Collier v. State

• Decision Date: 21 October 2019
• Docket Number: S19A0658
• Citation: 834 S.E.2d 769,307 Ga. 363
• Court: Georgia Supreme Court
• Parties: COLLIER v. The STATE.

307 Ga. 363

834 S.E.2d 769

COLLIER

v.The STATE.

S19A0658

Supreme Court of Georgia.

Decided: October 21, 2019

Brandon A. Bullard, Office of the Appellate Defender, 104 Marietta Street, NW, Suite 600, Atlanta, Georgia 30303, Veronica M. O'Grady, Georgia Public Defender Council - Appellate Division, 104 Marietta Street, Suite 600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Lewis Ramon Lamb, District Attorney, Southwestern Circuit District Attorney, P.O. Box 1328, Americus, Georgia 31709, for Appellee.

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.E.2d 77 (2019) ; Roe v. Flores-Ortega , 528 U. S. 470, 120 S.Ct. 1029, 145 L.E.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 , 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 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.E.2d 674 (1984)." (Citation omitted.) Ringold , 304 Ga. at 879, 823 S.E.2d 342. 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, 823 S.E.2d 342.

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, 823 S.E.2d 342.

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), 120 S.Ct. 1029. 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), 120 S.Ct. 1029.

Ringold , 304 Ga. at 881, 823 S.E.2d 342.

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), 120 S.Ct. 1029 ("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), 120 S.Ct. 1029 ). 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, 823 S.E.2d 342. 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

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