Schoicket v. State

CourtSupreme Court of Georgia
Docket NumberS21A0840
Decision Date02 November 2021



No. S21A0840

Supreme Court of Georgia

November 2, 2021


Rebecca Dawn Schoicket was granted an out-of-time appeal to appeal the judgment of conviction entered on her guilty plea. In addition to challenging her sentence on one count, she argues that the out-of-time appeal she was granted meant that the trial court should have granted her motion for leave to file an otherwise untimely motion to withdraw her guilty plea. Schoicket argues that Collier v. State, 307 Ga. 363 (834 S.E.2d 769) (2019), recognized that it would be a "logical extension" of our case law to permit the filing of such a motion, because we have stated that the grant of an out-oftime appeal starts the post-conviction process "anew." Schoicket is correct in that appraisal of our case law, but we decline to extend it to afford her the relief she seeks.


As the special concurrence to Collier explained, this Court ignored contrary precedent and statutes in creating out of whole cloth the motion for out-of-time appeal in the trial court, see id. at 379 (Peterson, J., concurring specially), which is the procedural vehicle that forms the foundation of the case law on which Schoicket relies. And following our decision in Collier, we have retreated from broad statements about the effect of a granted out-of-time appeal in order to avoid dispensing unwarranted windfalls. See Kelly v. State, 311 Ga. 827, 830-831 (860 S.E.2d 740) (2021). A defendant is granted an out-of-time appeal when she shows that her counsel's ineffective assistance frustrated her right to timely appeal by unprofessionally failing to advise her of that right or by failing to file an appeal she desired. Allowing such a grant to then permit the movant to file a motion to withdraw a guilty plea would be an unwarranted windfall with potentially profound consequences for our criminal justice system. Accordingly, we affirm the trial court's denial of Schoicket's motion for leave to pursue such relief. However, because we agree with Schoicket that the sentencing court erred in sentencing as to


one count, we vacate that count and remand for resentencing.

The record shows the following. In October 2016, with the assistance of counsel, Schoicket pleaded guilty to felony murder and other charges in Walton County Superior Court.[1] More than a year later, in December 2017, Schoicket filed a pro se motion for an out-of-time appeal. She subsequently amended that motion and also filed a pro se motion to withdraw her guilty plea. After being appointed new counsel, Schoicket moved for leave to file a motion to withdraw her guilty plea. Following a hearing, the trial court granted Schoicket's motion for an out-of-time appeal, but denied the motion for leave. Despite that ruling, Schoicket's counsel filed a motion to withdraw the guilty plea the day after the hearing. Schoicket now appeals from the trial court's denial of her motion for leave to file a motion to withdraw her plea.[2]


1. Schoicket argues that the trial court erred in denying her motion for leave to file a motion to withdraw her guilty plea because the granted out-of-time appeal permitted her to start the postconviction process "anew" She relies on certain statements in our prior decisions, including one in the special concurrence in Collier that "a logical extension of' prior statements of this Court would be that a granted out-of-time appeal authorizes the filing of a motion to withdraw a guilty plea See Collier, 307 Ga at 380 (Peterson, J, concurring specially). We agree that permitting such a motion would be a logical extension of our precedent that invented certain postconviction remedies. Although we should not have invented those remedies in the first place, we decline to invent additional remedies that might further complicate our post-conviction jurisprudence.

We begin with a little background. The traditional rule is that motions to withdraw a guilty plea must be filed in the term of court in which the defendant was sentenced, see Brooks v. State, 301 Ga. 748, 751 (2) (804 S.E.2d 1) (2017), the time period under the common law during which trial courts could generally reconsider their


judgments, see Moon v. State, 287 Ga. 304, 305-306 (696 S.E.2d 55) (2010) (Nahmias, J., concurring). This well-established rule is merely the application of a bedrock common-law principle that applies equally to other criminal motions and in civil cases. See Gray v. State, 310 Ga. 259, 263 (3) (850 S.E.2d 36) (2020) (common-law rule, which Georgia courts have long-applied, provides that "in absence of a statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term" (citation, punctuation, and emphasis omitted)); see also Smith v. State, 298 Ga. 487, 487-488 (782 S.E.2d 17) (2016) (rule applicable even if motion construed as motion to withdraw guilty plea or motion for arrest of judgment); Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 S.E.2d 453) (2011) (applying rule to second divorce decree entered after expiration of term of court in which first decree was entered). This common law rule, as applied to motions to withdraw guilty pleas, remains in force today. See Gray, 310 Ga. at 262 (2) (common-law rules remain in


effect "except where they have changed by express statutory enactment or by necessary implication") (citation and punctuation omitted).

When a defendant seeks to withdraw her guilty plea after the expiration of that term of court, she must pursue such relief through habeas corpus proceedings. See Davis v. State, 274 Ga. 865, 865 (561 S.E.2d 119) (2002). Applying this traditional rule, Schoicket's motion to withdraw her guilty plea, as a stand-alone motion, would be barred as untimely because it is undisputed that she sought to file it more than a year after the term of court in which the judgment of conviction was entered. See OCGA § 15-6-3 (2) (B) (the terms of court for the Superior Court of Walton County commence on the "[f]irst and second Mondays in February, May, August, and November").

Schoicket argues that she is permitted to file her otherwise untimely motion because the grant of an out-of-time appeal essentially restarted the post-conviction process. Her arguments are rooted in statements made in Ponder v. State, 260 Ga. 840 (400 S.E.2d 922) (1991), and Maxwell v. State, 262 Ga. 541 (422 S.E.2d 543)(1992).


But we already have begun to trim back those broad statements.

Ponder is the primary case for expanding the record upon the grant of an out-of-time appeal in order to consider previously unraised claims. There, we held that a defendant who is granted an out-of-time appeal should be allowed to file a motion for new trial in order to raise ineffectiveness claims against trial counsel for the first time. See 260 Ga. at 840-841 (1). This Court explained that the grant of an out-of-time appeal

should be seen as permission to pursue the postconviction remedies which would be available at the same time as a direct appeal . . . and constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial.

Id. at 841 (1). We note, however, that even by its own terms, Ponder authorized only "appropriate" post-conviction remedies.

In Maxwell, we extended Ponder to allow a defendant to pursue a second motion for new trial with appellate counsel despite the fact that the defendant's first motion for new trial, filed by trial counsel, had been denied. See Maxwell, 262 Ga. at 542-543 (3), disapproved


by Kelly, 311 Ga. at 830-831. We stated in Maxwell that the second motion for new trial was permitted because the grant of an out-oftime appeal "start[s] the post-conviction process anew." Id. at 542543 (3). Allowing a second motion for new trial in Maxwell was an "appropriate" remedy because trial counsel could not have been expected to raise ineffectiveness claims against himself in the first motion for new trial. See Garland v. State, 283 Ga. 201, 203 (657 S.E.2d 842) (2008); see also Hood v. State, 282 Ga. 462, 463 (651 S.E.2d 88) (2007) ("[A] lawyer may not ethically present a claim that [the lawyer] provided a client with ineffective assistance of counsel[.]"). We readily acknowledge that our statements in Ponder and Maxwell would naturally lead to the conclusion that, upon the grant of an out-of-time appeal, a defendant who pleaded guilty should be able to file a motion to withdraw that plea, just as a defendant who went to trial can file a motion for new trial.[3]


But in Kelly we retreated from what Ponder and Maxwell said, holding that the grant of an out-of-time appeal does not actually start the post-conviction process "anew"; instead, it merely "restore[s] the defendant to the position he occupied at the time he forfeited his right to appeal (or seek other post-conviction relief)." Kelly, 311 Ga. at 830-831. And as Justice Warren recognized in Kelly, and as Ponder's core holding teaches us, remedies for ineffective assistance of counsel should be tailored to the particular violation. See Kelly, 311 Ga. at 833 (Warren, J., concurring specially) ("[T]he remedy this Court provided in Maxwell was too broad because it exceeded that which was required to remedy the deprivation of Maxwell's appellate rights because of an alleged constitutional violation (i.e., ineffective assistance of counsel)."); Ponder, 260 Ga. at 842 (2) (allowing motion for new trial to be filed (2019) (affirming denial of timely motion to withdraw guilty plea and rejecting claim for remand based on plea counsel's alleged ineffectiveness, as issue already had been adjudicated by the trial court). But this case presents only the question of what remedy is available through the procedural vehicle of a granted motion for...

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