Dougherty v. State
| Decision Date | 02 November 2022 |
| Docket Number | Case No. S22A0643 |
| Citation | 315 Ga. 188,880 S.E.2d 523 |
| Parties | Robert Kyle DOUGHERTY v. The STATE. |
| Court | Georgia Supreme Court |
Doug Patrick Smith, Towaliga Circuit Public Defender, 135 L. Cary Bittick Drive, Forsyth, Georgia 31029, for Appellant.
Jonathan Lang Adams, District Attorney, Cynthia Trimboli Adams, A.D.A., Towaliga Circuit District Attorney's Office, 326 Thomaston Street, Barnesville, Georgia 30204, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Alex Martin Bernick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Dorothy Vinson Hull, A.D.A., Towaliga Circuit District Attorney's Office, 137 L. Cary Bittick Drive, Forsyth, Georgia 31028, for Appellee.
Appellant was convicted of felony murder, conspiracy to commit armed robbery, abandonment of a dead body, concealing the death of another, and possession of a firearm during the commission of a felony. On March 27, 2014, a disposition was entered that failed to resolve Count 4 of the indictment, which charged Appellant with armed robbery.
On March 31, 2014, Appellant filed pro se a motion for a new trial. In September 2014, Appellant's new post-conviction counsel filed another motion for a new trial. After the trial court in January 2019 entered an order purporting to deny the motion, Appellant, through counsel, filed a notice of appeal on February 22, 2019. On July 1, 2019, this Court dismissed Appellant's appeal, Case No. S19A1281, as untimely. Specifically, Appellant's notice of appeal was not filed within 30 days after March 27, 2014, the date that "the [trial] court entered a final disposition on [A]ppellant's convictions for felony murder and other offenses[,]" according to our order; Appellant filed his pro se motion for a new trial while he was "still represented by trial counsel," making that motion "a legal nullity" under White v. State , 302 Ga. 315, 806 S.E.2d 489 (2017) ; and the motion for a new trial filed by post-conviction counsel "was untimely and as such did not toll the time for filing an appeal." See OCGA § 5-6-38 (a) (). Remittitur issued on August 7, 2019.
On February 20, 2020, the trial court entered a consent order granting Appellant an out-of-time appeal, and Appellant through counsel filed an "amended" motion for a new trial on March 2, 2020. The trial court entered an order purporting to deny that motion on November 18, 2020. Appellant, through counsel, filed a timely notice of appeal. On December 14, 2021, this Court dismissed Appellant's second appeal, Case No. S22A0300, "because there [was] nothing in the record showing that Count 4 of the indictment was officially resolved, either by entry of an order of nolle prosequi or otherwise," such that "Appellant's case remain[ed] pending in the trial court[,]" under Seals v. State , 311 Ga. 739, 860 S.E.2d 419 (2021). In that posture, we held, Appellant could only "obtain review of his convictions" by "follow[ing] the procedures for interlocutory appeal[.]" See OCGA § 5-6-34 (b).
On January 18, 2022, the trial court entered an order of nolle prosequi as to Count 4. Following entry of the nolle prosequi order, Appellant filed a notice of appeal on February 1, 2022, bringing the case again before this Court. The record shows that we have issued two irreconcilable orders in Appellant's case. On the one hand, we dismissed Appellant's first appeal in July 2019, premised in part on final judgment having been entered on Appellant's convictions on March 27, 2014. On the other hand, in dismissing Appellant's second appeal in December 2021 for failure to follow interlocutory appeal procedures, we explicitly held that a final judgment had not yet been entered on his convictions. Under our December 2021 order, final judgment was not entered on Appellant's convictions until January 18, 2022.
"[A]ny ruling" by this Court "in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court [.]" OCGA § 9-11-60 (h) (emphasis supplied). "Georgia's appellate courts are required to adhere to the law of the case rule in all matters which they consider." Hicks v. McGee , 289 Ga. 573, 578 (2), 713 S.E.2d 841 (2011). See also Hollmon v. State , 305 Ga. 90, 90-91 (1), 823 S.E.2d 771 (2019) (); Roulain v. Martin , 266 Ga. 353, 354 (1), 466 S.E.2d 837 (1996) (). After remittitur issued on August 7, 2019, in Case No. S19A1281, we have ever since been required to adhere to our ruling in the July 2019 dismissal order regarding when the judgment on Appellant's convictions became final. When the case returned to us on November 3, 2021, with the docketing of Case No. S22A0300, the law of the case doctrine prevented us from issuing a ruling that was inconsistent with that ruling, as we did in the December 2021 order that returned the case to the trial court. Thus, despite our holding in Seals , the trial court's entry of an order of nolle prosequi as to Count 4 was not required to bring finality to the March 2014 sentence in Appellant's case, and the January 18, 2022 nolle prosequi order could not give Appellant a new opportunity to litigate his motion for a new trial.
As to the proceedings on Appellant's granted out-of-time appeal, which resulted in the November 18, 2020 order denying his motion for a new trial, in Cook v. State , 313 Ga. 471, 870 S.E.2d 758 (2022), this Court eliminated the out-of-time-appeal procedure in trial courts, a procedure that we had created nearly fifty years earlier. In Cook , we held that a trial court is without jurisdiction to decide a motion for out-of-time appeal on the merits "because there was and is no legal authority[,]" that is, no constitutional or statutory authority, "for motions for out-of-time appeal in trial courts." Id. at 506 (5), 870 S.E.2d 758. Cook also concluded that this holding is to be applied to "all cases that are currently on direct review or otherwise not yet final[,]" id., and directed that "pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits ... should be vacated if direct review of the case remains pending or if the case is otherwise not final." Id. at 505 (4), 870 S.E.2d 758.
Accordingly, the trial court's February 20, 2020 order granting Appellant's motion for out-of-time appeal is vacated. Without the granted out-of-time appeal, the trial court lacked jurisdiction to decide Appellant's March 2, 2020 motion for a new trial; therefore, this appeal from the trial court's November 18, 2020 order denying that motion is dismissed. In addition, this case is remanded for entry of an order vacating the November 18, 2020 order and dismissing the March 2, 2020 motion. Finally, the trial court is directed to vacate any other rulings on filings subsequent to the granted out-of-time appeal, which it similarly lacked jurisdiction to decide under Cook .
All the Justices concur.
Although I reluctantly agree with this Court's decision, under the law of the case doctrine, to vacate the trial court's order granting Robert Kyle Dougherty an out-of-time appeal, to dismiss this appeal from the order denying Dougherty's motion for a new trial on the merits, and to remand the case to the trial court, I write separately to express my discomfort with where our precedent has led us: to denying a hearing on the merits based on the simple fact that a criminal defense attorney required his client to sign a motion for a new trial, rather than signing it himself without ever formally withdrawing as counsel of record.
OCGA § 5-6-30 provides:
It is the intention of this article [i.e., the Appellate Practice Act] to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the APA].
(Emphasis added.) The APA provides more reasons an appeal may not be dismissed than it provides grounds for dismissal. See, e.g., OCGA § 5-6-48. Yet eight years of post-conviction litigation in this case have culminated in a procedural disposition, not a merits-based decision, through no fault on Dougherty's part.
Here are the facts in rather more detail than the above order of the Court. After Dougherty participated with Stephen Lober in a 2012 attempted armed robbery that resulted in the fatal shooting of Trevorius Thomas, a Monroe County grand jury indicted Dougherty on nine counts, including armed robbery (Count 4). In 2013, Lober entered a guilty plea. At the beginning of Dougherty's trial in March 2014, the prosecutor told the court, Dougherty's counsel responded, "we're okay...
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Johnson v. State
......471, 506 (5) (870 S.E.2d 758) (2022). Although Cook did not eliminate the out-of-time appeal as a. remedy in habeas proceedings, it significantly narrowed the. opportunities for defendants to revive appeal rights lost as. a result of ineffective counsel. See Dougherty v. State, 315 Ga. 188, 196 n.6 (880 S.E.2d 523) (2022). (Ellington, J., concurring). . . In sum,. after Cook , the potential that the nullity rule will. apply in a way that prevents defendants from ever . exercising their rights of ......