Jones v. State
| Decision Date | 13 March 2020 |
| Docket Number | S20A0372 |
| Citation | 840 S.E.2d 357,308 Ga. 337 |
| Court | Georgia Supreme Court |
| Parties | JONES v. The STATE. |
Tracy Michelle Jones, GDC# 1001203275, Lee Arrendale State Prison, PO Box 709, Alto, Georgia 30510, Attorneys for the Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Karl David Cooke, Jr., District Attorney, Shelley T. Milton, A.D.A., Macon Judicial Circuit District Attorney's Office, 661 Mulberry Street, 2nd Fl, Grand Building, Macon, Georgia 31201, Attorneys for the Appellee.
Tracy Jones, who pleaded guilty to murder and other offenses, filed a motion for out-of-time appeal, claiming that her plea counsel abandoned her after sentencing and that her right to appeal was thereby frustrated. The trial court denied Jones's motion on the basis that she did not allege that her failure to file a timely appeal was due to ineffective assistance of counsel. But she did sufficiently state such an allegation in her pro se motion, and so we vacate and remand for a hearing as to whether counsel's ineffectiveness in fact frustrated her right to appeal.
On November 18, 2013, Jones pleaded guilty to malice murder, three counts of felony murder, aggravated assault, burglary, false imprisonment, and theft by taking, all stemming from the October 2012 death of Gail Spencer. The trial court sentenced Jones to life without parole for malice murder, along with several additional concurrent sentences for other offenses. Jones did not file a direct appeal from her convictions and sentences.1
On June 13, 2019, Jones filed a pro se motion for an out-of-time appeal. She claimed that she "was abandoned by [plea counsel] after sentencing, during the 30 days she had to file a direct appeal from the guilty plea, as well as the term of the court in which she had to withdraw her guilty plea." She added that the date of her guilty plea and sentencing was the last time she spoke with appointed counsel. The trial court denied the motion for out-of-time appeal on July 9, 2019. Jones appeals that order.
We review a trial court's denial of a motion to file an out-of-time appeal for an abuse of discretion. See McCarthy v. State , 301 Ga. 803, 805 (1), 804 S.E.2d 424 (2017). A defendant seeking an out-of-time appeal "must allege and prove an excuse of constitutional magnitude for failing to file a timely direct appeal," usually by showing that counsel's ineffectiveness deprived the defendant of the right to an appeal. Collier v. State , 307 Ga. 363, 364 (1), 834 S.E.2d 769 (2019) (quoting Bailey v. State , 306 Ga. 364, 364, 828 S.E.2d 300 (2019) ). "When a defendant alleges he was deprived of his appeal of right due to trial counsel's ineffective assistance, the court must determine whether counsel was responsible for the failure to pursue a timely appeal." Collier , 307 Ga. at 365 (1) n.1, 834 S.E.2d 769. "A trial court abuses its discretion when it fails to make such a factual inquiry." Id. (citation and punctuation omitted)). In order to obtain an out-of-time appeal, a defendant need not show that she actually would have prevailed in a timely appeal, even if she is seeking to appeal directly from a judgment entered on a guilty plea. See id. at 364 (1), 834 S.E.2d 769.
Here, the trial court recognized as a general matter that a defendant is entitled to an out-of-time appeal when the defendant's failure to file a timely appeal was caused by ineffective assistance of counsel.
The trial court nonetheless ruled that Jones was not entitled to an out-of-time appeal because she had "not alleged that ineffective assistance of counsel was the cause of any failure on the part of the defendant to file a timely direct appeal from the judgment entered on her guilty plea." But reading Jones's motion generously in the light of her pro se status, Jones does allege that her failure to file a timely appeal was due to the ineffective assistance of counsel. Specifically, Jones alleges that any rational person sentenced to life without...
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