Davis v. State
| Decision Date | 07 December 2020 |
| Docket Number | S20A1318 |
| Citation | 310 Ga. 547,852 S.E.2d 517 |
| Court | Georgia Supreme Court |
| Parties | DAVIS v. The STATE. |
Detrik L. Davis, pro se.
William P. Doupé, District Attorney, Steven T. Normandia, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Detrik Lamon Davis appeals pro se from an order of the Superior Court of Lincoln County denying his motion for an out-of-time appeal. The superior court found that Davis failed to carry his burden of showing that the lack of an appeal from the judgment of conviction entered following his guilty plea was the result of counsel's ineffective assistance. Davis contends that he was "forced to improperly proceed pro se on his first appeal from his conviction based on a guilty plea." He also argues that he was entitled to appointed counsel to assist him with his motion for an out-of-time appeal. For the following reasons, we find no merit to these claims of error and affirm.
The record shows that, with the assistance of counsel and pursuant to a plea agreement, Davis entered a guilty plea in October 1997 to felony murder, aggravated assault, and attempted feticide in connection with the death of Quatasha Cheeley.1 The court sentenced Davis to life imprisonment for felony murder, plus ten years concurrent imprisonment for attempted feticide.2 No appeal was taken. In November 2019, Davis filed a pro se motion for an out-of-time appeal in the court of conviction. After a hearing at which Davis and defense counsel testified, the superior court denied the motion on February 19, 2020.3
1. Davis contends he was entitled to appointed counsel to assist him in preparing and filing his motion for an out-of-time appeal. This argument is without merit. See Pierce v. State , 289 Ga. 893, 894 (1), 717 S.E.2d 202 (2011) .
2. Davis also contends that the trial court erred in denying his motion for an out-of-time appeal on ineffective assistance of counsel grounds. For the following reasons, we find no abuse of discretion.4 "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." Collier v. State , 307 Ga. 363, 364 (1), 834 S.E.2d 769 (2019).
Where a defendant alleges that he was deprived of an appeal of right that he otherwise would have pursued by his counsel's constitutionally deficient performance in providing advice about or acting upon such appeal, that alleged violation "is reviewed under the familiar standard of Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 LE2d [L.Ed.2d] 674 (1984)." Collier , 307 Ga. at 365 (1) (citation and punctuation omitted). 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. 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. Id. (citations and punctuation omitted).
Moore v. State , 308 Ga. 312, 313-314 (2), 840 S.E.2d 353 (2020) (punctuation omitted).
The transcript of the hearing on Davis's motion for an out-of-time appeal shows the following. Davis testified that he filed the motion when a fellow inmate advised him to seek an out-of-time appeal. The inmate prepared the motion on Davis's behalf. Davis testified that he did not seek an appeal after he entered his guilty plea because he was "ready to do" the sentence negotiated by his trial counsel. Davis was unable to articulate specifically what his trial counsel should have done for him; rather, he complained that he should have been paroled after serving 14 years. He also said that he would not have pleaded guilty had he been more informed. Of what counsel should have informed him, Davis could not say.
A few days after Davis's arrest, a public defender was appointed to represent him. Defense counsel testified that he met with Davis regularly, discussed discovery with him, and prepared the case thoroughly for trial. He obtained funds for a private investigator. Given Davis's youth and suspected mental health problems, counsel investigated theories of defense based on diminished capacity or culpability. He sought and obtained two psychological evaluations of Davis. Davis, however, was found competent to stand trial, and the psychiatric evaluations, in counsel's estimation, were not helpful to the defense.
As the trial date approached, Davis wrote counsel and informed him that he wanted to plead guilty. In the letter, Davis complained that the psychiatrists did not understand "how he was feeling when he did what he did," that he believed that "all arrows point to guilty," and that he did not want to risk a sentence of life without parole.5 Davis wrote that, while his decision may seem "radical," he believed it was the only alternative that he had left. Counsel testified that he thought Davis was being overly emotional; nevertheless, he began informal plea discussions with the prosecutor handling the case while he continued to prepare for trial. On the eve of trial, the prosecutor wrote counsel, offering Davis a one-time-only plea offer of life imprisonment for felony murder and ten years concurrent jail time for attempted feticide. Counsel explained the offer to Davis, but he also told Davis that he was ready to go to trial if Davis rejected the offer. Davis accepted the offer and agreed to plead guilty.
Counsel discussed with Davis the rights he was waiving by entering the plea and had him read and sign a plea form. He also informed Davis that he would be eligible for parole in 14 years, but that parole was up to the Parole Board and there was no guarantee he would be granted parole.6 Counsel testified that Davis never wavered in his desire to plead guilty. He also explained to Davis that he had a right to appeal a conviction following trial, but he did not discuss the right to an appeal from a judgment of conviction entered on a guilty plea because Davis had expressed no interest in an appeal. Rather, Davis appeared eager to plead guilty and to spare his family the trauma of a trial. After counsel testified, Davis told him, on the record:
I would actually like to say thank you again, man, I appreciate everything you did. I just read that letter and I remember just — you actually begged me to fight and go to trial. I just didn't understand, you know what I'm saying? It's like I ain't here to say you didn't do your job, man, you did great.
The record shows that, although Davis asserted no fault with counsel's performance, the superior court found that counsel failed to consult with Davis about his right to appeal following the entry of a guilty plea. Nevertheless, the court also concluded that counsel's failure to consult did not constitute a breach of his professional duty because that failure was not objectively unreasonable performance under the totality of the circumstances.
[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. See [ Strickland ,] 466 U.S. at 690 (focusing on the totality of the circumstances). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads...
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...out-of-time appeal is a proceeding as to which a defendant is not entitled to the appointment of counsel. See, e.g., Davis v. State , 310 Ga. 547, 548, 852 S.E.2d 517 (2020) (" ‘[B]ecause a motion for an out-of-time appeal cannot be construed as part of a criminal defendant's first appeal o......
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Cook v. State
...appeal."); Harvey, 312 Ga. at 265 ("Around 15 years later, Harvey filed a motion for an out-of-time appeal through new counsel."); Davis, 310 Ga. at 548 filed a pro se motion for an out-of-time appeal" over 20 years after his conviction). These cases not only ignore the statutory time limit......
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...the familiar standard of Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).’ " Davis v. State , 310 Ga. 547, 549, 852 S.E.2d 517, 519 (2020) (quoting Moore v. State, 308 Ga. 312, 313, 840 S.E.2d 353 (2020) (punctuation omitted)).With respect to the first compon......
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