Summary
In Grantham, our Supreme Court relied on Caine for the proposition that a direct appeal is not available when a defendant does not contend that the trial court failed to follow established procedures in accepting his guilty plea, but instead claims that his plea was involuntary and his counsel was ineffective.
Summary of this case from Rittenberry v. StateOpinion
For Majority Opinion see, 267 Ga. 635, 481 S.E.2d 219.
[267 Ga. 636] SEARS, Justice, dissenting.
I respectfully dissent. Grantham appeals from the denial of his request for permission to file an out-of-time appeal. Grantham, if he is allowed an out-of-time appeal, seeks to raise as an issue the voluntariness of his guilty plea due to alleged coercion by the prosecutor. Under the case law, Grantham would be entitled to an out-of-time appeal only if (1) a timely direct appeal was not filed due to the ineffective assistance of counsel, and (2) if the issue on appeal can be resolved by reference to the facts appearing in the record, "including the transcript of his guilty plea hearing." The majority rejects Grantham's appeal because it reasons that neither of these determinations can be made without the benefit of a post-plea hearing.
Smith v. The State, 266 Ga. 687, 470 S.E.2d 436 (1996).
Op. at 636, 481 S.E.2d 219.
Regarding the first criteria--the effectiveness, or not, of counsel--this Court has held that the disposition of a motion to file an out-of-time appeal requires the finder of fact to determine whether the ultimate responsibility for the failure to file an out-of-time appeal rests with the appellant or with counsel. Thus, contrary to the majority opinion, that particular issue is intended to be resolved by the trial court in the context of a post-plea hearing, when ruling on the motion for out-of-time appeal. Under the majority's ruling that the issue of counsel's effectiveness must be capable of being resolved [267 Ga. 637] on the record, no movant will ever be able to show that the failure to file a timely appeal was due to his counsel's ineptitude. In order to make this showing, a movant must show either that (1) his lawyer did not inform him of his rights of appeal, and hence he could not exercise them, or (2) he was informed of his rights of appeal, and told his lawyer he wanted to exercise those rights, but his lawyer nonetheless failed to file an appeal. The Uniform Rules, however, do not require trial courts, when accepting guilty pleas, to inform defendants of their rights of appeal on the record, and as a general practice, attorneys do not inform their clients of their rights of appeal (or fail to do so) on the record, either. Yet the majority opinion states that unless the issue of whether the failure to file a timely appeal was due to ineffective assistance can be resolved on the record, the out-of-time-appeal must be denied. Because this issue is incapable of being resolved on the record, the majority has precluded any possibility of making of this showing.
Bell v. Hopper, 237 Ga. 810, 229 S.E.2d 658 (1976). See Evans v. The State, 198 Ga.App. 537, 539, 402 S.E.2d 131 (1991); Cannon v. The State, 175 Ga.App. 741, 334 S.E.2d 342 (1985) (Carley, J.).
A lawyer who does not inform his client of his right to appeal a criminal conviction is ineffective. Bell, supra.
Furthermore, there is no support in relevant precedent for the majority's assertion that a trial court may not reach issues regarding the effectiveness of counsel unless it first determines that the issue sought to be raised on appeal can be resolved by reference to the record. To the contrary, this Court's ruling in Bell v. Hopper, discussed above, indicates the opposite. In fact, for an appellate court to effectively and efficiently review an appeal from an order denying a motion for out-of-time appeal, the trial court must initially determine whether counsel's ineffectiveness precluded a direct appeal. To illustrate--suppose a trial court, in accordance with the majority opinion, rules that an issue sought to be raised in an out-of-time appeal cannot be decided from the record, and denies the motion to file such an appeal. That decision will then be appealed. If the appellate court determines that the trial court's decision was erroneous, it cannot make any dispositive ruling because the issue of the effectiveness of counsel has not been resolved by the finder of fact, as it must be. Thus, the appellate court would have to remand the matter for a determination of effectiveness, and another appeal would be taken from that ruling. This is hardly a model of judicial efficiency.
Moreover, having granted a right of appeal to all convicted criminal defendants, the State is forbidden by due process and equal protection concerns from arbitrarily excluding any party from exercising that right. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985); Griffin v. Illinois, 351 U.S. 12, 17-20, 76 S.Ct. 585, 589-91, 100 L.Ed. 891 (1956). Due process and equal protection require that, once the State has created a right of appeal, it must "offer each defendant a fair opportunity to obtain adjudication on the merits of his appeal." Evitts, 469 U.S. at 405, 105 S.Ct. at 841. By ruling that the effectiveness of counsel need not be addressed unless the issue to be raised can be resolved on the record, the majority opinion gives short shrift to these constitutional mandates.
[267 Ga. 638] Regarding the second criteria to be addressed in resolving a motion for permission to file an out of time appeal--whether the issue sought to be raised can be resolved by reference to the record--the majority opinion holds that "the issues of the voluntariness of Grantham's pleas ... can only be developed in the context of a post-plea hearing." However, Uniform Superior Court Rule 33.7 places an affirmative duty on the trial court to accept a guilty plea only after "first determining on the record, that the plea is voluntary .... and whether ... any force or threats were used to obtain the plea." Thus, while the opinion indicates that trial courts have no affirmative duty to create a record establishing that a guilty plea is voluntarily entered without coercion, the Superior Court Rules create that exact duty. In fact, my reading of Superior Court Rules 33.7 through 33.11 leads me to conclude that if the voluntariness of a guilty plea cannot be determined from the facts appearing in the record, then nothing can be.
Op. at 636, 481 S.E.2d 219.
For these reasons, as well as those stated in my dissent to the majority opinion in Morrow v. The State, I dissent. I am authorized to state that Chief Justice BENHAM and Presiding Justice FLETCHER join in this dissent.
266 Ga. 3, 463 S.E.2d 472 (1995).