Mims v. State, S16A0542

• Decision Date: 06 June 2016
• Docket Number: S16A0542
• Citation: 787 S.E.2d 237,299 Ga. 578
• Parties: Mims v. The State.
• Court: Georgia Supreme Court

299 Ga. 578

787 S.E.2d 237

Mims

v.The State.

S16A0542

Supreme Court of Georgia.

Decided: June 6, 2016

Furman Mims, GDC# 280545, Augusta State Medical Prison, 3001 Gordon Highway, Grovetown, Georgia 30813, for Appellant.

Rebecca Ashley Wright, District Attorney, Joshua Bradley Smith, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Boulevard, Suite 2400, Augusta, Georgia 30901, for Appellee.

Blackwell, Justice.

In September 1985, Furman Mims pleaded guilty and was convicted of the murder and kidnapping of Robert Holbert. For these crimes, Mims was sentenced to consecutive terms of imprisonment for life. Twenty-eight years later, Mims filed a motion for leave to take an out-of-time appeal, contending that the acceptance of his plea was erroneous in several respects, and alleging that he was denied the opportunity to take a timely appeal because his lawyer failed to advise him of his right to appeal. The trial court denied the motion without a hearing, finding that the record reveals no error in the acceptance of the plea, and so, any appeal would prove unsuccessful. Mims appeals,¹ and we affirm.

1. We begin with the principles of law that inform our review of the denial of a motion for an out-of-time appeal. Our law permits a criminal defendant to take an appeal of right from a final judgment of conviction and sentence, see Keller v. State , 275 Ga. 680, 680, 571 S.E.2d 806 (2002), but even an appeal of right must be taken in a manner consistent with the laws of appellate procedure, and if it is not, the right of appeal may be forfeited. See State v. Denson , 236 Ga. 239, 240, 223 S.E.2d 640 (1976). A criminal defendant, however, is entitled to the effective assistance of counsel in connection with his appeal of right, see McAuliffe v. Rutledge , 231 Ga. 1, 2–3, 200 S.E.2d 100 (1973), and if his exercise of the right of appeal is frustrated by a denial of the guarantee of effective assistance, the Constitution demands a remedy. See Rowland v. State , 264 Ga. 872, 874–875, 452 S.E.2d 756 (1995). See also Gable v. State , 290 Ga. 81, 85–86 (2) (b), 720 S.E.2d 170 (2011). Consequently, when a defendant is denied the effective assistance of counsel and loses his right of appeal as a result, this Court has held that the defendant is entitled to take an out-of-time appeal. See Rowland , 264 Ga. at 875 (2), 452 S.E.2d 756. See also Kemp v. State , 292 Ga. 795, 795, 741 S.E.2d 652 (2013) ; Stephens v. State , 291 Ga. 837, 837–838, 733 S.E.2d 266 (2012) ; Grantham v. State , 267 Ga. 635, 635, 481 S.E.2d 219 (1997). Whether the circumstances of a particular case warrant an out-of-time appeal is a question committed in the first instance to the trial courts. See Rowland , 264 Ga. at 875–876 (2), 452 S.E.2d 756. The refusal of an out-of-time appeal, however, generally is itself appealable as of right. See Simmons v. State , 276 Ga. 525, 525 n.2, 579 S.E.2d 735 (2003).²

When a court considers a claim in connection with a motion for out-of-time appeal that a defendant was denied effective assistance, the court usually will apply the familiar standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).³ See Stephens , 291 Ga. at 838–839 (2), 733 S.E.2d 266. To prevail under that standard, a defendant must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. See Strickland , 466 U.S. at 687 (III), 104 S.Ct. 2052. And to show these things in the context of a motion for out-of-time appeal, the defendant must demonstrate that, if a timely appeal had been taken, it would have been successful. See Stephens , 291 Ga. at 838–839 (2), 733 S.E.2d 266. See also Martin v. McLaughlin , 298 Ga. 44, 45, 779 S.E.2d 294 (2015) (discussing claims of ineffective assistance of appellate counsel generally); Spriggs v. State , 296 Ga. 542, 543, 769 S.E.2d 392 (2015) (defendant could not have been prejudiced by failure of lawyer to file appeal that had no merit). Moreover, to show prejudice in this context, the defendant also must show that the deficient performance of his lawyer was, in fact, the cause of his failure to timely appeal. See Grace v. State , 295 Ga. 657, 658 (2) (a), 763 S.E.2d 461 (2014) (motion for out-of-time appeal properly denied where defendant “did not allege that ineffective assistance was the cause of his failure to file a timely direct appeal”). See also McMullen v. State , 292 Ga. 355, 356, 737 S.E.2d 102 (2013) (same).

There are special considerations, however, when a defendant seeks an out-of-time appeal from a judgment of conviction and sentence entered upon a plea of guilty. Even when a defendant has pleaded guilty, he still may be entitled to take an appeal of right, but only to the extent that the issues presented on appeal can be resolved by reference to the existing record. See Smith v. State , 253 Ga. 169, 169, 316 S.E.2d 757 (1984). See also Hagan v. State , 294 Ga. 716, 718 (3) (a), 755 S.E.2d 734 (2014). Because an out-of-time appeal is a remedy for the loss of an appeal of right, “a defendant is not entitled to an out-of-time appeal unless he had the right to file a direct appeal.” Burch v. State , 293 Ga. 816, 816, 750 S.E.2d 141 (2013) (citation and punctuation omitted). See also Henderson v. State , 293 Ga. 6, 7, 743 S.E.2d 19 (2013). For that reason, in the case of a guilty plea, “if the issues that the defendant seeks to appeal cannot be resolved from the record, he had no right to file a direct appeal, and therefore he has no right to file an out-of-time appeal.” Hagan , 294 Ga. at 718 (3) (a), 755 S.E.2d 734 (citation and emphasis omitted). See also Burch , 293 Ga. at 816, 750 S.E.2d 141 (“[T]he ability to decide the appeal based on the existing record [often] is the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.” (Citation and punctuation omitted)). On the other hand, if the defendant seeks to raise claims on appeal that can be resolved by reference to the existing record, but the record shows that those claims are without merit, then a timely appeal would have been unsuccessful, and the defendant cannot show that he was denied the effective assistance of counsel in connection with his right of appeal. See Stephens , 291 Ga. at 839 (2), 733 S.E.2d 266. See also Smith v. State , 287 Ga. 391, 403, n. 5, 697 S.E.2d 177 (2010) ; Marion v. State , 287 Ga. 134, 134, 695 S.E.2d 199 (2010). In that event, the motion for out-of-time appeal can be denied without an evidentiary hearing to determine whether the frustration of the right of appeal is, in fact, attributable to counsel. See Stephens , 291 Ga. at 839 (2), 733 S.E.2d 266. “In sum, in deciding a motion for out-of-time appeal, the trial court must hold an evidentiary hearing to determine whether defense counsel's unprofessional conduct was the cause of the untimeliness only where the motion raises an issue that would have been meritorious on the existing record had a timely appeal been taken.” Id. (citation omitted).

See also Grace , 295 Ga. at 659 (2) (b), 763 S.E.2d 461. With these principles in mind, we turn now to the denial of Mims's motion for out-of-time appeal.

2. In this case, the trial court denied the motion for out-of-time appeal without an evidentiary hearing, concluding that the existing record forecloses each of the claims of error that Mims seeks to press on appeal. In his motion, Mims asserted that the acceptance of his plea was erroneous in five respects. First, he said, the record of the plea proceeding fails to show that he was advised of his privilege against self-incrimination. Second, he alleged that the record likewise fails to show that he was advised of his right to confrontation. Third, Mims asserted that the record reveals no factual basis for his plea. Fourth, the record shows, he said, that his plea was induced by impermissible promises of leniency. And finally, Mims contended generally that his plea was not a knowing, intelligent, and voluntary one. To the extent that these claims of error can be resolved by reference to the existing record, we agree with the trial court that the record refutes the claims. And to the extent that these claims of error require more factual development, Mims must look for redress by way of a petition for a writ of habeas corpus, rather than an out-of-time appeal. See Stephens , 291 Ga. at 838 (2), 733 S.E.2d 266.

(a) We begin with the first and second claims of error—that the record fails to show that Mims was advised of his privilege against self-incrimination and the right to confrontation—and we conclude that those claims are refuted by the record. When a judgment of conviction and sentence are entered upon a plea of guilty, the record must establish that the defendant at the time of his plea was aware of “the essential constitutional protections that the accused would enjoy if he instead insisted upon a trial, protections that he waives by pleading guilty and consenting to judgment without a trial.” Lejeune v. McLaughlin , 296 Ga. 291, 292, 766 S.E.2d 803 (2014) (citations omitted). As the United States Supreme Court explained in Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), among these essential protections are the constitutional privilege against self-incrimination and the constitutional right of confrontation. See 395 U.S. at 243, 89 S.Ct. 1709.⁴

Mims correctly notes that the transcript of his plea proceeding does not itself show that the plea judge—or anyone else—specifically advised Mims in connection with his plea of the privilege against self-incrimination or the right of confrontation. Even so, the record of the plea does not consist solely of the transcript. It includes a written plea and acknowledgment-and-waiver-of-rights form—bearing the signatures of Mims and his lawyer—that advised Mims of his privilege against self-incrimination⁵ and the right of confrontation,⁶ on which...