P. J., COOMER and MARKLE, JJ.
his negotiated guilty plea to trafficking in methamphetamine,
Cristobal Sosa appeals from the trial court's denial of
his motions (1) to withdraw his guilty plea, (2) for an
out-of-time appeal, and (3) seeking appointment of counsel.
On appeal, he asserts that the trial court erred in denying
his motions because (1) his plea was not knowing and
voluntary; (2) he was not advised of his right to appeal or
the immigration consequences of his plea; and (3) he received
ineffective assistance of counsel at the plea stage. For the
reasons that follow, we vacate the trial court's orders
and remand the case for further proceedings.
review a trial court's denial of motions to withdraw a
plea, to file an out-of-time appeal, and for appointment of
counsel for abuse of discretion. Cooper v. State,
348 Ga.App. 649, 650 (824 S.E.2d 571) (2019), overruled on
other grounds by Collier v. State, ___Ga.___(__
S.E.2d __) (Case No. S19A0658, decided Oct. 21, 2019)
(out-of-time appeal); Schlau v. State, 261 Ga.App.
303, 304 (1) (582 S.E.2d 243) (2003) (withdraw plea);
Barnes v. State, 293 Ga. 365, 366 (744 S.E.2d 795)
(2013) (appoint counsel).
record shows that Sosa was charged with trafficking
methamphetamine and possession with intent to distribute
methamphetamine. He subsequently agreed to plead guilty to
the trafficking count as part of a negotiated plea in which
he would receive first offender status and the State would
nolle prosse the possession count. Sosa signed a waiver form
in which he confirmed that he understood the charges against
him as well as the rights he was giving up by pleading
guilty; that he faced possible immigration consequences due
to his plea; and that he had spoken with counsel about the
charges and was satisfied with counsel's advice and
representation. Counsel signed the form as well, attesting
that he had spoken with Sosa regarding the plea and the
rights that Sosa would be waiving by pleading guilty.
plea hearing in February 2018, the trial court first
determined that Sosa's real surname was Lara, but that
Sosa waived the misnomer in the indictment. The trial court
then confirmed that Sosa understood the charges against him,
had spoken with his attorney about the charges and the rights
he would waive by pleading guilty, and that he was satisfied
with counsel's representation. The trial court further
inquired whether Sosa understood the potential range of
punishment and the consequences he faced by pleading guilty.
Sosa confirmed that he understood. The trial court reminded
Sosa that he had the right to plead not guilty. When Sosa
indicated that he was a resident but not a citizen of the
United States, the trial court ensured that he understood his
plea could have an adverse impact on his right to remain in
the United States. The State then presented the factual basis
for the charges. After confirming that no one had coerced
Sosa to enter his plea, the trial court accepted it.
November 2018, Sosa moved to withdraw his plea and for an
out-of-time appeal. In these two motions, he alleged that (1)
his guilty plea was not knowing and voluntary, and (2) he
received ineffective assistance of counsel due to (a)
counsel's failure to advise him of his rights and the
consequences of his plea, including any potential immigration
consequences, or his right to appeal; and (b) counsel's
waiver of any challenge to the misnomer in the indictment. He
also requested appointment of counsel. The trial court denied
both motions and declined to appoint counsel. This appeal
argues that the trial court erred in denying his motion for
an out-of-time appeal because he received ineffective
assistance of counsel, and the trial court should have
conducted a hearing to address counsel's performance.
Specifically, he asserts that (1) counsel failed to inform
him of (a) his right to appeal, (b) the nature and
consequences of his plea, (c) the facts the State had to
prove to convict him of trafficking, (d) the rights he would
waive by pleading guilty, and (e) the immigration
consequences of his plea; and (2) counsel improperly waived
any challenge to the misnomer in the indictment. In light of
the recent decision in Collier v. State, ___Ga.__
(1) (___ S.E.2d ___) (Case No. S19A0658, decided Oct. 21,
2019), we remand this claim to the trial court for further
Collier, ___Ga.___ (1) (Case No. S19A0658, slip op.
at 8 (1)), 2019 WL 5301808 (decided Oct. 21, 2019), our
Supreme Court overruled a long line of cases that held that
(1) a criminal defendant had a limited right to a direct
appeal from a guilty plea, and (2) a defendant seeking an
out-of-time appeal had to show on the existing record that
the appeal would have had merit. Collier, slip op.
at 8-9 (1). Recognizing that both holdings were inconsistent
with federal constitutional law and U.S. Supreme Court
precedent, our Supreme Court clarified in Collier
that a defendant seeking an out-of-time appeal, from either a
conviction at trial or following a guilty plea, has to allege
and show that counsel's ineffectiveness deprived him or
her of the right to an appeal. Id. at 4-7 (1).
Moreover, when such a claim is raised in a motion for an
out-of-time appeal, the trial court is required to conduct a
factual inquiry into the defendant's allegation that
counsel's performance deprived him or her of the right to
appeal. Id. at 6 (1), n.1, 29 (3).
[b]ecause the trial court denied [the defendant's] motion
for an out-of-time appeal without holding an evidentiary
hearing, we cannot determine from the appellate record
whether [the defendant's] failure to timely pursue an
appeal was actually the result of his counsel's deficient
performance. Moreover, we recognize that, given the clear,
though incorrect, mandate of the case law overruled by this
opinion, [the defendant] has not had a full and fair
opportunity to pursue his motion for an out-of-time appeal
before the trial court, the State has not had a full and fair
opportunity to raise defenses, and the trial court has not
had the benefit of this opinion to guide its consideration of
the parties' evidence and argument.
Collier, __ Ga. at__ (3).
case, Sosa filed a motion for an out-of-time appeal, arguing
that his counsel failed to inform him of the right to appeal.
The trial court rejected the claim without any inquiry.
Accordingly, the appropriate remedy here is to vacate the
trial court's order and remand the case for further
proceedings consistent with Collier.
also challenges the denial of his motions to withdraw his
guilty plea and for appointment of counsel. In light of our
conclusion in Division 1, we also vacate these ...