Polanco v. State, Case No. S22A0174

CourtSupreme Court of Georgia
Citation313 Ga. 598,872 S.E.2d 268
Docket NumberCase No. S22A0174
Parties Saul E. POLANCO v. The STATE.
Decision Date19 April 2022

313 Ga. 598
872 S.E.2d 268


Case No. S22A0174

Supreme Court of Georgia.

April 19, 2022

Kelsey Geary Wiley, Wiley Defense, P.C., 1735 Buford Hwy, Suite 215-263, Cumming, Georgia 30041, for Appellant.

Christopher Mark DeNeve, A.D.A., Patsy A. Austin-Gatson, District Attorney, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.


313 Ga. 598

In November 2019, appellant Saul Polanco pleaded guilty to felony murder, aggravated assault, possession of a knife during the commission of a felony, and misdemeanor third-degree cruelty to children. The amended final disposition was entered on December 17, 2019, and reflects that the malice murder count was nolle prossed and that dispositions were entered as to the remaining counts. Appellant did not file a timely notice of appeal, but on June 15, 2020, he filed a pro se motion for out-of-time appeal, which appointed counsel amended. On April 1, 2021, the trial court entered an order denying the motion for out-of-time appeal, and, after appellant's counsel filed a motion for vacatur and re-entry of the order because she had not been served with it, the trial court vacated and re-entered the order on September 13, 2021. On September 14, 2021, appellant's counsel filed a notice of appeal.

However, in Cook v. State , 313 Ga. 471, 870 S.E.2d 758 (2022), this Court eliminated the judicially created out-of-time-appeal procedure in trial courts, holding that a trial court is "without jurisdiction to decide [a] motion for out-of-time appeal" on the merits because "there was and is no legal authority for motions for out-of-time appeal in trial courts." Id. at 782-83 (5), 870 S.E.2d 758. Cook also concluded that this holding is to be applied to "all cases that are currently on direct review or otherwise not yet final[,]" id., and directed that "pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided

872 S.E.2d 269

such motions on the merits ... should be vacated if direct review of the case remains pending or if the case is otherwise not final." Id. at 781-82 (4), 870 S.E.2d 758.

Accordingly, the trial court's September 13, 2021 order denying appellant's motion for out-of-time appeal is vacated, and this case is remanded for the entry of an order dismissing appellant's motion. Appellant is advised that any subsequent attempt to appeal the trial court's order entering the judgment of conviction and denying his motion for out-of-time appeal will likely be dismissed as untimely.

313 Ga. 599

See OCGA § 5-6-38 (a). Furthermore, the trial court's entry of an order on remand dismissing appellant's motion for out-of-time appeal will be unlikely to present any cognizable basis for an appeal. See Henderson v. State , 303 Ga. 241, 244, 811 S.E.2d 388 (2018) ; Brooks v. State , 301 Ga. 748, 752, 804 S.E.2d 1 (2017). If appellant believes that he was unconstitutionally deprived of his right to appeal, he may be able to pursue relief for that claim through a petition for habeas corpus, along with claims alleging deprivation of his constitutional rights in the proceedings that resulted in his conviction. See OCGA § 9-14-41 et seq. Appellant should be aware of the possible application of the restrictions that apply to such habeas corpus filings, such as the time deadlines provided by OCGA § 9-14-42 (c) and the limitation on successive petitions provided by OCGA § 9-14-51.

All the Justices concur.

Ellington, Justice, concurring.

After Saul Polanco fatally stabbed his wife, he entered a negotiated guilty plea to felony murder predicated on aggravated assault, along with other charges, on November 19, 2019. After the time allowed for filing a notice of appeal, Polanco filed pro se a motion for out-of-time appeal, which the trial court denied. The Court is vacating the trial court's order denying Polanco's motion for out-of-time appeal and remanding the case for dismissal of his motion, consistent with our recent decision in Cook v. State , 313 Ga. 471 (5), 870 S.E.2d 758 (2022). Although neither party has yet challenged the validity of Polanco's sentence, I wish to point out that the trial court imposed a sentence for Polanco's felony murder conviction that is not allowed by Georgia law. Specifically, the trial court sentenced Polanco on Count 2 to "[l]ife with [the] first 25 [y]ears to be served in confinement not eligible for parole, balance probated[.]" This is an illegal and void sentence for a felony murder conviction, as explained below, and is subject to being vacated.

Georgia's Criminal Code provides: "A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life." OCGA § 16-5-1 (e) (1). Thus, for a conviction of felony murder, "death and imprisonment for life, with or without the possibility of parole, are the only sentences prescribed by law." State v. Hanna , 305 Ga. 100, 103 (2), 823 S.E.2d 785 (2019). See also Humphrey v. State , 297 Ga. 349, 350, 773 S.E.2d 760 (2015) ("[T]he law only authorized the trial court to sentence [the defendant for murder] to death, imprisonment for life without any possibility of parole ever, or imprisonment for life with the possibility of parole as soon as permitted by law.").

313 Ga. 600

OCGA § 17-10-1 (a) (1) (A), the Code section that grants the power and authority to a judge, in fixing determinate criminal sentences generally, to suspend or probate all or part of a sentence, expressly excludes cases in which imprisonment for life, with or without the possibility of parole, may be imposed.1 See Langley v. State , 313 Ga. 141, 144-147 (2), 868 S.E.2d 759 (2022) (discussing

872 S.E.2d 270

penal statutes that include language expressly prohibiting probation for all or some part of a...

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