by Douglas Ankney

In a landmark ruling, the Supreme Court of Georgia completely overhauled the state’s jurisprudence governing appeals of cases that resulted in guilty pleas and governing out-of-time appeals, overturning more than 75 prior decisions.

In September 2009, Cordalero Collier pleaded guilty to felony murder, and the court sentenced him to life in prison.

On October 1, 2018, Collier filed a pro se motion for an out-of-time appeal. The trial court summarily denied the motion. Collier appealed, arguing the court erred in denying his motion without conducting a hearing.

The Supreme Court of Georgia observed that a criminal defendant is entitled to an out-of-time appeal if he proves “an excuse of constitutional magnitude for failing to file a timely direct appeal, which usually is done by showing that the delay was caused by his trial counsel’s ineffective assistance in providing advice about or acting upon an appeal.” Bailey v. State, 828 S.E.2d 300 (Ga. 2019). A defendant who does not allege and prove such an excuse for failing to file a timely direct appeal is not entitled to an out-of-time appeal. Id.

To prove that counsel’s ineffectiveness deprived him of his right to an appeal, the 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.” Strickland v. Washington, 466 U.S. 668 (1984). With regard to the first prong, the defendant must show that his appeal of right was lost as a consequence of his counsel’s deficient performance, which requires the trial court to make a factual inquiry into those allegations. Simmons v. State, 579 S.E.2d 735 (Ga. 2003). With regard to the second prong of Strickland, the defendant need only demonstrate a reasonable probability that, if not for counsel’s deficient performance, he would have timely appealed. Ringold v. State, 823 S.E.2d 342 (Ga. 2019).

The defendant is not required to show that he would have prevailed in a timely appeal, nor is he required to specify the points he would raise were his right to appeal reinstated because “it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000). This standard applies whether a defendant seeks an out-of-time appeal from a final judgment of conviction following a trial or following a guilty plea. Garza v. Idaho, 139 S. Ct. 738 (2019).

The Georgia Supreme Court then recognized that it had “long erroneously held that a defendant seeking an out-of-time appeal directly from a judgment entered on a guilty plea must satisfy the prejudice component of Strickland standard by showing that his appeal would have had merit.”

And the Court had also held that “if the defendant cannot show that his appeal would have had merit, the trial court may forgo an inquiry into whether counsel’s performance with respect to the appeal was constitutionally deficient.”

Because the Court’s prior jurisprudence conflicted with U.S. Supreme Court precedent, those earlier decisions were overruled. The Court then went on to overrule “a peculiar line of cases where we have held that a criminal defendant’s right to appeal directly from a judgment entered on a guilty plea is qualified in scope; that is, the right to appeal is limited to those cases in which the issue on appeal can be ‘resolved by facts appearing in the record.’”

The Court observed that this line of cases had its genesis in Morrow v. State, 463 S.E.2d 472 (Ga. 1995). The bare majority in Morrow held that “an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.” But in the instant case, the Court ruled that the holding in Morris is in direct conflict with OCGA § 5-6-33(a)(1), which states a criminal defendant “may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.”

Nothing in the statute makes a distinction between judgments entered on guilty pleas versus judgments on a verdict after trial. (The appendix to this decision cites more than 75 decisions expressly overruled, and the cited cases are not an exhaustive list.)

The Court also announced that when a defendant seeks an out-of-time appeal via a motion brought in trial court, the State may raise the defense of prejudicial delay. Prejudicial delay, commonly referred to as laches, is often applied “in obedience and in analogy to the statutes of limitations, in cases where it would not be unjust and inequitable to do so.” Grant v. Hart, 14 S.E.2d 860 (Ga. 1941). But laches requires more than the mere passing of time. When the State asserts prejudicial delay as a defense to a motion seeking an out-of-time appeal, the trial court can use the criteria provided in the Habeas Corpus Act in determining the merits of the State’s defense.

Because of the case law overruled in this decision, Collier had not received a full and fair opportunity to pursue his motion for an out-of-time appeal in the trial court, the State had not had fair opportunity to raise its defenses, and the trial court did not have benefit of the instant decision to guide its consideration.

Accordingly, the Court vacated the order denying Collier’s motion for an out-of-time appeal and remanded the case to the trial court for proceedings consistent with its opinion. See: Collier v. State, 2019 Ga. LEXIS 708 (2019).

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