Boone v. State
| Decision Date | 19 January 2022 |
| Docket Number | S21A1065 |
| Citation | 313 Ga. 78,868 S.E.2d 202 |
| Parties | BOONE v. The STATE. |
| Court | Georgia Supreme Court |
Odeirrek D. Boone, GDC# 1297265, Wheeler Correctional Facility, P.O. Box 466, Alamo, Georgia 30411, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Richard Benjamin Caplan, Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, for Appellee.
Odeirrek Boone pleaded guilty to malice murder and other offenses and appeals from the denial of his motion for an out-of-time appeal. Boone, proceeding pro se, briefly references his plea counsel's failure to consult with him regarding his right to appeal, but the bulk of his argument is that plea counsel failed to advise him of his right to withdraw his guilty plea prior to sentencing and, had he been so advised, he would have withdrawn his guilty plea. And in attacking on appeal the court's denial of the motion for out-of-time appeal, Boone now seeks only an opportunity to move to withdraw his guilty plea. But a belated motion to withdraw his guilty plea is not a remedy to which Boone would be entitled even if the court below had granted his motion for out-of-time appeal. We therefore affirm.
Boone was charged with malice murder, three counts of felony murder, armed robbery, two counts of aggravated assault, theft by taking, and possession of a knife during the commission of a felony in connection with the robbery of a convenience store and the stabbing death of the store owner, Baik Sung. Boone entered into a non-negotiated plea agreement after being advised of the trial rights that he was giving up by pleading guilty, the inability to withdraw his plea once his sentence was announced, and the availability of his post-conviction remedies, including his limited right to appeal his conviction. The issue of Boone's mental health was raised at sentencing for purposes of mitigation, but plea counsel confirmed that Boone had been evaluated and deemed mentally competent. Plea counsel also noted at sentencing that Boone never expressed a desire to go to trial and wanted to accept responsibility for his actions. The trial court entered judgment in June 2012, sentencing Boone to life in prison with the possibility of parole for malice murder, a consecutive ten-year sentence for theft by taking, and a consecutive five-year sentence for possession of a knife during the commission of a felony.1
Almost three years later, in March 2015, Boone filed a pro se motion for leave to file an out-of-time appeal, and filed a brief in support in January 2020, arguing that plea counsel was ineffective by failing to inform him of his rights to withdraw his guilty plea prior to sentencing and to appeal his convictions. The trial court denied Boone's motion without holding a hearing, and we vacated and remanded for the trial court to conduct 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 not her ordinary practice to provide such advice when defendants wanted to plead guilty. Plea counsel stated that Boone never asked her to file an appeal and that she would have done so if asked. When the State referenced the...
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