McCarthy v. State

• Decision Date: 28 August 2017
• Docket Number: S17A0693.
• Parties: MCCARTHY v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 803

804 S.E.2d 424

MCCARTHY

v.The STATE.

S17A0693.

Supreme Court of Georgia.

Decided: August 28, 2017

Robert Michael Thomas, PATAULA PUBLIC DEFENDERS OFFICE, P.O. Box 668, Colquitt, Georgia 39837, Sherry D. Widner, PATAULA PUBLIC DEFENDERS OFFICE, PO Box 542, Donalsonville, Georgia 39845, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Scott Orion Teague, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Thomas Craig Earnest, District Attorney, Ronald Steven Smith, Chief A.D.A., PATAULA JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Drawer 30, Cuthbert, Georgia 39840, for Appellee.

Boggs, Justice.

Rodney McCarthy appeals from the trial court's order denying his request for an out-of-time appeal.¹ Finding that the trial court did not abuse its discretion in denying the request for an out-of-time appeal, we affirm the judgment of the trial court.

In October 1999, McCarthy, represented by retained counsel, was convicted in Quitman County of malice murder, possession of a firearm during commission of a crime, concealing the death of another, and tampering with evidence in connection with the death of Crystal Harewood. McCarthy requested and received a sentence review, but did not file a motion for new trial or a notice of appeal.

McCarthy took no further action in this matter until four years later, on October 17, 2004, when he wrote a letter to the judge who presided at his trial seeking a copy of the trial transcript. The clerk of Quitman County Superior Court responded, informing McCarthy that the court reporter who took down the trial had suffered a stroke, and that the court did not have any transcripts from that time. At approximately the same time, McCarthy filed a petition for a writ of habeas corpus. The petition asserted four grounds for relief: that McCarthy's trial attorney was constitutionally ineffective for failing to file a notice of appeal or pursue an appeal; that the trial court erred in charging the jury on whether or not the jury could infer an intent to kill; that the trial court erred in failing to charge the jury on voluntary manslaughter; and that McCarthy was denied due process. The special assistant attorney general assigned to McCarthy's habeas case also requested the transcript from the clerk's office. Several weeks later, the clerk of court filed a transcription prepared by a new court reporter of portions of the jury trial taken down by the original reporter, including the court's charge to the jury, the verdict, and sentencing.²

The habeas court set a hearing date of March 4, 2005, and held a hearing, at which McCarthy's trial counsel testified. McCarthy's questioning of his trial counsel and his testimony to the court pertained entirely to whether he was informed of his right to appeal. On May 11, 2005, the habeas court issued a final order denying the writ, finding that "the gravamen of Petitioner's claim is that he received ineffective assistance of counsel for counsel's failure to timely file a notice of appeal." The habeas court found that McCarthy failed to show that his trial counsel was deficient, specifically finding that both the trial court and McCarthy's trial counsel advised him of his right to appeal and that McCarthy's "failure to pursue a direct appeal was due solely to his own inaction." McCarthy's application for a certificate of probable cause to appeal to this court was denied on October 2, 2006.

On December 18, 2006 and January 20, 2007, McCarthy filed pro se motions styled "Out-of-Time Motion For New Trial," which amounted to extraordinary motions for new trial. The trial court denied both motions on August 10, 2007. McCarthy filed a timely notice of appeal to the Court of Appeals. The appeal was transferred to this Court, which dismissed the appeal on January 7, 2008, because McCarthy failed to file an application for a discretionary appeal.

Over three years later, on July 15, 2011, McCarthy again wrote to the clerk of Quitman County Superior Court seeking the trial transcript. The clerk responded that no transcripts had been received, noting that the court reporter who succeeded the original reporter had likewise retired after becoming ill, and suggesting that McCarthy contact his attorney. On October 3, 2011, appearing pro se, McCarthy filed a motion for an out-of-time appeal and an extraordinary motion for new trial. On February 22, 2012, McCarthy filed a motion for appointment of counsel and to proceed in forma pauperis. The trial court appointed counsel, who, on April 10, 2012, entered an appearance on McCarthy's behalf. Over three years later, on April 30, 2015, counsel filed an amended extraordinary motion for new trial and request for an out-of-time appeal, and a brief in support. The motion and brief alleged that McCarthy was deprived of his due process rights with regard to a direct appeal of his conviction and representation by counsel. The trial court denied both motions, ruling that McCarthy's habeas petition in 2005 and his motion for an out-of-time appeal in 2007 raised the same issues and had been decided adversely to McCarthy. From this order, McCarthy appeals.

1. In McCarthy's first enumeration of error, he asserts that the trial court erred in holding that his most recent motion for an out-of-time appeal was barred by res judicata, collateral estoppel, or issue preclusion.

The grant or denial of a motion for an out-of-time appeal is reviewed under an abuse of discretion standard.

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