Howard v. State, A21A1618

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMercier, Judge.
Citation362 Ga.App. 445,868 S.E.2d 846
Decision Date01 February 2022
Docket NumberA21A1618
Parties HOWARD v. The STATE.

362 Ga.App. 445
868 S.E.2d 846

HOWARD
v.
The STATE.

A21A1618

Court of Appeals of Georgia.

February 1, 2022


868 S.E.2d 847

Steven Eric Phillips, Margaret Elizabeth Bullard, for Appellant.

Fani T. Willis, Atlanta, Mathew Eli Plott, for Appellee.

Mercier, Judge.

362 Ga.App. 445

Albert Howard appeals from a Fulton County Superior Court order vacating the grant of his motion for out-of-time appeal and dismissing his motion for new trial. Because the record does not support the trial court's decision, we reverse that order. We also find that the trial court erred in failing to merge Count 6 of the indictment

362 Ga.App. 446

into Count 7 at sentencing. As to Count 6, therefore, we vacate Howard's conviction and sentence.1

1. Following a March 2010 jury trial, Howard was convicted of aggravated battery, possession of a knife during the commission of a felony, possession of a firearm during the commission of a felony, and three counts of aggravated assault with a deadly weapon.2 Howard did not file a timely motion for new trial or notice of appeal. In May 2018, however, he filed a pro se motion for out-of-time appeal, asserting that his trial counsel failed to perform routine duties necessary to perfect his appeal.

"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." Clark v. State , 310 Ga. 489, 490 (2), 852 S.E.2d 522 (2020) (citation and punctuation omitted). Pursuant to a consent agreement reached by the State and Howard's newly-appointed appellate counsel, the trial court granted Howard an out-of-time appeal on October 5, 2018. The trial court recited the parties’ agreement that trial counsel "failed to file a motion for new trial due to no fault of [Howard]" and that the grant of an out-of-time appeal was "appropriate under these circumstances." Ultimately, the court concluded: "[Howard] wanted to appeal his case and bore no responsibility for

868 S.E.2d 848

the lack of a timely-filed notice of appeal or motion for new trial."

Howard filed a motion for new trial, and his appellate counsel worked on obtaining the trial transcript, which was finally completed by the court reporter in December 2019. But on June 26, 2020, before the trial court addressed the motion for new trial, the State moved to vacate the October 2018 order granting Howard an out-of-time appeal. Asserting that Howard had absconded during the trial in 2010, the State argued that he had waived his right to appeal by remaining a fugitive during the original window for filing a motion for new trial and notice of appeal. On March 22, 2021, the trial court vacated the order granting Howard an out-of-time appeal and dismissed his motion for new trial. This appeal followed.

As noted by the State, a defendant "waives his right to appeal by remaining a fugitive during the period when he was authorized by

362 Ga.App. 447

statute to file a motion for a new trial or a notice of appeal." Sanders v. State , 242 Ga. App. 743, 744 (1), 531 S.E.2d 170 (2000). In such circumstances, the defendant is responsible for the failure to file a timely appeal, and he cannot claim that trial counsel was deficient in not pursuing the appeal in his absence. See id. Moreover, the defendant is not entitled to an out-of-time appeal because "[a]n out-of-time appeal is not authorized if the delay was attributable to the [defendant's] conduct." See id. (citation and punctuation omitted).

The record shows that Howard absconded prior to closing arguments on March 11, 2010, and the trial concluded without him. He was convicted on March 15, 2010, after the trial court sentenced him in absentia. Howard re-entered the Fulton County Jail on May 25, 2010. Given Howard's fugitive status, he may not have been entitled to an out-of-time appeal. See Sanders , supra. Nevertheless, the State consented to Howard's out-of-time appeal request, and the trial court entered the order granting him an out-of-time appeal on October 5, 2018.

Generally, a trial court lacks jurisdiction to revise, correct, revoke, modify or vacate any judgment outside the term of court in which the judgment was entered. See Whipkey v. State , 352 Ga. App. 746, 748 (1), 835 S.E.2d 740 (2019) ; Chishti v. State , 288 Ga. App. 230, 653 S.E.2d 830 (2007). The terms for the Fulton County Superior Court commence on the first Monday in January, March, May, July, September, and November. See OCGA § 15-6-3 (3). Ten new terms of court had commenced when the State moved in June 2020 to vacate the order granting Howard an out-of-time appeal. An additional five new terms began before the trial court vacated its order.

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1 practice notes
  • Priddy v. State, A21A1308
    • United States
    • United States Court of Appeals (Georgia)
    • February 1, 2022
    ...was exposed to allegedly prejudicial remarks made by a panel member. Priddy thus waived any error by failing to object at trial. See 362 Ga.App. 445 Primas v. State , 231 Ga. App. 861, 862 (2), 501 S.E.2d 28 (1998) ("To raise an issue as to error in the conducting of the voir dire, objectio......
1 cases
  • Priddy v. State, A21A1308
    • United States
    • United States Court of Appeals (Georgia)
    • February 1, 2022
    ...was exposed to allegedly prejudicial remarks made by a panel member. Priddy thus waived any error by failing to object at trial. See 362 Ga.App. 445 Primas v. State , 231 Ga. App. 861, 862 (2), 501 S.E.2d 28 (1998) ("To raise an issue as to error in the conducting of the voir dire, objectio......

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