Boone v. State
Decision Date | 21 December 2020 |
Docket Number | S21A0171 |
Parties | BOONE v. The STATE. |
Court | Georgia Supreme Court |
Odeirrek D. Boone, pro se.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Richard B. Caplan, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
On May 10, 2012, Odeirrick Boone entered a non-negotiated guilty plea to malice murder and various other offenses in connection with the robbery of a convenience store and the stabbing death of the store owner, Balk Sung. On January 31, 2020, Boone filed a pro se motion for leave to file an out-of-time appeal, arguing that his trial counsel was ineffective for having failed to inform him of his right to pursue an appeal of his convictions. The trial court denied Boone's motion summarily and without holding a hearing, which prompted the current appeal. For the reasons that follow, and as the State properly concedes, the trial court's order must be vacated and this case remanded to the trial court to hold a hearing to determine whether Boone is entitled to an out-of-time appeal due to the ineffective assistance of his plea counsel.
(Punctuation omitted.) Id. at 364-365 (1), 834 S.E.2d 769.
However, with regard to the deficient performance prong of the Strickland test, "we cannot determine whether [Boone's] counsel performed deficiently in failing to file a notice of appeal because the trial court failed to hold an evidentiary hearing on the issue." Blackwell v. State , 306 Ga. 577, 578, 832 S.E.2d 352 (2019). Accordingly, we must vacate the trial court's order denying Boone's motion for an out-of-time appeal and remand this case to the trial court for a determination of whether counsel performed deficiently in failing to inform Boone of his right to a direct appeal from his guilty plea. See Collier , supra, 307 Ga. at 376 (3), 834 S.E.2d 769.
With respect to the prejudice prong of the Strickland test, we emphasize that to be granted an out-of-time appeal Boone need not prove that he would have prevailed in a timely appeal, but only that "there is a reasonable probability that, but for counsel's deficient failure to consult with him about an...
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Murray v. State
...104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).5 (Punctuation omitted.) Collier , 307 Ga. at 364-365 (1), 834 S.E.2d 769.6 Boone. v. State , ––– Ga. ––––, 853 S.E.2d 118 (2010), quoting Blackwell v. State , 306 Ga. 577, 578, 832 S.E.2d 352 (2019), and citing Collier , 307 Ga. at 376 (3), 834 S.E.2d ......
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Boone v. State
...a hearing on whether Boone is entitled to an out-of-time appeal due to ineffective assistance of plea counsel. See Boone v. State , 310 Ga. 651, 853 S.E.2d 118 (2020).On remand, plea counsel testified that she was "fairly sure" she did not advise Boone about his right to appeal and it was n......
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