Bailey v. State
| Court | Supreme Court of Georgia |
| Citation | 828 S.E.2d 300,306 Ga. 364 |
| Decision Date | 20 May 2019 |
| Docket Number | S19A0297 |
| Parties | BAILEY v. The STATE. |
306 Ga. 364
828 S.E.2d 300
BAILEY
v.
The STATE.
S19A0297
Supreme Court of Georgia.
Decided: May 20, 2019
Reconsideration Dismissed July 1, 2019
Phillip Ray Bailey, pro se.
D. Victor Reynolds, District Attorney, John R. Edwards, Benjamin M. First, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.
Blackwell, Justice.
Phillip Bailey appeals from the denial of his motion for leave to pursue an out-of-time appeal. Pursuant to a plea agreement, Bailey pleaded guilty in 2007 to the murder of Jess Sharp and an aggravated assault upon Lamar Sharp, and Bailey was sentenced to imprisonment for life for the murder and a concurrent term of imprisonment for 20 years for the aggravated assault. He did not bring a timely appeal from the judgment of conviction entered upon his plea.
More than eleven years later, Bailey filed a motion for leave to pursue an out-of-time appeal. In his motion, Bailey alleged, among other things, that he was denied the effective assistance of counsel in connection with his plea and that his plea was involuntary. Bailey did not allege, however, that he was denied the effective assistance of counsel in connection with his failure to bring a timely appeal. Nor did he allege that his failure to bring a timely appeal was attributable to any other error of constitutional magnitude. The trial court denied his motion without an evidentiary hearing.
The trial court was right to deny the motion. As we have 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...
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Collier v. State, S19A0658
...by his trial counsel's ineffective assistance in providing advice about or acting upon an appeal.(Citation omitted.) Bailey v. State , 306 Ga. 364, 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......
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Collier v. State, S19A0658
...by his trial counsel’s ineffective assistance in providing advice about or acting upon an appeal.(Citation omitted.) Bailey v. State , 306 Ga. 364, 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......
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Elkins v. State, S19A0331
...104. However, that is not the case here, and we therefore must remand the case for an evidentiary hearing and appropriate 830 S.E.2d 228306 Ga. 364 findings concerning Appellant’s preserved claim of ineffective assistance of motion-for-new-trial counsel.Judgment affirmed in part and vacated......
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Burley v. State, S20A0356
...deprived him of the right to an appeal. See Collier v. State , 307 Ga. 363, 364-365 (1), 834 S.E.2d 769 (2019) (quoting Bailey v. State , 306 Ga. 364, 364-365, 828 S.E.2d 300 (2019) ). In order to obtain an out-of-time appeal, a defendant need not show that he actually would have prevailed ......
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Collier v. State, S19A0658
...by his trial counsel's ineffective assistance in providing advice about or acting upon an appeal.(Citation omitted.) Bailey v. State , 306 Ga. 364, 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......
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Collier v. State, S19A0658
...by his trial counsel’s ineffective assistance in providing advice about or acting upon an appeal.(Citation omitted.) Bailey v. State , 306 Ga. 364, 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......
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Elkins v. State, S19A0331
...104. However, that is not the case here, and we therefore must remand the case for an evidentiary hearing and appropriate 830 S.E.2d 228306 Ga. 364 findings concerning Appellant’s preserved claim of ineffective assistance of motion-for-new-trial counsel.Judgment affirmed in part and vacated......
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Burley v. State, S20A0356
...deprived him of the right to an appeal. See Collier v. State , 307 Ga. 363, 364-365 (1), 834 S.E.2d 769 (2019) (quoting Bailey v. State , 306 Ga. 364, 364-365, 828 S.E.2d 300 (2019) ). In order to obtain an out-of-time appeal, a defendant need not show that he actually would have prevailed ......