Orozco v. State, A21A1757

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPinson, Judge.
Citation868 S.E.2d 798,362 Ga.App. 388
Docket NumberA21A1757
Decision Date28 January 2022
Parties OROZCO v. The STATE.

362 Ga.App. 388
868 S.E.2d 798

OROZCO
v.
The STATE.

A21A1757

Court of Appeals of Georgia.

January 28, 2022


Maryann Faith Blend, for Appellant.

Patsy A. Austin-Gatson, Connor Manning Payne, Tristan Wade Gillespie, for Appellee.

Pinson, Judge.

362 Ga.App. 388

Carlos Orozco entered into a negotiated guilty plea for armed robbery and aggravated assault. Close to two years after sentencing, Orozco moved for an out-of-time appeal from the judgment of conviction entered on his guilty plea, claiming that his plea counsel rendered ineffective assistance by failing to advise him of his right to appeal. We affirm the trial court's order denying that motion because Orozco failed to show that counsel rendered deficient performance by not advising him of his right to appeal. The record offers no reason to think that a rational defendant would have wanted to appeal in Orozco's circumstances—i.e., having recorded a confession and facing a possible life sentence

868 S.E.2d 800

if he went to trial. And Orozco neither expressed dissatisfaction with his plea nor demonstrated any interest in appealing until many months after sentencing. For these reasons, counsel did not render deficient performance by not consulting with Orozco about an appeal, which means that Orozco lacks a valid ground for an out-of-time appeal.

Background

Orozco and a co-defendant robbed a victim at gunpoint. Orozco was indicted on one count of armed robbery, two counts of aggravated

362 Ga.App. 389

assault and one count of possession of a weapon during the commission of a felony. The State proffered that the victim identified Orozco in a photo line-up as the perpetrator of the armed robbery, and that, during a custodial interview, Orozco admitted to participating in the robbery but stated that the weapon he used was a cell phone and not a firearm.

After the trial court denied Orozco's motion to suppress his statement, he entered into a negotiated guilty plea for one count of armed robbery and one count of aggravated assault. In exchange for the plea, the State agreed to dismiss the remaining counts. After a plea colloquy and the presentation of mitigating evidence, the trial court sentenced Orozco to twenty years with the first ten to be served in confinement.

Nearly 20 months later, Orozco filed a pro se motion for an out-of-time appeal. He claimed that his trial counsel gave constitutionally ineffective assistance by failing to inform him that he could appeal his conviction. He asserted that had he been so informed, he would have appealed on the grounds that the trial court (1) failed to exercise its discretion to sentence him for less than the mandatory minimum sentence for his armed robbery conviction, and (2) improperly coerced him into accepting the plea offer. The trial court appointed appellate counsel and, after a hearing, denied the motion for an out-of-time appeal. Orozco appeals from that denial.

Discussion

We review the trial court's ruling on a motion for an out-of-time appeal for abuse of discretion. Burley v. State , 308 Ga. 650, 651, 842 S.E.2d 851 (2020).

A defendant is entitled to an out-of-time appeal if he can "prove an excuse of constitutional magnitude for failing to file a timely direct appeal." Collier v. State , 307 Ga. 363, 364 (1), 834 S.E.2d 769 (2019). Accord Davis v. State , 310 Ga. 547, 548–49 (2), 852 S.E.2d 517 (2020). One such excuse is that the defendant's counsel gave constitutionally ineffective assistance in providing advice about or acting on an appeal. Collier , 307 Ga. at 364 (1), 834 S.E.2d 769. When that is the defendant's claim, as it is here, we review it under the familiar two-part standard announced in Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. That standard, applied in the context of establishing the right to an out-of-time appeal, requires the defendant to show (1) that counsel's conduct in advising or acting on the appeal "fell below an objective standard of reasonableness," and (2) but for that deficient performance,

362 Ga.App. 390

there is a "reasonable probability" that he would have timely appealed. Collier , 307 Ga. at 365 (2), 834 S.E.2d 769. This standard applies whether...

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