exceptions to jurisdictional requirements imposed by statute." (citation and punctuation omitted)). However, when a criminal defendant demonstrates that his appeal of right has been frustrated by a violation of constitutional magnitude, the failure to file a timely notice of appeal may be excused and the constitutional violation remedied by the provision of an out-of-time appeal. Gable, 290 Ga. at 85 (2) (b). This out-of-time appeal remedy has existed in Georgia for decades.

         Half a century ago, the United States Supreme Court held that when constitutionally deficient counsel deprives a defendant of an appeal of right, the entry of a new judgment for the purpose of permitting the perfection of an appeal was an appropriate remedy. See Rodriquez v. United States, 395 U.S. 327, 332 (89 S.Ct. 1715, 23 L.Ed.2d 340) (1969) (remanding the case "to the District Court where petitioner should be resentenced so that he may perfect an appeal in the manner prescribed by the applicable rules"). A few years after Rodriquez, the "out-of-time appeal" remedy began to appear in Georgia's habeas corpus jurisprudence.[9] See, e.g., Roberts v. Caldwell, 230 Ga. 223, 224 (196 S.E.2d 444) (1973) (reversing the decision of the habeas court, which denied the inmate's petition for a writ of habeas corpus, and remanding the case with direction to enter an order appointing counsel for the inmate to determine if there were any justifiable grounds for the inmate to appeal, "and if such determination is in the affirmative, then an appeal may be filed and prosecuted with benefit of counsel even at this late date"); McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 S.E.2d 141) (1974) (Upon finding that counsel's ineffective assistance deprived the defendant of his appeal of right, this Court reversed the habeas court "with direction that the appellant be allowed, if he so desires, to file an out of time appeal[.]").

         Shortly thereafter, defendants began filing out-of-time appeal motions in Georgia's trial courts. In Neal v. State, 232 Ga. 96 (205 S.E.2d 284) (1974), we held that a defendant's motion filed in the trial court based upon a claim arising from "the denial of the right of appeal or of the effective assistance of counsel on appeal" was "in the nature of a petition for the writ of habeas corpus[.]" Therefore, it "should have been filed [as a habeas petition] in the superior court wherein the petitioner is being detained, not in the convicting court." Id. (affirming the trial court's order dismissing the defendant's motion). Notwithstanding this precedent, this Court began reviewing trial court rulings on out-out-time appeal motions without any discussion of the propriety of the out-of-time appeal process in the trial court. See, e.g., King v. State, 233 Ga. 630 (212 S.E.2d 807) (1975) (Defendant sought an out-of-time appeal in the trial court, contending that he was unaware he "could appeal in forma pauperis and that the court would allow the appeal to be filed without cost, and counsel would be appointed for the purpose of appeal."); Furgerson v. State, 234 Ga. 594, 595 (2) (216 S.E.2d 845) (1975) ("Defendant later filed his pro se motion for out of time appeal [in the trial court], counsel was appointed, the motion was granted, a motion for new trial and an amendment thereto were filed and overruled, and this appeal followed."). Then, in Rowland v. State, we stated, without any explanation or elaboration, that a defendant may seek an out-of-time appeal in either the habeas court or the trial court:

The "out-of-time appeal" is granted where the deficiency [of counsel] involves not the trial but the denial of the right of appeal. It serves as a remedy for a habeas corpus petitioner who suffered a constitutional deprivation as well as the criminal defendant who has shown good and sufficient reason to a trial court. A criminal defendant who has lost his right to appellate ...

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