Jones v. State

• Decision Date: 27 February 2020
• Docket Number: A20A0309,A20A0310
• Citation: 840 S.E.2d 117,354 Ga.App. 29
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 29

840 S.E.2d 117

JONES

v.The STATE.

A20A0309

A20A0310

Court of Appeals of Georgia.

February 27, 2020

Quincy Jones, for Appellant.

Elizabeth A. Baker, John Evans Fowler, Tasha Monique Mosley, Charles Anthony Brooks, for Appellee.

Barnes, Presiding Judge.

Several years after the trial court denied his timely motion to withdraw his guilty plea, Quincy M. Jones filed a pro se motion for out-of-time appeal and a motion to vacate, void, or correct an illegal sentence. The trial court entered an order denying the two motions and subsequently entered an order denying Jones’s request for appointment of appellate counsel. In Case No. A20A0309, Jones appeals the trial court’s order denying both his motion for an out-of-time appeal and his motion to vacate, void, or correct an illegal sentence, and in Case No. A20A0310, he appeals the trial court’s order denying his motion for appointment of appellant counsel. For the reasons discussed below, in Case No. A20A0309, we vacate the trial court’s order to the extent that the court denied Jones’s motion for an out-of-time appeal and remand for further proceedings consistent with this opinion. We affirm the trial court’s order to the extent that the court denied Jones’s motion to vacate, void, or correct an illegal sentence. In Case No. A20A0310, we affirm the trial court’s order denying Jones’s request for appointment of appellate counsel.

The record reflects that on August 21, 2014, Jones entered a negotiated plea of guilty to false imprisonment and trafficking of persons for sexual servitude. He was sentenced to a total of 20 years, with the first 13 years in confinement and the remainder on probation. Jones did not directly appeal from the judgment of conviction and sentence entered on his guilty plea. On August 29, 2014, Jones, with the assistance of new counsel,¹ filed a timely motion to withdraw his guilty plea.² Jones contended that his plea had not been freely, knowingly, and voluntarily made because his plea "was induced by fraud" and that his plea counsel had rendered ineffective assistance. The trial court denied Jones’s motion to withdraw his guilty plea on November 7, 2014.

On August 13, 2018, Jones filed a pro se motion for an out-of-time appeal from the denial of his motion to withdraw his guilty plea and a pro se motion to vacate, void, or correct an illegal sentence. In his motion for an out-of-time appeal, Jones contended that his appeal from the order denying his motion to withdraw his guilty plea had been frustrated by ineffective assistance of counsel because his second counsel had failed to file a notice of appeal from that order even though Jones had repeatedly requested that he do so. In his motion to vacate, void, or correct an illegal sentence, Jones contended that he had pled guilty as the result of ineffective assistance rendered by his plea counsel, that the original indictment was defective, that arrest and search warrants issued in the case were invalid, and that he had been improperly detained and questioned by law enforcement. On September 17, 2018, the trial court entered an order denying both motions without conducting an evidentiary hearing. After Jones filed his notice of appeal from the September 2018 order, Jones filed a pro se motion for appointment of appellate counsel, which the trial court denied on December 4, 2018.³ Jones then filed a notice of appeal from the trial court’s December 2018 order.

Case No. A20A0309

1. Jones contends that the trial court erred in denying his motion for an out-of-time appeal from the denial of his motion to withdraw his guilty plea. In his motion for an out-of-time appeal, Jones asserted that he was entitled to such an appeal based on the ineffective assistance rendered by his second counsel, who failed to file a timely notice of appeal on his behalf.⁴

"It is now well established that a defendant who timely seeks to withdraw a guilty plea is entitled to the assistance of counsel. A defendant also has both the right to appeal the denial of his motion to withdraw guilty plea and the right to the effective assistance of counsel as guaranteed by the Sixth Amendment for that appeal." (Citations and punctuation omitted.) Ringold v. State , 304 Ga. 875, 878, 823 S.E.2d 342 (2019). See Blackwell v. State , 306 Ga. 577, 577, 832 S.E.2d 352 (2019). When a defendant is deprived of his right to appeal from the denial of his motion to withdraw his guilty plea due to ineffective assistance of counsel, the defendant is entitled to an out-of-time appeal. See Blackwell , 306 Ga. at 577, 832 S.E.2d 352 ; Ringold , 304 Ga. at 878-882, 823 S.E.2d 342 ; Cobb v. State , 284 Ga. 74, 74, 663 S.E.2d 262 (2008) ; Carter v. Johnson , 278 Ga. 202, 205 (2), 599 S.E.2d 170 (2004).

To establish a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must demonstrate that his counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. Ringold , 304 Ga. at 879, 823 S.E.2d 342. The Strickland standard applies when a defendant seeks an out-of-time appeal based on his counsel’s alleged ineffective assistance. Id. However, our Supreme Court has emphasized that when applying the Strickland standard in the context of a motion for an out-of-time appeal from the denial of a motion to withdraw a guilty plea, courts should conduct their inquiry consistent with the principles laid out in Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and discussed in detail in Ringold , 304 Ga. at 879-882, 823 S.E.2d 342. See Blackwell , 306 Ga. at 578, 832 S.E.2d 352. See also Garza v. Idaho , ––– U.S. ––––, 139 S.Ct. 738, 203 L.Ed.2d 77 (2019) (reaffirming principles enunciated in Flores-Ortega ).⁵

As to the deficiency prong of the ineffective assistance inquiry, Ringold , guided by Flores-Ortega , explained that "the first question that must be answered is whether counsel ‘consulted’ with the defendant about an appeal — that is, whether counsel ‘advis[ed] the defendant about the advantages and disadvantages of taking an appeal, and ma[de] a reasonable effort to discover the defendant’s wishes.’ " Ringold , 304 Ga. at 879, 823 S.E.2d 342 (quoting Flores-Ortega , 528 U.S. at 478 (II) (A), 120 S.Ct. 1029. If there was adequate consultation, then counsel performed deficiently "only if he failed ‘to follow the defendant’s express directions with respect to an appeal.’ " Id. (quoting same). But if counsel failed to consult with the defendant, the court must address " ‘whether counsel’s failure to consult with the defendant itself constitute[d] deficient performance,’ " and, in doing so, the court " ‘must take into account all the information that counsel knew or should have known.’ " Id. at 879-880, 823 S.E.2d 342 (quoting Flores-Ortega , 528 U.S. at 478, 480 (II) (A), 120 S.Ct. 1029 ). And,

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 guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.

Id. at 880, 823 S.E.2d 342 (quoting Flores-Ortega , 528 U.S. at 480 (II) (A), 120 S.Ct. 1029 ). See also

Dos Santos v. State , 307 Ga. 151, n. 6, 834 S.E.2d 733 (2019) (discussing application of deficiency prong under Ringold and Flores-Ortega ). The trial court abuses its discretion if it fails to conduct a factual inquiry into whether counsel was responsible for the failure to pursue a timely appeal. Collier , 307 Ga. at 365, n. 1, 834 S.E.2d 769.

As to the prejudice prong of the ineffective assistance inquiry, Ringold explained that " ‘a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.’ " Ringold , 304 Ga. at 881, 823 S.E.2d 342 (quoting Flores-Ortega , 528 U.S. at 484 (II) (B) (3), 120 S.Ct. 1029 ). With respect to prejudice, Ringold further emphasized:

The U. S. 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." 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. (quoting Flores-Ortega , 528 U. S. at 484-486 (II) (B) (3), 120 S.Ct. 1029 ).

Here, we cannot determine based on the existing record whether Jones’s counsel was deficient in failing to timely file a notice of appeal, given that the trial court denied Jones’s motion for an out-of-time appeal without conducting an evidentiary hearing. Furthermore, our Supreme Court had not yet issued its decision in Ringold when the trial court entered its order in this case, and thus the trial court and parties did not have the benefit of that decision to guide them. Accordingly, we vacate the trial court’s September 2018 order to the extent that it denied Jones’s motion for an out-of-time appeal, and we remand the case for the court to conduct an evidentiary hearing and determine whether Jones’s second counsel was ineffective...