Cook v. State, S21A1270

CourtSupreme Court of Georgia
Writing for the CourtWARREN, JUSTICE
Docket NumberS21A1270
PartiesCOOK v. THE STATE.
Decision Date15 March 2022

COOK
v.

THE STATE.

No. S21A1270

Supreme Court of Georgia

March 15, 2022


WARREN, JUSTICE

When a convicted criminal defendant is unconstitutionally deprived of an appeal of right, which typically occurs because her counsel provided ineffective assistance in failing to file a timely appeal, she is entitled to an untimely or "out-of-time" appeal. In this case, we examine the difficult question of whether this Court should overrule our precedent allowing a criminal defendant who alleges that she was unconstitutionally deprived of her appeal as of right to file a motion for out-of-time appeal in the trial court, as opposed to seeking a writ of habeas corpus as an exclusive remedy. After explaining the underpinnings of our precedent and engaging in an exhaustive stare decisis analysis, we conclude that the trial court out-of-time appeal procedure is not a legally cognizable vehicle for a

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convicted defendant to seek relief for alleged constitutional violations.

In the Habeas Corpus Act of 1967, now codified as OCGA § 9-14-40 et seq., the General Assembly created a post-conviction procedure for defendants to raise that-and any other- constitutional claim. Defendants in Georgia began doing so, and in 1974 this Court held in Neal v. State, 232 Ga. 96 (205 S.E.2d 284) (1974), that a defendant could not seek an out-of-time appeal from his conviction by motion in the trial court, explaining that he must file a petition for a writ of habeas corpus to seek relief for the "denial of the right of appeal or of the effective assistance of counsel on appeal" and affirming the trial court's order dismissing the defendant's motion. Id. at 96.

Nevertheless, the following year, without mention of Neal or the Habeas Corpus Act, this Court began to review appeals of trial court orders denying motions for out-of-time appeals on the merits and appeals following orders by trial courts granting out-of-time

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appeals. See King v. State, 233 Ga. 630, 630-631 (212 S.E.2d 807) (1975); Furgerson v. State, 234 Ga. 594, 595-596 (216 S.E.2d 845) (1975). Those cases did not constitute precedents on the proper way to seek an out-of-time appeal, but two decades later, in Rowland v. State, 264 Ga. 872 (452 S.E.2d 756) (1995), the Court for the first time held-without citing any applicable legal authority and without acknowledging or overruling the contrary holding in Neal-that a convicted defendant could seek an out-of-time appeal either in the trial court or in habeas corpus. See id. at 875. Trial courts thus continued to entertain motions for out-of-time appeal, and appellate courts continued to decide appeals following the rulings on such motions for many more years.

This Court did not examine how the trial court out-of-time appeal procedure had been created and evolved; the inconsistencies that had developed between that procedure and other areas of established Georgia law; or how the procedure had become an unwitting breeding ground for legal errors made by both appellate and trial courts until we decided

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Collier v. State, 307 Ga. 363 (834 S.E.2d 769) (2019), in 2019. Collier raised the profile of the trial court out-of-time appeal process, and given that the only way rules have been established for this judicially created procedure is by judges making them on a case-by-case basis, we have since seen additional cases that have called upon this Court to create the rules and parameters of the trial court out-of-time appeal procedure.

In Collier, and in a case that soon followed, Schoicket v. State, 312 Ga 825 (865 S.E.2d 170) (2021), this Court determined that our precedent endorsing the trial court out-of-time appeal procedure as an alternative to habeas corpus had no valid legal foundation See Collier, 307 Ga 371-373, 376; Id. at 379-382 (Peterson, J, concurring specially); Schoicket, 312 Ga. at 825. The question that follows is whether to maintain that precedent as a matter of stare decisis. We asked the parties in this case, as well as amicus curiae for major participants in the criminal justice system, to address that question. Based on their input and our extensive consideration of the issue, we conclude that stare decisis considerations do not weigh against overruling our precedent that created the trial court out-of-time

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appeal procedure.

This Court has consistently held that the most important stare decisis factor is the soundness of the reasoning of the precedent at issue, and everyone involved in this case agrees that the reasoning supporting our precedent allowing motions for out-of-time appeal in trial courts-to the extent there has been any reasoning at all-is wholly unsound. There also is agreement that the precedent is not ancient and that it does not implicate traditional reliance interests.

With respect to the fourth stare decisis factor that this Court typically considers-workability-we conclude that our precedent creating the trial court out-of-time appeal procedure has a fundamental and insurmountable workability problem, because it will perpetually require this Court to fill in the details of the procedure we created. Judicial administration of habeas corpus, which everyone agrees is an appropriate procedure for seeking an out-of-time appeal when a convicted criminal defendant is unconstitutionally deprived of an appeal of right, does not require judges to make up the rules that regulate that process because the

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General Assembly has established those rules by statute. But as Collier and Schoicket demonstrate, when it comes to the trial court out-of-time appeal procedural vehicle this Court invented, we are called upon to make up the rules that govern that procedure. And each time we do, we are required to step out of our proper judicial role and assume the role of law-makers-which is the work of the General Assembly.

The dissent has no real answer to this problem. It also undervalues the unsoundness of our precedent and overstates the ways in which the procedure we created may work better than the habeas procedure that is legally proper. In the end, the dissent seeks to overcome our customary stare decisis analysis with a focus on the "entrenchment" of our precedent-a concept we have considered before in stare decisis analyses, but never to outweigh all other stare decisis factors and perpetuate an unworkable and wholly unsound precedent, as the dissent proposes here.

For these reasons, which are explained more fully below, we conclude that principles of stare decisis do not require us to maintain

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our unsound precedent creating or endorsing the trial court out-of-time appeal procedure, and we therefore overrule Rowland and its handful of progeny. We also disapprove King, Furgerson, and other decisions to the extent that they allowed out-of-time appeal claims to be litigated in trial courts without addressing the propriety of that procedure. Applying our holding to this case, we vacate the trial court's order denying Cadedra Lynn Cook's motion for an out-of-time appeal, and we remand the case to the trial court with direction that the motion be dismissed.

1. Procedural Posture of Cook's Appeal

In November 2013, Cook entered a negotiated plea of guilty to charges of felony murder and armed robbery, based on which the trial court entered a judgment of conviction and sentenced her to life in prison with the possibility of parole for felony murder and a concurrent 20-year term in prison for armed robbery.[1] She did not

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file a timely appeal, but more than six years later, she filed a motion for out-of-time appeal in the trial court, contending that she was deprived of her right to appeal because of her plea counsel's ineffective assistance.[2] After a hearing, the trial court denied Cook's motion for out-of-time appeal on the merits, and she timely appealed that decision. Cook and the State filed appellate briefs making arguments related to the merits of Cook's motion. But in light of this Court's recent examinations of the propriety of motions for out-of-time appeals in trial courts and related issues in Collier, Kelly v. State, 311 Ga. 827 (860 S.E.2d 740) (2021), and Schoicket, we requested and received supplemental briefing on the following two questions[3]:

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Should this Court reconsider whether a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel's alleged ineffective assistance under Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), be permitted to seek a remedy for that alleged constitutional violation by filing a motion for out-of-time appeal in the trial court, as opposed to filing, as her exclusive remedy, a petition for writ of habeas corpus?

How do considerations of stare decisis apply in this analysis?

2. Legal Background

(a) The Judicial Creation and Propagation of the Motion for Out-of-Time Appeal in Georgia Trial Courts.

In 1965, the United States Supreme Court granted certiorari to consider "whether the Fourteenth Amendment [to the United States Constitution] requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees." Case v. Nebraska, 381 U.S. 336, 337 (85 S.Ct. 1486, 14 L.Ed.2d 422) (1965). But

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because the Nebraska legislature enacted, during the pendency of that case, a statutory post-conviction procedure that "provide[d] for a hearing of petitions . . . alleging denial of federal constitutional rights," the Supreme Court did not address the merits of the question presented in Case and instead vacated the judgment below. Id. However, in the wake of two concurring opinions in Case that expressed approval of states providing statutory post-conviction procedures and hope that such procedures would be broadly adopted in other states, see id. at 337-340 (Clark, J., concurring), 340-347 (Brennan, J...

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