Boone v. State

868 S.E.2d 202, 313 Ga. 78

• Court: Supreme Court of Georgia
• Decided: January 19, 2022
• Docket: S21A1065
• Status: Published

Opinion

313 Ga. 78 FINAL COPY

S21A1065. BOONE v. THE STATE.

PETERSON, Justice.

Odeirrek Boone pleaded guilty to malice murder and other

offenses and appeals from the denial of his motion for out-of-time

appeal. Boone, proceeding pro se, briefly references his plea

counsel’s failure to consult with him regarding his right to appeal,

but the bulk of his argument is that plea counsel failed to advise him

of his right to withdraw his guilty plea prior to sentencing and, had

he been so advised, he would have withdrawn his guilty plea. And

in attacking on appeal the court’s denial of the motion for out-of-time

appeal, Boone now seeks only an opportunity to move to withdraw

his guilty plea. But a belated motion to withdraw his guilty plea is

not a remedy to which Boone would be entitled even if the court

below had granted his motion for out-of-time appeal. We therefore

affirm.

Boone was charged with malice murder, three counts of felony murder, armed robbery, two counts of aggravated assault, theft by

taking, and possession of a knife during the commission of a felony

in connection with the robbery of a convenience store and the

stabbing death of the store owner, Baik Sung. Boone entered into a

non-negotiated plea agreement after being advised of the trial rights

that he was giving up by pleading guilty, the inability to withdraw

his plea once his sentence was announced, and the availability of his

post-conviction remedies, including his limited right to appeal his

conviction. The issue of Boone’s mental health was raised at

sentencing for purposes of mitigation, but plea counsel confirmed

that Boone had been evaluated and deemed mentally competent.

Plea counsel also noted at sentencing that Boone never expressed a

desire to go to trial and wanted to accept responsibility for his

actions. The trial court entered judgment in June 2012, sentencing

Boone to life in prison with the possibility of parole for malice

murder, a consecutive ten-year sentence for theft by taking, and a

consecutive five-year sentence for possession of a knife during the

2 commission of a felony.1

Almost three years later, in March 2015, Boone filed a pro se

motion for leave to file an out-of-time appeal, and filed a brief in

support in January 2020, arguing that plea counsel was ineffective

by failing to inform him of his rights to withdraw his guilty plea

prior to sentencing and to appeal his convictions. The trial court

denied Boone’s motion without holding a hearing, and we vacated

and remanded for the trial court to conduct a hearing on whether

Boone is entitled to an out-of-time appeal due to ineffective

assistance of plea counsel. See Boone v. State, 310 Ga. 651 (853 SE2d

118) (2020).

On remand, plea counsel testified that she was “fairly sure” she

did not advise Boone about his right to appeal and it was not her

ordinary practice to provide such advice when defendants wanted to

1 The remaining counts were vacated or merged with the malice murder

count. Although it appears that the trial court should have also sentenced Boone for armed robbery, “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” we generally do not correct the error, Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017), and decline to do so here. 3 plead guilty. Plea counsel stated that Boone never asked her to file

an appeal and that she would have done so if asked. When the State

referenced the portion of the plea hearing transcript in which Boone

was advised that he had a limited right of appeal, Boone maintained

that he was unaware that he had a right to file a notice of appeal.

He said that he would have filed an appeal had he been informed of

his right because, during the period of his incarceration, he learned

that there was a reasonable probability that he was suffering from

post-traumatic stress disorder.

The trial court denied Boone’s motion for out-of-time appeal,

finding that he failed to establish that plea counsel was deficient in

failing to advise him of his right to appeal when the record showed

that counsel advised him of the consequences of pleading guilty,

Boone was advised that he had the right to an appeal, Boone

confirmed that he understood that right, and he never asked plea

counsel to file an appeal.

On appeal here, Boone refers to plea counsel’s failure to advise

him of his right to appeal or to withdraw his guilty plea. But Boone

4 makes no real argument that he wanted to appeal and that plea

counsel’s failure frustrated this right. Instead, Boone argues that

plea counsel’s deficiencies resulted in his inability to file a timely

withdrawal of his guilty plea and that, as a result, the trial court

“erred in dismissing [his] Motion [to] Withdraw A Guilty Plea.”

A motion for out-of-time appeal is a judicially created remedy

for a frustrated right of appeal, allowing a defendant to file an

appeal that he otherwise would have pursued but for trial counsel’s

ineffectiveness. See, e.g., Terry-Hall v. State, 312 Ga. 250, 252 (1)

(862 SE2d 110) (2021); Sessions v. State, 293 Ga. 33, 34 (743 SE2d

391) (2013). But as we recently held, a motion for out-of-time appeal,

even if granted, is not a mechanism for pursuing an untimely motion

to withdraw a guilty plea. See Schoicket v. State, 312 Ga. 825, 829-

830 (1) (865 SE2d 170) (2021).

Therefore, even in the unlikely event that Boone’s right to

appeal was frustrated by plea counsel’s alleged deficiencies, a grant

of an out-of-time appeal would not entitle Boone to pursue an

otherwise-untimely motion to withdraw a guilty plea. See Schoicket,

5 312 Ga. at __ (1). Because Boone’s appeal seeks only a remedy that

is unavailable to him, we affirm.

Judgment affirmed. All the Justices concur.

Decided January 19, 2022.

Murder. Fulton Superior Court. Before Judge Barwick.

Odeirrek D. Boone, pro se.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Richard

B. Caplan, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General,

Meghan H. Hill, Assistant Attorney General, for appellee.