Rowland v. State

• Citation: 264 Ga. 872,452 S.E.2d 756
• Decision Date: 24 January 1995
• Docket Number: S95A0346,Nos. S94A1326,s. S94A1326
• Parties: ROWLAND v. The STATE. STARKS v. The STATE.
• Court: Georgia Supreme Court

Page 756

452 S.E.2d 756

264 Ga. 872

ROWLAND v. The STATE.

STARKS v. The STATE.

Nos. S94A1326, S95A0346.

Supreme Court of Georgia.

Jan. 24, 1995.

Reconsideration Denied Feb. 9, 1995.

Walton Hardin, Washington, for Rowland.

Dennis C. Sanders, Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., Atlanta, M. Eric Eberhardt, Asst. Dist. Atty., Thomson, for State in No. S94A1326.

Claudia S. Saari, Office of Public Defender, Decatur, for Starks.

J. Tom Morgan, Dist. Atty., Barbara Conroy, Special Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Atlanta, for State in No. S95A0346.

Rachelle L. Strausner, Asst. Atty. Gen., Atlanta.

BENHAM, Presiding Justice.

Appellant Rowland was convicted of murder and possession of a firearm during the commission of a felony, and sentenced to life imprisonment on November 9, 1993. ¹ His amended motion for new trial was denied by order filed March 9, 1994, and his notice of appeal was filed 43 days later.

Appellant Starks was convicted of murder, aggravated assault, and possession of a firearm during the commission of a felony and sentenced to life imprisonment and a term of years in 1990. ² His motion for new trial following remand was denied by order filed November 16, 1993, and his notice of appeal, filed by counsel other than appellate counsel, was filed 31 days later. We have consolidated the appeals because each case involves the untimely filing of the notice of appeal by a criminal defendant represented by appellate counsel.

1. "[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. [Cits.]" Stephenson v. Futch, 213 Ga. 247(1), 98 S.E.2d 374 (1957). " 'The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.' [Cit.]" Hester v. State, 242 Ga. 173, 175, 249 S.E.2d 547 (1978). OCGA § 5-6-38(a) requires that a notice of appeal be filed within 30 days after entry of the judgment complained of, or within 30 days after the entry of the order finally disposing of a motion for new trial. The failure to file timely a notice of appeal subjects the appeals at bar to dismissal.

However, the dismissal of a represented criminal defendant's direct appeal from his conviction raises constitutional questions. Twenty years ago, in McAuliffe v. Rutledge, 231 Ga. 745, 204 S.E.2d 141 (1974), this court determined that a criminal defendant was entitled to effective assistance of counsel on appeal.

An attorney who through negligence, ignorance, or misinterpretation of the law ... fails to perform routine duties resulting in a dismissal of his client's appeal, thereby denying such client a right of review after conviction cannot be said to be rendering effective assistance. The result is the same as no assistance at all.

Id. More recently, in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the U.S. Supreme Court recognized that a state court's dismissal of a criminal defendant's appeal of right due to the ineffective assistance of appellate counsel may violate the defendant's right to due process of law.

This court and more often the Court of Appeals have employed several methods when faced with a represented criminal defendant's appeal that is procedurally deficient. We have expressed reluctance to dismiss the appeal for failure to file a timely notice of appeal. See Adams v. State, 264 Ga. 71(1), 440 S.E.2d 639 (1994) (errors enumerated by appellant addressed); Brantley v. State, 190 Ga.App. 642, 379 S.E.2d 627 (1989); Johnson v. State, 183 Ga.App. 168, 358 S.E.2d 313 (1987); Clark v. State, 182 Ga.App. 752, 357 S.E.2d 109 (1987); Boothe v. State, 178 Ga.App. 22, 342 S.E.2d 9 (1986) (record reviewed for substantive error despite dismissal due to untimely notice of appeal). But see Hubbard v. State, 208 Ga.App. 719, 431 S.E.2d 479 (1993); Watson v. State, 202 Ga.App. 667, 415 S.E.2d 306 (1992); Clay v. State, 194 Ga.App. 354, 391 S.E.2d 143 (1990); Snelson v. State, 190 Ga.App. 320, 378 S.E.2d 723 (1989); Rimes v. State, 182 Ga.App. 721, 356 S.E.2d 897 (1987) (appeals dismissed due to untimely notice of appeal). In an effort to comport with Evitts v. Lucey, supra, the Court of Appeals modified its rules (see DeBroux v. State, 176 Ga.App. 81, 335 S.E.2d 170 (1985)) ³, and reviewed the criminal appellate record for substantive error when a timely-filed appeal was not followed by the defendant's timely-filed brief and enumeration of errors. See Allen v. State, 192 Ga.App. 320, 385 S.E.2d 29 (1989); Golden v. State, 190 Ga.App. 477, 379 S.E.2d 230 (1989); Hubbard v. State, 183 Ga.App. 395, 360 S.E.2d 78 (1987). But see Whittle v. State, 210 Ga.App. 841, 437 S.E.2d 842 (1993) (overruling Allen v. State, supra). Most recently, the Court of Appeals dismissed without prejudice and remanded to the trial court a timely-filed criminal appeal in which appellate counsel had failed to file a brief and enumeration of error despite having been ordered to do so. Mitchell v. State, 214 Ga.App. 69, 447 S.E.2d 140 (1994). See also Favors v. State, S94A1234 (July 22, 1994), and Mobley v. State, S92A1116 (Sept. 11, 1992) wherein the appellate courts issued orders similar to that issued in Mitchell. The appeals before us present this court with its first opportunity to examine the issue in depth and provide a means for uniform treatment of such appeals.

The attempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings, while laudable, do a disservice to the courts, the criminal defendant, and appellate counsel. The practice requires the appellate court to ignore jurisdictional and procedural statutes and rules, ⁴ and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error. In addition to clouding the appellate court's function, such action replaces a scrutiny of the trial record by a criminal defendant or his counsel with the appellate court's cursory "brief review of the record ... [for] clear and grave injustice...." Whittle v. State supra, 210 Ga.App. at 842, 437 S.E.2d 842 (dissent of C.J. Pope). In so doing, the appellate court may foreclose future habeas review of assertions of error on the ground that review of the errors is procedurally defaulted since they could have been raised in the direct appeal. Finally, the appellate court's rationale for taking the action presupposes that the appellate procedural deficiency is due to the negligence, ignorance, or misinterpretation of the law by appellate counsel (see e.g., Adams v. State, 264 Ga. at 72, 440 S.E.2d 639 ("inasmuch as the failure to file the appeal would be considered ineffective assistance of counsel ... we will consider his enumerations of error...."); Brantley v. State, 190 Ga.App. at 643, 379 S.E.2d 627) when, in fact, the criminal defendant may have voluntarily elected to forego a timely appeal following conviction. See Westberry v. State, 257 Ga. 617, 361 S.E.2d 826 (1987).

2. While, as a matter of state and federal constitutional law, a criminal defendant is entitled to effective assistance of counsel in pursuing his appeal of right, the ineffectiveness of appellate counsel can result in the dismissal of an appeal of right without violating the defendant's right to due process as long as the defendant's due process right to an appeal is protected by provision of a " 'remedy for frustrated right of appeal.' " Evitts v. Lucey, supra, 469 U.S. at 399, 105 S.Ct. at 838. Such a remedy has been judicially created in Georgia. In reviewing the denial of a petition for habeas corpus relief in Roberts v. Caldwell, 230 Ga. 223, 224, 196 S.E.2d 444 (1973), this court, after finding that the criminal defendant had been denied appellate counsel, ordered that counsel be appointed and "an appeal ... be filed and prosecuted with benefit of counsel even at this late date." (approximately 20 months after conviction). The "out-of-time appeal" "is granted where the deficiency involves not the trial but the denial of the right of appeal. [Cits.]" Lay v. State, 242 Ga. 225, n. 1, 248 S.E.2d 611 (1978). It serves as a remedy for a habeas corpus petitioner who suffered a constitutional deprivation as well as the criminal defendant who has shown "good and sufficient reason" to a trial court. See e.g., McGuire v. State, 188 Ga.App. 891, 374 S.E.2d 816 (1988); Shirley v. State, 188 Ga.App. 357, 373 S.E.2d 257 (1988); Conway v. State, 183 Ga.App. 573, 359 S.E.2d 438 (1987). ⁵ A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. McAuliffe v. Rutledge, supra; Harper v. State, 154 Ga.App. 550(1), 269 S.E.2d 56 (1980). See also Hunter v. State, 260 Ga. 762, 399 S.E.2d 921 (1991). Since an out-of-time appeal is the remedy for a frustrated right of appeal, we may dismiss an appeal of right for failure to follow appellate procedural prerequisites. Evitts v. Lucey, supra, 469 U.S. at 399, 105 S.Ct. at 837-38. We conclude that dismissal of the appeal is the appropriate and constitutionally permissible course of action when a represented criminal defendant's appeal has procedural deficiencies that deprive the defendant of the right of appellate review of the judgment of conviction. ⁶ The order of dismissal, to be sent to the criminal defendant as well as to appellate counsel with direction to send a copy to the defendant, should point out the appellate deficiency and make the defendant and counsel aware of the option of applying for an out-of-time appeal in the court of conviction. Should, upon the defendant's application for out-of-time appeal, ⁷ it be established to the trial court's satisfaction that the appellate procedural deficiency was due to appellate counsel's failure to perform routine duties, appellant is entitled to...