McDaniel v. State

• Decision Date: 05 April 2021
• Docket Number: S21A0217
• Citation: 857 S.E.2d 479,311 Ga. 367
• Court: Georgia Supreme Court
• Parties: MCDANIEL v. The STATE.

311 Ga. 367

857 S.E.2d 479

MCDANIEL

v.The STATE.

S21A0217

Supreme Court of Georgia.

Decided: April 5, 2021

Reconsideration Denied May 3, 2021

Robert S. McDaniel, pro se.

Dick Donovan, District Attorney, Anthony B. Williams, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

Warren, Justice.

Appellant Robert McDaniel appeals pro se from the trial court's denial of his motion for out-of-time appeal, his general demurrer, and his motion in arrest of judgment. For the reasons that follow, we affirm in part and dismiss in part.

On May 12, 2014, a Paulding County grand jury indicted McDaniel for malice murder (Count 1); felony murder (Count 2); possession of a firearm during the commission of the offense of murder (Count 3); aggravated assault, family violence (Count 4); possession of a firearm during the commission of aggravated assault (Count 5); and aggravated stalking (Count 6) in connection with the shooting death of Maria Nunez-McDaniel. The grand jury also indicted McDaniel for aggravated assault (Count 7) and possession of a firearm during the commission of a felony (Count 8) in connection with an assault on Julia Olmos.

On November 4, 2014, McDaniel entered a negotiated guilty plea to malice murder, possession of a firearm during the commission of the offense of murder, and aggravated stalking, as well as to the aggravated assault against Olmos. As part of the plea, Counts 2, 5, and 8 were nolle prossed, and Count 4 was merged with the malice murder count. McDaniel was sentenced to serve life with the possibility of parole for malice murder, a probated five-year consecutive sentence on Count 3, and two ten-year concurrent sentences on Counts 6 and 7.

In 2018, McDaniel filed a motion for out-of-time appeal, which the trial court denied without a hearing. McDaniel filed an application for discretionary appeal, which we granted under OCGA § 5-6-35 (j) because McDaniel had a right of direct appeal. See Case No. S18D1312 (June 15, 2018). McDaniel then filed a notice of appeal, and we ultimately vacated the trial court's order denying his motion for out-of-time appeal and remanded the case for the trial court to hold an evidentiary hearing and determine whether plea counsel's constitutionally ineffective assistance was responsible for McDaniel's failure to pursue a timely appeal. See Case No. S19A0660 (Oct. 21, 2019); Collier v. State , 307 Ga. 363, 376, 834 S.E.2d 769 (2019).

Following that remand, McDaniel filed a general demurrer and motion in arrest of judgment in the trial court, contending that the malice murder and aggravated assault counts of his indictment were defective because they failed to allege essential elements of those crimes. In July 2020, the trial court held a hearing on McDaniel's motion for out-of-time appeal, his general demurrer, and his motion in arrest of judgment. On August 27, 2020, the trial court entered an order denying McDaniel's motion for out-of-time appeal, ruling that his plea counsel did not perform deficiently in failing to file an appeal on McDaniel's behalf. The next day, the trial court entered an order denying McDaniel's general demurrer and his motion in arrest of judgment, ruling that they were "untimely and substantively lack[ed] any merit."

1. In his notice of appeal, McDaniel specified that he was appealing from the trial court's August 27, 2020 order denying his motion for out-of-time appeal. However, he did not challenge that order in his initial brief on appeal. And even to the extent his reply brief could perhaps be construed as challenging that order, McDaniel is not entitled to have the challenge considered when it is not raised in his initial brief. See Williams v. State , 307 Ga. 689, 689 n.2, 838 S.E.2d 314 (2020) (holding that a pro se appellant " ‘who raises an argument for the first time in a reply brief is not entitled to have that argument considered’ " (citation omitted)). In any event, however, a claim that the trial court erred in denying McDaniel's motion for out-of-time appeal would be without merit.¹

Where, as here, "a defendant alleges that he was deprived of an appeal of right that he otherwise would have pursued by his counsel's constitutionally deficient performance in providing advice about or acting upon such appeal, that alleged violation ‘is reviewed under the familiar standard of Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).’ " Davis v. State , 310 Ga. 547, 549, 852 S.E.2d 517, 519 (2020) (quoting Moore v. State, 308 Ga. 312, 313, 840 S.E.2d 353 (2020) (punctuation omitted)).

With respect to the first component of the Strickland standard, the defendant must show that his appeal of right was lost as a consequence of his counsel's deficient performance, and the trial court must make a factual inquiry into those allegations. With respect to the second component of the Strickland standard, the defendant is required to demonstrate only that there is a reasonable probability that, but for counsel's deficient performance, he would have timely appealed.

Id. (citation and punctuation omitted).

To determine whether counsel was constitutionally ineffective for failing to file a timely notice of appeal, 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."

If counsel adequately consulted with the defendant, counsel performed deficiently only if he failed "to follow the defendant's express instructions with respect to an appeal."

Ringold v. State , 304 Ga. 875, 879, 823 S.E.2d 342 (2019) (quoting Roe v. Flores-Ortega , 528 U.S. 470, 478, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ). "However, if counsel did not consult with the defendant, ‘the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitute(d) deficient performance.’ " Ringold , 304 Ga. at 879, 823 S.E.2d 342 (quoting Flores-Ortega , 528 U.S. at 478, 120 S.Ct. 1029 ). And

[c]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.

Id. (quoting Flores-Ortega , 528 U.S. at 480, 120 S.Ct. 1029 (punctuation omitted)).

In making this determination, courts must take into account all the information counsel knew or should have known. See [ Strickland ,] 466 U.S. at 690, 104 S.Ct. 2052 (focusing on the totality of the circumstances). Although not determinative, 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. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.

Davis , 310 Ga. at 551, 852 S.E.2d at 521 (quoting Flores-Ortega , 528 U.S. at 480, 120 S.Ct. 1029 (punctuation omitted)).

At the hearing on McDaniel's motion for out-of-time appeal, plea counsel testified that at the time of the plea proceedings, McDaniel did not indicate to her that he wanted to appeal his plea and sentence and that he never contacted her about the case from the time of the plea in November 2014 to the time plea counsel left the public defender's office in November 2015. She also testified that McDaniel, who was 46 years old at the time of the plea, was concerned about receiving a sentence of life without the possibility of parole. When asked if "a big part of [the] plea negotiations" was "to ensure" that McDaniel received a sentence of life with the possibility of parole, plea counsel testified, "Yeah, I mean ..., I can't remember exactly ... my line of thought .... But from my experience, I can tell you that with a murder charge, yes, that is always going to be a concern and part of the thought process." Plea counsel acknowledged that she discussed with McDaniel paragraph 18 of the plea agreement, which provided that McDaniel understood "that any motion to withdraw this guilty plea must be filed within this term of court." But she testified that apart from the plea agreement, she did not advise McDaniel about his right to appeal from the plea.

The trial court found that plea counsel did not consult with McDaniel about his right to appeal following the entry of his plea, and the State does not dispute that finding on appeal. Nonetheless, the trial court concluded that plea counsel's failure to consult was not constitutionally deficient based on the considerations set forth in Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029, and we conclude that the trial court did not err in reaching that conclusion.

First, plea counsel testified that McDaniel never expressed to her an interest in appealing from his guilty plea, either immediately following the plea or at any time before she left the public defender's office about a year later. Second, a "highly relevant factor in this inquiry" is that McDaniel's convictions followed his plea of guilty. Id. Moreover, McDaniel "received the...