Smith v. State
| Decision Date | 22 February 2022 |
| Docket Number | A22A0181 |
| Citation | 362 Ga.App. 734,870 S.E.2d 58 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Erik Smith, for Appellant.
Louie Craig Fraser, Dublin, Leslie Loraine Ray, for Appellee.
Proceeding pro se, Erik Smith appeals from the trial court's order denying his motion for an out-of-time appeal. For the reasons set forth below, we vacate the trial court's order and remand for the court to apply the correct legal analysis in addressing Smith's claim that his right to an appeal was frustrated by the ineffective assistance he received from his plea counsel.
The record shows that Smith was indicted on two counts of enticing a child for indecent purposes, two counts of aggravated child molestation, four counts of child molestation, aggravated sexual battery, incest, and giving false information to a law enforcement officer. On May 14, 2019, Smith entered a negotiated plea of guilty to three counts of the indictment: enticing a child for indecent purposes, child molestation, and incest. Per the plea agreement, the trial court dismissed the remaining counts. At the conclusion of the plea hearing, Smith expressly waived his right to withdraw his guilty plea and agreed to proceed with sentencing on a subsequent date.
On June 12, 2019, the trial court conducted the sentencing hearing. Under the terms of the plea agreement, Smith's total sentence on the three counts to which he pled guilty would be capped at 40 years, to serve 25 years in confinement and the remainder on probation, but Smith could request that the trial court impose a lesser sentence. At the sentencing hearing, the State requested that the trial court impose the maximum possible sentence under the capped negotiated plea of 40 years, to serve 25 years in confinement and the remainder on probation, while Smith requested that the court impose a 10-year sentence. After hearing from the parties and the victim, the trial court sentenced Smith to the maximum sentence under the plea agreement, as requested by the State. At the conclusion of the sentencing hearing, the trial court informed Smith that he had 30 days "to file any motions for post-judgment relief" and that there was a 4-year statute of limitation for filing a habeas corpus petition, but the court did not address the possibility of filing an appeal from the judgment of conviction and sentence entered on the guilty plea or the time period for doing so.
On February 18, 2021, Smith filed a pro se motion for an out-of-time appeal from the judgment of conviction and sentence entered on his guilty plea, which he later amended. In his motion, as amended, Smith contended, among other things, that his appeal from the judgment had been frustrated by the ineffective assistance he received from his plea counsel.
On June 30, 2021, the trial court conducted an evidentiary hearing on Smith's motion for an out-of-time appeal. At the hearing, Smith asserted that after he was sentenced, he told his plea counsel that he wanted to appeal, but counsel never filed a notice of appeal. In contrast, plea counsel testified that he did not recall Smith asking him to file an appeal on his behalf. According to plea counsel, when he spoke with Smith after the sentencing hearing, Smith expressed dissatisfaction with his sentence and wanted it lowered, but counsel did not believe that there was a viable procedural mechanism available for challenging only the sentence, given that, in his estimation, the sentence was neither void nor otherwise unlawful.
Following the evidentiary hearing, the trial court entered its order denying Smith's motion for an out-of-time appeal, concluding that Smith had failed to establish ineffective assistance of his plea counsel. In the "Conclusions of Law" section of its order, the trial court stated:
In considering an out of time appeal from a negotiated guilty plea, a defendant must show he lost his right to appeal as a result of counsel's deficient performance and that but for counsel's deficient performance he would have timely appealed. Davis v. State , 310 Ga. 547, 852 S.E.2d 517 (2020). Based upon the evidence, the Court cannot find the Defendant asked for an appeal or had any ground for appeal after sentencing. Defendant's concern was only that his sentence be less than the sentence given, which was the cap for the negotiated plea. Defendant made a knowing and intelligent plea with the knowledge and understanding of the consequences of his plea. Under these circumstances, the Court cannot find trial counsel was deficient in any way, and he did not breach his professional duty under a totality of the circumstances. There is no evidence trial counsel improperly induced the Defendant to enter a guilty plea. However, assuming the trial counsel was deficient, the Court cannot find any grounds for an appeal or that the Defendant wanted to appeal. The Defendant's concern was for a lower sentence. The sentence in the case was exactly the cap set for the negotiated plea, and it cannot be said this sentence was improper or not authorized. The record shows that trial counsel investigated the case, and the Defendant affirmatively wanted to enter a plea and not go to trial.
On appeal, Smith contends that the trial court erred in concluding that he failed to establish ineffective assistance of his plea counsel and thus in denying his motion for an out-of-time appeal. According to Smith, his plea counsel failed to adequately consult with him about an appeal after his sentencing and disregarded his request that an appeal be filed.
"We review a trial court's denial of a motion for an out-of-time appeal for an abuse of discretion." Burley v. State , 308 Ga. 650, 651, 842 S.E.2d 851 (2020). Relying on Roe v. Flores-Ortega , 528 U. S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court of Georgia has set out the proper legal analysis for addressing a defendant's motion for an out-of-time appeal from the judgment of conviction and sentence entered on his guilty plea, where the defendant contends that his failure to file a timely appeal was the result of ineffective assistance of counsel. Specifically, our Supreme Court has explained:
A criminal defendant is entitled to an out-of-time appeal if his counsel's constitutionally deficient performance deprived him of an appeal of right that he otherwise would have pursued.... If the constitutional violation alleged by the defendant is ineffective assistance of counsel in providing advice about or acting upon an appeal of right, that violation is reviewed under the familiar standard of Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet his burden of proving that counsel's ineffectiveness deprived him of his right to an appeal, the criminal defendant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant.... This standard applies whether a defendant seeks an out-of-time appeal from a final judgment of conviction entered following a trial or following a guilty plea.
(Citations and punctuation omitted.) Collier v. State , 307 Ga. 363, 364-366 (1), 834 S.E.2d 769 (2019). See Ringold v. State , 304 Ga. 875, 879, 823 S.E.2d 342 (2019), overruled in part on other grounds by Collier , 307 Ga. at 366-367 (1), 834 S.E.2d 769.
As to the deficiency prong of the Strickland test, a court first must determine "whether counsel consulted with the defendant about an appeal – that is, whether counsel advised the defendant about the advantages and disadvantages of taking an appeal, and made a reasonable effort to discover the defendant's wishes." (Citation and punctuation omitted.) Ringold , 304 Ga. at 879, 823 S.E.2d 342. If counsel adequately consulted with the defendant about an appeal, counsel performed deficiently "only if he failed to follow the defendant's express directions with respect to an appeal." (Citation and punctuation omitted.) Id.
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