Kelly v. State

• Decision Date: 21 June 2021
• Docket Number: S21A0184
• Citation: 860 S.E.2d 740,311 Ga. 827
• Court: Georgia Supreme Court
• Parties: KELLY v. The STATE.

311 Ga. 827

860 S.E.2d 740

KELLY

v.The STATE.

S21A0184

Supreme Court of Georgia.

Decided: June 21, 2021

Chevene B. King, Jr., C. B. King & Associates, P.O. Box 3468, Albany, Georgia 31706-3468, for 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, Darius T. Pattillo, District Attorney, Sharon Lee Hopkins, A.D.A., Flint Circuit District Attorney's Office, One Courthouse Square, West Tower, 3rd Floor, McDonough, Georgia 30523, Elizabeth Rosenwasser, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Atlanta, Georgia 30303, for Appellee.

Lagrua, Justice.

This appeal presents the question of whether, when a trial court has denied a criminal defendant's motion for new trial and the defendant subsequently seeks and is granted an out-of-time appeal, the defendant is authorized to file a second motion for new trial to raise claims other than those alleging the ineffective assistance of trial counsel that could not have been raised in the initial motion. We conclude that a defendant is not authorized to do so. For this reason, this appeal is untimely and must be dismissed.

Appellant Paula Vernisa Kelly was convicted of murder and other crimes in 2015. Through new counsel, Kelly filed a motion for new trial, which was denied in an order entered on September 11, 2018. On October 15, 2018, Kelly filed a notice of appeal. Because the notice of appeal was filed more than 30 days after the denial of the motion for new trial, this Court dismissed the appeal as untimely. See Kelly v. State , Case No. S19A0639 (Feb. 18, 2019); see also OCGA § 5-6-38 (a) ("A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial ... has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion. ..."). In the dismissal order, we advised Kelly of her right to seek an out-of-time appeal and stated that, if an out-of-time appeal were granted, "appellant will have 30 days from the grant within which to file a notice of appeal."

Kelly thereafter sought an out-of-time appeal in the trial court, and the motion was granted on March 22, 2019. The court's order incorrectly stated that "[Kelly's] counsel did not file a timely motion for new trial" and advised Kelly that she could "file a motion for new trial or notice of appeal within 30 days from the date of this Order." Kelly then filed a second motion for new trial on Monday, April 22, 2019.¹ In this second motion for new trial, in which Kelly was represented by the same counsel as in her initial motion, Kelly asserted substantially similar claims as those previously raised and rejected. The second motion was denied on September 13, 2019. From that order, Kelly filed the notice of appeal now before us on Monday, October 14, 2019.

"[I]t is the duty of this Court to inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction." State v. Intl. Keystone Knights of the Ku Klux Klan, Inc. , 299 Ga. 392, 396 (2), 788 S.E.2d 455 (2016) (citation and punctuation omitted). "The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court." Veasley v. State , 272 Ga. 837, 838, 537 S.E.2d 42 (2000) (citation and punctuation omitted; emphasis in original).

There is no question that Kelly's October 14, 2019 notice of appeal was timely filed from the September 13, 2019 order denying her second motion for new trial. See OCGA §§ 5-6-38 (a), 1-3-1 (d) (3). There is a question, however, about whether Kelly was authorized to file that second motion for new trial after the grant of her motion for an out-of-time appeal. If the second motion for new trial was not authorized, then the October 14, 2019 notice of appeal, filed well past the 30-day deadline from the March 22, 2019 order granting the motion for out-of-time appeal, would be untimely.

See Debter v. Stephens , 297 Ga. 652, 652-653, 777 S.E.2d 244 (2015) (where a motion for new trial is not a proper vehicle of review, it does not toll the time for filing a notice of appeal).

Successive motions for new trial in criminal cases are generally barred under our Code. See OCGA § 5-5-41 (b) ("Whenever a motion for a new trial has been made within the 30 day period in any criminal case and overruled ..., no motion for a new trial from the same verdict or judgment shall be made or received unless the same is an extraordinary motion or case[.]"). This general rule, however, has given way to a limited degree where an out-of-time appeal is granted, and a defendant is permitted to file a second motion for new trial in order to raise claims of trial counsel ineffectiveness that could not have been raised in the initial motion for new trial. See Maxwell v. State , 262 Ga. 541, 542-543, 422 S.E.2d 543 (1992) (following denial of motion for new trial, grant of out-of-time appeal, and appointment of new appellate counsel, defendant was permitted to raise ineffectiveness claims in a second motion for new trial).² See also Robinson v. State , 306 Ga. 614, 617 n.4, 832 S.E.2d 411 (2019) (noting that, following grant of out-of-time appeal, defendant would have had to raise trial counsel ineffectiveness claims in second motion for new trial to preserve them); Andrews v. State , 278 Ga. 854, 854, 607 S.E.2d 543 (2005) (concluding that, following grant of out-of-time appeal, "a second motion for new trial was required" to preserve trial counsel ineffectiveness claims); Maddox v. State , 278 Ga. 823, 826 (5), 607 S.E.2d 587 (2005) ("The fact that the trial court had denied appellant's motion for new trial prior to granting the out-of-time appeal did not preclude appellant from filing a second motion for new trial raising the issue of ineffective assistance of trial counsel.").

Here, the claims Kelly raised in her second motion for new trial were not claims of ineffective assistance that she was unable to assert in her initial motion for new trial. In fact, Kelly, who has been represented by the same appellate counsel since her sentencing, asserted trial counsel ineffectiveness claims in her initial motion for new trial. These claims, along with the other claims raised in the initial motion, were heard and rejected. Thus, Kelly's circumstances do not fit within the exception carved out in Maxwell and its progeny.

We acknowledge that certain language in our opinion in Maxwell could be construed to mean that the grant of an out-of-time appeal gives a defendant carte blanche to "start the post-conviction process anew." 262 Ga. at 542-543 (3), 422 S.E.2d 543. But we do not read our holding in Maxwell in such broad terms. Notably, the case we cited in Maxwell in support of the notion of "start[ing] ... anew" was a case involving trial counsel ineffectiveness claims that could have been raised in a second motion for new trial after the grant of an out-of-time appeal. See Bell v. State , 259 Ga. 272, 272, 381 S.E.2d 514 (1989).

In addition, review of our post- Maxwell precedent has uncovered no case in which we have relied on Maxwell to justify the filing of a second motion for new trial raising claims other than previously unavailable ineffectiveness claims following the grant of an out-of-time appeal. Rather, the Court has cited Maxwell almost exclusively in connection with situations, like that in Maxwell , involving trial counsel ineffectiveness claims raised in a second motion for new trial by new appellate counsel following the grant of an out-of-time appeal. See Lynn v. State , 310 Ga. 608, 608 n.1, 852 S.E.2d 843 (2020) ; Robinson , 306 Ga. at 617 n.4, 832 S.E.2d 411 ; Andrews , 278 Ga. at 854, 607 S.E.2d 543 ; Maddox , 278 Ga. at 826 (5), 607 S.E.2d 587 ; Robinson v. State , 275 Ga. 143, 144 (4), 561 S.E.2d 823 (2002), overruled on other grounds by Worthen v. State , 304 Ga. 862, 874 n.8, 823 S.E.2d 291 (2019) ; Chatman v. State , 265 Ga. 177, 178 (2), 453 S.E.2d 694 (1995) ; Rowland v. State , 264 Ga. 872, 876 n.8, 452 S.E.2d 756 (1995). And none of the remaining cases citing Maxwell involve successive motions for new trial at all. See Fairclough v. State , 276 Ga. 602, 602 (1), 581 S.E.2d 3 (2003) (citing Maxwell ’s statement that an out-of-time appeal "start[s] the post-conviction process anew," holding that the grant of an out-of-time appeal revives an initially untimely first motion for new trial); Glover v. State , 266 Ga. 183, 184 n.5, 465 S.E.2d 659 (1996) (citing Maxwell for general proposition that trial counsel ineffectiveness claims must be raised at earliest practicable moment). See also Collier v. State , 307 Ga. 363, 382, 834 S.E.2d 769 (2019) (Peterson, J., concurring specially) (citing Maxwell ’s special concurrence in observing that our post-conviction jurisprudence is " ‘confusing’ and ‘incredible’ "). And while we indicated in Maxwell that trial courts have "discretion to refuse to reopen issues that [they] decided in the first motion for new trial," 262 Ga. at 543, 422 S.E.2d 543, which necessarily implies they also have discretion to agree to reopen such issues, there is no indication that we intended to allow such reconsideration of issues in the absence of a previously unavailable trial counsel ineffectiveness claim, which is the sole basis on which the second motion for new trial may properly proceed. To hold otherwise would run contrary to OCGA § 5-5-41 (b).

In addition, though we used similarly broad language in Ponder , on which our holding in Maxwell heavily relies, that language must be read in the context of Ponder ’s posture, in which the defendant had not previously filed a motion for new trial. See Ponder v. State , 260 Ga. 840, 841 (1), 400 S.E.2d 922 (1991) (stating that the...