Cook v. State
This text of 870 S.E.2d 758 (Cook v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
313 Ga. 471 FINAL COPY
S21A1270. COOK v. THE STATE.
WARREN, Justice.
When a convicted criminal defendant is unconstitutionally
deprived of an appeal of right, which typically occurs because her
counsel provided ineffective assistance in failing to file a timely
appeal, she is entitled to an untimely or “out-of-time” appeal. In this
case, we examine the difficult question of whether this Court should
overrule our precedent allowing a criminal defendant who alleges
that she was unconstitutionally deprived of her appeal as of right to
file a motion for out-of-time appeal in the trial court, as opposed to
seeking a writ of habeas corpus as an exclusive remedy. After
explaining the underpinnings of our precedent and engaging in an
exhaustive stare decisis analysis, we conclude that the trial court
out-of-time appeal procedure is not a legally cognizable vehicle for a
convicted defendant to seek relief for alleged constitutional violations.
***
In the Habeas Corpus Act of 1967, now codified as OCGA § 9-
14-40 et seq., the General Assembly created a post-conviction
procedure for defendants to raise that—and any other—
constitutional claim. Defendants in Georgia began doing so, and in
1974 this Court held in Neal v. State, 232 Ga. 96 (205 SE2d 284)
(1974), that a defendant could not seek an out-of-time appeal from
his conviction by motion in the trial court, explaining that he must
file a petition for a writ of habeas corpus to seek relief for the “denial
of the right of appeal or of the effective assistance of counsel on
appeal” and affirming the trial court’s order dismissing the
defendant’s motion. Id. at 96.
Nevertheless, the following year, without mention of Neal or
the Habeas Corpus Act, this Court began to review appeals of trial
court orders denying motions for out-of-time appeals on the merits
and appeals following orders by trial courts granting out-of-time
appeals. See King v. State, 233 Ga. 630, 630-631 (212 SE2d 807)
2 (1975); Furgerson v. State, 234 Ga. 594, 595-596 (216 SE2d 845)
(1975). Those cases did not constitute precedents on the proper way
to seek an out-of-time appeal, but two decades later, in Rowland v.
State, 264 Ga. 872 (452 SE2d 756) (1995), the Court for the first time
held—without citing any applicable legal authority and without
acknowledging or overruling the contrary holding in Neal—that a
convicted defendant could seek an out-of-time appeal either in the
trial court or in habeas corpus. See id. at 875. Trial courts thus
continued to entertain motions for out-of-time appeal, and appellate
courts continued to decide appeals following the rulings on such
motions for many more years.
This Court did not examine how the trial court out-of-time
appeal procedure had been created and evolved; the inconsistencies
that had developed between that procedure and other areas of
established Georgia law; or how the procedure had become an
unwitting breeding ground for legal errors made by both appellate
and trial courts until we decided Collier v. State, 307 Ga. 363 (834
SE2d 769) (2019), in 2019. Collier raised the profile of the trial court
3 out-of-time appeal process, and given that the only way rules have
been established for this judicially created procedure is by judges
making them on a case-by-case basis, we have since seen additional
cases that have called upon this Court to create the rules and
parameters of the trial court out-of-time appeal procedure.
In Collier, and in a case that soon followed, Schoicket v. State,
312 Ga. 825 (865 SE2d 170) (2021), this Court determined that our
precedent endorsing the trial court out-of-time appeal procedure as
an alternative to habeas corpus had no valid legal foundation. See
Collier, 307 Ga. at 371-373, 376; id. at 379-382 (Peterson, J.,
concurring specially); Schoicket, 312 Ga. at 825. The question that
follows is whether to maintain that precedent as a matter of stare
decisis. We asked the parties in this case, as well as amicus curiae
for major participants in the criminal justice system, to address that
question. Based on their input and our extensive consideration of
the issue, we conclude that stare decisis considerations do not weigh
against overruling our precedent that created the trial court out-of-
time appeal procedure.
4 This Court has consistently held that the most important stare
decisis factor is the soundness of the reasoning of the precedent at
issue, and everyone involved in this case agrees that the reasoning
supporting our precedent allowing motions for out-of-time appeal in
trial courts—to the extent there has been any reasoning at all—is
wholly unsound. There also is agreement that the precedent is not
ancient and that it does not implicate traditional reliance interests.
With respect to the fourth stare decisis factor that this Court
typically considers—workability—we conclude that our precedent
creating the trial court out-of-time appeal procedure has a
fundamental and insurmountable workability problem, because it
will perpetually require this Court to fill in the details of the
procedure we created. Judicial administration of habeas corpus,
which everyone agrees is an appropriate procedure for seeking an
out-of-time appeal when a convicted criminal defendant is
unconstitutionally deprived of an appeal of right, does not require
judges to make up the rules that regulate that process because the
General Assembly has established those rules by statute. But as
5 Collier and Schoicket demonstrate, when it comes to the trial court
out-of-time appeal procedural vehicle this Court invented, we are
called upon to make up the rules that govern that procedure. And
each time we do, we are required to step out of our proper judicial
role and assume the role of lawmakers—which is the work of the
General Assembly.
The dissent has no real answer to this problem. It also
undervalues the unsoundness of our precedent and overstates the
ways in which the procedure we created may work better than the
habeas procedure that is legally proper. In the end, the dissent
seeks to overcome our customary stare decisis analysis with a focus
on the “entrenchment” of our precedent—a concept we have
considered before in stare decisis analyses, but never to outweigh all
other stare decisis factors and perpetuate an unworkable and wholly
unsound precedent, as the dissent proposes here.
For these reasons, which are explained more fully below, we
conclude that principles of stare decisis do not require us to maintain
our unsound precedent creating or endorsing the trial court out-of-
6 time appeal procedure, and we therefore overrule Rowland and its
handful of progeny. We also disapprove King, Furgerson, and other
decisions to the extent that they allowed out-of-time appeal claims
to be litigated in trial courts without addressing the propriety of that
procedure. Applying our holding to this case, we vacate the trial
court’s order denying Cadedra Lynn Cook’s motion for an out-of-time
appeal, and we remand the case to the trial court with direction that
the motion be dismissed.
1.
Free access — add to your briefcase to read the full text and ask questions with AI
313 Ga. 471 FINAL COPY
S21A1270. COOK v. THE STATE.
WARREN, Justice.
When a convicted criminal defendant is unconstitutionally
deprived of an appeal of right, which typically occurs because her
counsel provided ineffective assistance in failing to file a timely
appeal, she is entitled to an untimely or “out-of-time” appeal. In this
case, we examine the difficult question of whether this Court should
overrule our precedent allowing a criminal defendant who alleges
that she was unconstitutionally deprived of her appeal as of right to
file a motion for out-of-time appeal in the trial court, as opposed to
seeking a writ of habeas corpus as an exclusive remedy. After
explaining the underpinnings of our precedent and engaging in an
exhaustive stare decisis analysis, we conclude that the trial court
out-of-time appeal procedure is not a legally cognizable vehicle for a
convicted defendant to seek relief for alleged constitutional violations.
***
In the Habeas Corpus Act of 1967, now codified as OCGA § 9-
14-40 et seq., the General Assembly created a post-conviction
procedure for defendants to raise that—and any other—
constitutional claim. Defendants in Georgia began doing so, and in
1974 this Court held in Neal v. State, 232 Ga. 96 (205 SE2d 284)
(1974), that a defendant could not seek an out-of-time appeal from
his conviction by motion in the trial court, explaining that he must
file a petition for a writ of habeas corpus to seek relief for the “denial
of the right of appeal or of the effective assistance of counsel on
appeal” and affirming the trial court’s order dismissing the
defendant’s motion. Id. at 96.
Nevertheless, the following year, without mention of Neal or
the Habeas Corpus Act, this Court began to review appeals of trial
court orders denying motions for out-of-time appeals on the merits
and appeals following orders by trial courts granting out-of-time
appeals. See King v. State, 233 Ga. 630, 630-631 (212 SE2d 807)
2 (1975); Furgerson v. State, 234 Ga. 594, 595-596 (216 SE2d 845)
(1975). Those cases did not constitute precedents on the proper way
to seek an out-of-time appeal, but two decades later, in Rowland v.
State, 264 Ga. 872 (452 SE2d 756) (1995), the Court for the first time
held—without citing any applicable legal authority and without
acknowledging or overruling the contrary holding in Neal—that a
convicted defendant could seek an out-of-time appeal either in the
trial court or in habeas corpus. See id. at 875. Trial courts thus
continued to entertain motions for out-of-time appeal, and appellate
courts continued to decide appeals following the rulings on such
motions for many more years.
This Court did not examine how the trial court out-of-time
appeal procedure had been created and evolved; the inconsistencies
that had developed between that procedure and other areas of
established Georgia law; or how the procedure had become an
unwitting breeding ground for legal errors made by both appellate
and trial courts until we decided Collier v. State, 307 Ga. 363 (834
SE2d 769) (2019), in 2019. Collier raised the profile of the trial court
3 out-of-time appeal process, and given that the only way rules have
been established for this judicially created procedure is by judges
making them on a case-by-case basis, we have since seen additional
cases that have called upon this Court to create the rules and
parameters of the trial court out-of-time appeal procedure.
In Collier, and in a case that soon followed, Schoicket v. State,
312 Ga. 825 (865 SE2d 170) (2021), this Court determined that our
precedent endorsing the trial court out-of-time appeal procedure as
an alternative to habeas corpus had no valid legal foundation. See
Collier, 307 Ga. at 371-373, 376; id. at 379-382 (Peterson, J.,
concurring specially); Schoicket, 312 Ga. at 825. The question that
follows is whether to maintain that precedent as a matter of stare
decisis. We asked the parties in this case, as well as amicus curiae
for major participants in the criminal justice system, to address that
question. Based on their input and our extensive consideration of
the issue, we conclude that stare decisis considerations do not weigh
against overruling our precedent that created the trial court out-of-
time appeal procedure.
4 This Court has consistently held that the most important stare
decisis factor is the soundness of the reasoning of the precedent at
issue, and everyone involved in this case agrees that the reasoning
supporting our precedent allowing motions for out-of-time appeal in
trial courts—to the extent there has been any reasoning at all—is
wholly unsound. There also is agreement that the precedent is not
ancient and that it does not implicate traditional reliance interests.
With respect to the fourth stare decisis factor that this Court
typically considers—workability—we conclude that our precedent
creating the trial court out-of-time appeal procedure has a
fundamental and insurmountable workability problem, because it
will perpetually require this Court to fill in the details of the
procedure we created. Judicial administration of habeas corpus,
which everyone agrees is an appropriate procedure for seeking an
out-of-time appeal when a convicted criminal defendant is
unconstitutionally deprived of an appeal of right, does not require
judges to make up the rules that regulate that process because the
General Assembly has established those rules by statute. But as
5 Collier and Schoicket demonstrate, when it comes to the trial court
out-of-time appeal procedural vehicle this Court invented, we are
called upon to make up the rules that govern that procedure. And
each time we do, we are required to step out of our proper judicial
role and assume the role of lawmakers—which is the work of the
General Assembly.
The dissent has no real answer to this problem. It also
undervalues the unsoundness of our precedent and overstates the
ways in which the procedure we created may work better than the
habeas procedure that is legally proper. In the end, the dissent
seeks to overcome our customary stare decisis analysis with a focus
on the “entrenchment” of our precedent—a concept we have
considered before in stare decisis analyses, but never to outweigh all
other stare decisis factors and perpetuate an unworkable and wholly
unsound precedent, as the dissent proposes here.
For these reasons, which are explained more fully below, we
conclude that principles of stare decisis do not require us to maintain
our unsound precedent creating or endorsing the trial court out-of-
6 time appeal procedure, and we therefore overrule Rowland and its
handful of progeny. We also disapprove King, Furgerson, and other
decisions to the extent that they allowed out-of-time appeal claims
to be litigated in trial courts without addressing the propriety of that
procedure. Applying our holding to this case, we vacate the trial
court’s order denying Cadedra Lynn Cook’s motion for an out-of-time
appeal, and we remand the case to the trial court with direction that
the motion be dismissed.
1. Procedural Posture of Cook’s Appeal
In November 2013, Cook entered a negotiated plea of guilty to
charges of felony murder and armed robbery, based on which the
trial court entered a judgment of conviction and sentenced her to life
in prison with the possibility of parole for felony murder and a
concurrent 20-year term in prison for armed robbery.1 She did not
1 Cook’s co-indictee, Eddie Clark, pleaded guilty to felony murder, armed
robbery, and obstruction of a law enforcement officer in February 2014. In 2020, we vacated a trial court order denying his motion for out-of-time appeal and remanded the case for an evidentiary hearing to “determine whether plea counsel’s ineffective assistance was responsible for Clark’s failure to pursue a timely appeal.” Clark v. State, 310 Ga. 489, 491 (852 SE2d 522) (2020) (citation
7 file a timely appeal, but more than six years later, she filed a motion
for out-of-time appeal in the trial court, contending that she was
deprived of her right to appeal because of her plea counsel’s
ineffective assistance.2 After a hearing, the trial court denied Cook’s
motion for out-of-time appeal on the merits, and she timely appealed
that decision. Cook and the State filed appellate briefs making
arguments related to the merits of Cook’s motion. But in light of
this Court’s recent examinations of the propriety of motions for out-
of-time appeals in trial courts and related issues in Collier, Kelly v.
State, 311 Ga. 827 (860 SE2d 740) (2021), and Schoicket, we
requested and received supplemental briefing on the following two
questions:3
and punctuation omitted).
2 As part of her motion for out-of-time appeal, Cook also sought an out-
of-time motion to withdraw her guilty plea. But we recently held that “a granted motion for out-of-time appeal does not confer a right to file an otherwise-untimely motion to withdraw a guilty plea.” Schoicket, 312 Ga. at 833.
3 We appreciate the supplemental briefs filed on behalf of the parties by
appellant’s counsel, the District Attorney, and the Attorney General. We are also grateful for the thoughtful briefs filed by amici curiae the Georgia
8 Should this Court reconsider whether a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel’s alleged ineffective assistance under Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), be permitted to seek a remedy for that alleged constitutional violation by filing a motion for out-of-time appeal in the trial court, as opposed to filing, as her exclusive remedy, a petition for writ of habeas corpus? How do considerations of stare decisis apply in this analysis?
2. Legal Background
(a) The Judicial Creation and Propagation of the Motion for Out-of-Time Appeal in Georgia Trial Courts
In 1965, the United States Supreme Court granted certiorari
to consider “whether the Fourteenth Amendment [to the United
States Constitution] requires that the States afford state prisoners
some adequate corrective process for the hearing and determination
of claims of violation of federal constitutional guarantees.” Case v.
Nebraska, 381 U.S. 336, 337 (85 SCt 1486, 14 LE2d 422) (1965). But
because the Nebraska legislature enacted, during the pendency of
that case, a statutory post-conviction procedure that “provide[d] for
Association of Criminal Defense Lawyers (“GACDL”) and the Prosecuting Attorneys’ Council of Georgia (“PAC”). 9 a hearing of petitions . . . alleging denial of federal constitutional
rights,” the Supreme Court did not address the merits of the
question presented in Case and instead vacated the judgment below.
Id. However, in the wake of two concurring opinions in Case that
expressed approval of states providing statutory post-conviction
procedures and hope that such procedures would be broadly adopted
in other states, see id. at 337-340 (Clark, J., concurring), 340-347
(Brennan, J., concurring), many states enacted statutory post-
conviction procedures, including but not limited to state habeas
corpus procedures. See 7 Wayne R. LaFave et al., Criminal
Procedure § 28.11 (a) (4th ed., Nov. 2021 Update) (the states
“responded en masse to the urgings of” the concurring Justices “and
others, and today ‘in each of the 50 states, the principal
postconviction remedy may be used, at a minimum, to raise claims
that the conviction is void for lack of jurisdiction or was obtained in
violation of a constitutional right.’”) (quoting 1 Donald E. Wilkes,
Federal and State Postconviction Remedies and Relief Handbook
with Forms 7 (2014-2015 ed.)).
10 Among those states was Georgia, which in 1967 enacted the
Habeas Corpus Act. See Ga. L. 1967, p. 835 (codified as amended at
OCGA § 9-14-40 et seq.). The Act, which is codified as Article 2 of
Chapter 14 of Title 9, applies to convicted defendants and says that
“this article provides the exclusive procedure for seeking a writ of
habeas corpus for persons whose liberty is being restrained by virtue
of a sentence imposed against them by a state court of record.”
OCGA § 9-14-41. OCGA § 9-14-42 (a) further specifies that any such
person “who asserts that in the proceedings which resulted in his
conviction there was a substantial denial of his rights under the
Constitution of the United States or of this state may institute a
proceeding under this article.”
About two years after the enactment of Georgia’s Habeas
Corpus Act, the United States Supreme Court held, in a federal case
in which counsel failed to file a notice of appeal as requested by the
defendant and thereby deprived the defendant of an appeal as of
right, that the defendant “should be resentenced so that he may
perfect an appeal in the manner prescribed by the applicable rules.”
11 Rodriquez v. United States, 395 U.S. 327, 332 (89 SCt 1715, 23 LE2d
340) (1969). See also Douglas v. California, 372 U.S. 353, 356-358
(83 SCt 814, 9 LE2d 811) (1963) (indigent defendants have a
constitutional right to appointed counsel for their first appeal as of
right from a criminal conviction); Evitts v. Lucey, 469 U.S. 387, 396
(105 SCt 830, 83 LE2d 821) (1985) (“A first appeal as of right . . . is
not adjudicated in accord with due process of law if the appellant
does not have the effective assistance of an attorney.”).
In the years that followed, this Court began to hold that
convicted defendants who were unconstitutionally deprived of their
right to appeal as a result of a denial of counsel or as a result of trial
counsel’s constitutionally ineffective assistance could obtain an “out-
of-time appeal” as relief in Georgia habeas corpus proceedings. See
Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444) (1973)
(reversing the denial of habeas relief because the petitioner “was
denied appellate counsel on his first appeal,” and remanding the
case “with direction to the habeas corpus court to enter an order
providing for the appointment of counsel to determine if there is any
12 justifiable ground for an appeal from the original convictions, and if
such determination is in the affirmative, then an appeal may be filed
and prosecuted with benefit of counsel even at this late date”)
(emphasis supplied); McAuliffe v. Rutledge, 231 Ga. 745, 746 (204
SE2d 141) (1974) (reversing the judgment of the habeas court
because the petitioner “was indeed denied effective assistance of
counsel in attempting to appeal his conviction,” and directing that
the petitioner “be allowed, if he so desires, to file an out of time appeal
to the proper appellate court within 30 days from the date the
remittitur from this court is filed in the trial court”) (emphasis
supplied). See also Collier, 307 Ga. at 371 (observing that a “few
years after Rodriquez, the ‘out-of-time appeal’ remedy began to
appear in Georgia’s habeas corpus jurisprudence”); id. at 373 (“A
request for an out-of-time appeal based on a deprivation of
constitutional rights clearly may be brought in a petition for a writ
of habeas corpus.”).4
4 There is no dispute that an out-of-time appeal may still be sought as a
remedy in a habeas corpus proceeding. See, e.g., Hall v. Jackson, 310 Ga. 714,
13 Accordingly, when this Court first encountered a motion for
out-of-time appeal filed in a trial court (rather than in a habeas
court) shortly after the Habeas Corpus Act’s enactment, we deemed
the motion invalid. In Neal, we affirmed a trial court’s order
dismissing an inmate’s motion seeking an untimely appeal from his
conviction on a guilty plea entered seven years earlier, explaining
that a petition for a writ of habeas corpus was “an adequate post-
conviction remedy” for “denial of the right of appeal or of the
effective assistance of counsel on appeal.” 232 Ga. at 96 (citing
McAuliffe, 231 Ga. at 745). In so doing, we specifically held that the
motion “should have been filed [as a habeas petition] in the superior
court wherein the petitioner [was] being detained, not in the
724 (854 SE2d 539) (2021) (the appropriate remedy when a habeas court determines that appellate counsel provided ineffective assistance due to a conflict of interest “is to grant [the petitioner an] out-of-time appeal, which will allow him to start the post-conviction process anew with the assistance of conflict-free counsel”); Trauth v. State, 295 Ga. 874, 876 (763 SE2d 854) (2014) (“[W]here, as here, a pro se defendant has been improperly denied counsel for his first appeal, he is entitled to [habeas] relief in the form of having counsel appointed ‘to determine if there is any justifiable ground for an appeal from the original convictions, and if such determination is in the affirmative, file and prosecute a new direct appeal with the benefit of counsel.’”) (quoting Roberts, 230 Ga. at 224; punctuation omitted). 14 convicting court.” Id. at 96-97.
Nevertheless, a year after Neal, without acknowledging our
holding in that case or the existence of the Habeas Corpus Act, this
Court began to review appeals from trial court denials of motions for
out-of-time appeal, as well as appeals from convictions pursuant to
the grants of such motions by trial courts, without addressing
whether the out-of-time appeal procedure in the trial court was
authorized in the first place. In King, 233 Ga. at 630-631, we
considered on the merits an appeal from the trial court’s denial of a
motion for out-of-time appeal, and in Furgerson, 234 Ga. at 595-596,
we considered on the merits an appeal that followed the trial court’s
grant of a motion for out-of-time appeal. Notably, neither King nor
Furgerson constituted precedent on the trial court out-of-time appeal
procedure, because in those cases we merely considered the merits
of an appeal following a trial court ruling on a motion for out-of-time
appeal; we did not address whether the trial court procedure was
valid. See Collier, 307 Ga. at 372 (“Notwithstanding [Neal], this
Court began reviewing trial court rulings on out-of-time appeal
15 motions without any discussion of the propriety of the out-of-time
appeal process in the trial court.”) (citing King and Furgerson). See
also Seals v. State, 311 Ga. 739, 745 (860 SE2d 419) (2021) (“[I]n
none of those cases was there any discussion of jurisdiction at all,
much less analysis and a holding on the issue. Decisions of this
Court and of the Court of Appeals ‘do not stand for points that were
neither raised by the parties nor actually decided in the resulting
opinion,’ and ‘questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.’”)
(citation omitted).5
Then, two decades later in Rowland, this Court for the first
5 None of our early cases allowing the out-of-time appeal procedure in
trial courts cited any authority, with one exception: in 1978, this Court noted that the out-of-time appeal procedure in Georgia “has no codical basis” but “appears to have had its genesis in Byrd v. Smith, 407 F2d 363 (5th Cir. 1969).” Lay v. State, 242 Ga. 225, 225 n.1 (248 SE2d 611) (1978). See also Collier, 307 Ga. at 371 n.9 (quoting Lay). But Byrd was a federal habeas decision requiring that Georgia “either allow an appeal at this time or permit an out-of-time appeal by whatever procedure is necessary.” 407 F2d at 366. Byrd did not purport to require Georgia to establish a state procedure other than habeas corpus for considering alleged unconstitutional deprivations of the right to appeal. 16 time held squarely that an out-of-time appeal could properly be
obtained in the trial court as well as in habeas corpus. Specifically,
we concluded that the out-of-time appeal “granted where [counsel’s]
deficiency involves not the trial but the denial of the right to appeal
. . . serves as a remedy” not only “for a habeas corpus petitioner who
suffered a constitutional deprivation,” but also for “the criminal
defendant who has shown ‘good and sufficient reason’ to a trial
court.” Rowland, 264 Ga. at 875 (citations and punctuation
omitted). We reached that conclusion without citing any applicable
legal authority and without acknowledging or overruling our
contrary holding in Neal. See id. at 875-876. However unreasoned
it was, Rowland, rather than Neal, became the governing precedent
on the trial court out-of-time appeal procedure in Georgia courts.
See White v. State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019)
(explaining that when discord exists between older and newer
precedents of a jurisdiction’s highest court, the more recent decision
controls). See also Schoicket, 312 Ga. at 829 n.5 (citing White).
In sum: even though the General Assembly statutorily
17 established habeas corpus as the exclusive procedure for vindicating
a convicted defendant’s constitutional rights, including the
deprivation of the right to appeal, and established the contours of
the procedure to seek such relief, this Court allowed and then
expressly endorsed a procedure parallel to, but distinct from, habeas
corpus for convicted defendants to seek vindication of alleged
constitutional violations that frustrated their right to appeal. And
allowing convicted defendants to do so in turn allowed them to
circumvent the requirements and restrictions imposed by the
Habeas Corpus Act.
Our error was significant. By judicially creating this trial court
out-of-time appeal procedure—a procedure that is neither
authorized by our common law6 nor established by statute—this
6 At common law, courts could only modify their judgments in the same
term of court, which in Georgia ranges from two to eight months long. See Gray v. State, 310 Ga. 259, 262 (850 SE2d 36) (2020) (“Georgia courts have long applied the common-law rule that the trial court has the inherent authority to modify a judgment within the term of court and that a motion made during the term serves to extend the power to modify.”) (citation and punctuation omitted); OCGA § 15-6-3 (setting out the “terms of court for the superior courts for each of the judicial circuits”). We are not aware of any procedure at common law by which a trial court may allow a party to challenge a conviction outside the term of court. 18 Court acted not as a body of judges, but as a body of lawmakers. Cf.
Duke v. State, 306 Ga. 171, 174, 186 (829 SE2d 348) (2019)
(unanimously overruling precedent that “created a judicial
exception to the statutory requirements for bringing an
interlocutory appeal” and recognizing that the “scheme for appellate
interlocutory review is legislative in nature”) (citation and
punctuation omitted). In so doing, we usurped the power of the
Legislative Branch, which implicates separation-of-powers concerns
under the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec.
II, Par. III (“The legislative, judicial, and executive powers shall
forever remain separate and distinct; and no person discharging the
duties of one shall at the same time exercise the functions of either
of the others . . . .”). See also Duke, 306 Ga. at 186 (“We reiterate
this core separation of powers principle today. . . . [T]he General
Assembly is free to change or abolish th[e] requirement [that a trial
court must issue a timely certificate of immediate review before an
interlocutory appeal may be pursued]. But this Court lacks that
authority, and we should never have claimed it.”). Suffice it to say
19 that we did not identify that concern at the time we decided
Rowland or for many years thereafter. Instead, we continued for
more than two decades to decide cases following trial court rulings
on motions for out-of-time appeals—and apparently did so without
consideration of the statutory and decisional authorities Rowland
ignored in reaching its holding.
(b) Two Decades of Misinterpretation and More Recent Course- Correction With Respect to the Availability of Out-of-Time Appeals After Guilty Pleas
As it turns out, our unsupported and seemingly unthinking
creation of the trial court out-of-time procedural vehicle was
matched by our long-standing erroneous application of the
substantive standard for granting an out-of-time appeal following a
conviction by guilty plea. Indeed, over the course of many years,
“this Court and the Court of Appeals [ ] in hundreds of cases”
erroneously “required defendants whose convictions came by guilty
pleas to show that they could actually prevail in an appeal before
allowing them that appeal out-of-time.” Ringold v. State, 304 Ga.
875, 883 (823 SE2d 342) (2019) (Nahmias, P. J., concurring). That
20 requirement was flatly inconsistent with the United States Supreme
Court’s holding in Roe v. Flores-Ortega, 528 U.S. 470 (120 SCt 1029,
145 LE2d 985) (2000)—controlling precedent on Sixth Amendment
ineffective-assistance-of-counsel claims involving the failure to file a
timely appeal from a criminal conviction, whether that conviction
was based on a guilty plea or a guilty verdict after a trial.7 See
Ringold, 304 Ga. at 883 (Nahmias, P. J., concurring). As a result, in
2019 we overruled two decades’ worth of cases from this Court and
the Court of Appeals involving analysis of out-of-time appeals that
conflicted with Flores-Ortega. See Collier, 307 Ga. at 376-378.8
7 In Flores-Ortega, which involved a lawyer’s failure to file a notice of
appeal following the entry of his client’s guilty plea, the Supreme Court held, among other things, “that when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal” and that “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.” 528 U.S. at 484, 486 (emphasis in original). See also Garza v. Idaho, — U.S. — (139 SCt 738, 746-747, 203 LE2d 77) (2019) (explaining and reaffirming Flores-Ortega). Notably, we had recognized Flores-Ortega and properly applied its holding to the analysis of requests for out-of-time appeals from convictions after trials. See White v. State, 277 Ga. 647, 648 (594 SE2d 329) (2004). See also Collier, 307 Ga. at 366 (citing White). 8 Among the cases Collier overruled was Morrow v. State, 266 Ga. 3 (463
21 A review of those overruled cases—40 from this Court and 46
from the Court of Appeals—reveals that, for the 20-plus years that
Georgia’s appellate courts endorsed an incorrect ineffective-
assistance-of-counsel standard for the analysis of motions for out-of-
time appeals from guilty-plea convictions, trial courts routinely
denied such motions without a hearing, and appellate courts
affirmed those denials in short order. Rejecting those motions was,
in most cases, an unsurprising result, given that our courts were
applying a standard that required a defendant seeking an out-of-
time appeal from her guilty-plea conviction—a defendant who
almost always was not represented by counsel—not only to allege
and prove that her right to appeal was frustrated by her plea
counsel’s unconstitutionally deficient performance, but also to
prove, based on the limited record, that her appeal would have
succeeded. Since Ringold and Collier, we have observed an
SE2d 472) (1995), and its progeny—which 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,” id. at 3—which was also inconsistent with Flores-Ortega. See Collier, 307 Ga. at 367-369. 22 increasing number of appeals docketed in this Court that stem from
the denial of motions for out-of-time appeal, and many of those cases
involve motions for out-of-time appeal—like the one in this case—
that were filed in the trial court many years after the judgment was
entered on the defendant’s guilty plea. Indeed, we have identified
at least five such appeals to this Court in the past year alone. See,
e.g., Boone v. State, 313 Ga. 78, 79 (868 SE2d 202 (2022); Mobuary
v. State, 312 Ga. 337, 338 (862 SE2d 553) (2021); Harvey v. State,
312 Ga. 263, 263 n.1 (862 SE2d 120) (2021); Terry-Hall v. State, 312
Ga. 250, 251 (862 SE2d 110) (2021); McDaniel v. State, 311 Ga. 367,
368 (857 SE2d 479) (2021). See also Collier, 307 Ga. at 374 & n.14
(recognizing that “some of our out-of-time appeal cases have
involved long delays after conviction” and citing two 2011 cases with
delays of 15 and 26 years).
(c) Habeas Corpus Reaffirmed as the “Comprehensive Statutory Means” For Vindicating Alleged Constitutional Violations After a Final Conviction
In 2019—the same year we decided Collier—this Court also
reaffirmed that “‘habeas corpus is the exclusive post-appeal
23 procedure available to a criminal defendant who asserts the denial
of a constitutional right.’” Mitchum v. State, 306 Ga. 878, 883 (834
SE2d 65) (2019) (quoting State v. Smith, 276 Ga. 14, 15 (573 SE2d
64) (2002); emphasis supplied in Mitchum). In explaining our
holding in Mitchum—that an extraordinary motion for new trial
“was not the appropriate vehicle” for a convicted defendant to pursue
alleged constitutional deprivations because “habeas corpus provided
an adequate remedy”—we explained the foundational principle that
“when the General Assembly in 1967 expanded the scope of matters
that could be addressed through habeas corpus to include
constitutional deprivation claims, an adequate statutory remedy
was created to address those constitutional claims.” Id. at 884. We
concluded that the Habeas Corpus Act amounted to the “creation of
a comprehensive statutory means through which constitutional (and
only constitutional) claims could be pursued.” Id. See also
Valenzuela v. Newsome, 253 Ga. 793, 794-795 (325 SE2d 370) (1985)
(explaining that OCGA § 9-14-42 (a) also allowed claims for alleged
violations of state statutes until a 1982 amendment to the Habeas
24 Corpus Act). Mitchum’s holding was consistent with prior cases in
which this Court rejected attempts to use post-conviction procedures
other than habeas corpus as a vehicle to vindicate a convicted
defendant’s constitutional rights. See, e.g., Daker v. Ray, 275 Ga.
205, 206 (563 SE2d 429) (2002) (rejecting the writ of mandamus as
a means to challenge a conviction and sentence as void and
identifying habeas corpus as the exclusive remedy under the
circumstances); Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002)
(rejecting untimely motion to withdraw guilty plea and noting that
the only means available to challenge the convicted defendant’s
guilty plea was habeas corpus). Nevertheless, the motion for out-of-
time appeal procedure remained available for convicted defendants
to seek vindication of one (but only one) of their constitutional
rights—the right to an appeal as of right—in the court of their
conviction, as opposed to only in a habeas court after filing a habeas
petition.
(d) Recent Skepticism About the Trial Court Out-of-Time Appeal Procedure
25 It was not until Collier in 2019 that this Court first examined
in a published opinion how the trial court out-of-time appeal
procedure had been created, how it evolved, and how it had persisted
as a parallel procedure for convicted defendants who could also use
habeas corpus proceedings to vindicate their constitutional rights.
Although we did not determine in Collier “whether the out-of-time
appeal process in the trial court should be maintained,” we began
expressing skepticism in that regard, recognizing that “the trial
court process is certainly an exception to the general rule that a trial
court’s jurisdiction ends following a final conviction and the end of
the term of court.” Collier, 307 Ga. at 376. Our review of the history
of that process made apparent that the relevant precedents were
conspicuously short on reasoning and authority; Collier explained
that “our out-of-time appeal jurisprudence . . . focused more on the
remedial purpose served by an out-of-time appeal and less on the
nature of the remedy or the appropriate process for obtaining it.” Id.
at 371-373.
Moreover, given the concern the State raised in Collier about
26 “long-delayed out-of-time appeal motions brought in the trial court,”
id. at 370, we acknowledged that motions for out-of-time appeal in
trial courts were “not directly barred by the application of any
statute of limitation” and considered whether the common-law
doctrine of laches (also known as “prejudicial delay”) could apply to
the proceedings to bar a convicted defendant from obtaining relief,
id. at 375. The majority opinion concluded that the State could
“raise the defense of ‘prejudicial delay’ to out-of-time appeal motions
filed in the trial court,” id. at 370, and further noted that the State
could argue “and the trial court [could] consider the time periods,
factors, and other criteria set out in the most analogous limitation
and laches provisions—those found in the Habeas Corpus Act—in
determining whether the State’s defense has merit and the
defendant’s motion should be dismissed,” id. at 375.9 Four Justices
9 It is notable that the absence of a time limitation for the trial court out-
of-time appeal procedure stands in stark contrast with other post-conviction filings in trial courts, such as a motion for new trial—which must be filed “within 30 days of the entry of the judgment,” OCGA § 5-5-40 (a), and a motion to withdraw a guilty plea—which under the common law must be filed within the same term of court, see Schoicket, 312 Ga. at 827. 27 did not join that portion of the Collier majority, however,
characterizing the majority opinion’s endorsement of a prejudicial
delay defense as “tinker[ing] at the margins of the mess we have
made.” Id. at 379 (Peterson, J., concurring specially, joined by
Blackwell, Boggs, and Bethel, JJ.).
Not long after Collier, in Kelly v. State, we addressed another
outgrowth of our out-of-time appeal jurisprudence: our prior holding
in Maxwell v. State, 262 Ga. 541, 542-543 (422 SE2d 543) (1992),
that if an out-of-time appeal is granted in the trial court, the
defendant “is permitted to file a second motion for new trial in order
to raise claims of trial counsel ineffectiveness that could not have
been raised in the initial motion for new trial.” Kelly, 311 Ga. at
829. Maxwell stated “that the grant of an out-of-time appeal permits
a defendant, by the grace of the court, to start the post-conviction
process anew.” 262 Ga. at 542-543. We determined that this
statement in Maxwell (and later cases) was overbroad, disapproved
that broad reading, and held that a defendant who had been granted
a motion for out-of-time appeal in the trial court was not authorized
28 to file a second motion for new trial that did not involve ineffective-
assistance-of-counsel claims that she was “unable to assert in her
initial motion for new trial.” Kelly, 311 Ga. at 829, 831. We
dismissed Kelly’s appeal as a result. See id. at 831.
Most recently, in Schoicket, we were faced with the question of
whether to implement a “logical extension” of our precedents to
allow a defendant who had obtained an out-of-time appeal in the
trial court also to file an otherwise-untimely motion to withdraw her
guilty plea, or whether to draw the line and stop “trail-blazing” with
our “invented remedy.” 312 Ga. at 825-826, 832. In declining to
extend our out-of-time appeal jurisprudence to motions to withdraw
guilty pleas, Justice Peterson, writing for the majority,
acknowledged that “this Court ignored contrary precedent and
statutes in creating out of whole cloth the motion for out-of-time
appeal in the trial court.” Id. at 825. The majority opinion
recognized that we “should not have invented” that post-conviction
procedure, id. at 826, and that “[f]or decades now, our post-
conviction jurisprudence has been described as a ‘tangle’ of
29 ‘confusing’ procedural rules,” id. at 830. Regarding the “competing
concerns involved in post-conviction relief procedures—addressing
violations of a defendant’s constitutional rights on the one hand, and
ensuring finality on the other,” the majority opinion pointed out that
“the General Assembly has enacted habeas statutes balancing these
competing concerns” and that “[w]e lack the authority to substitute
our policy preferences for those of the General Assembly and thereby
allow a defendant to skirt the legislatively established process.” Id.
at 831. Even one of the dissents in Schoicket recognized that
[a]t multiple points, we could have retracted our recognition of the out-of-time appeal procedural vehicle and once again adhered to our conclusion in Neal that the General Assembly in the Habeas Corpus Act provided an adequate remedy—and the exclusive one—for the right of appeal frustrated by the ineffective assistance of counsel.
Schoicket, 312 Ga. at 838 (Ellington, J., dissenting in part). 3. Stare Decisis Analysis
In recognition of these concerns, in this case we asked the
parties and amici curiae for briefs and oral arguments addressing
whether the procedural vehicle of a motion for out-of-time appeal in
a trial court should continue to be available to a convicted defendant
30 who alleges that she was deprived of her right to appeal because of
her counsel’s alleged ineffective assistance, as opposed to a petition
for writ of habeas corpus serving as the exclusive procedural vehicle
through which to seek that remedy. That question is a difficult one:
given that the judicially created motion for out-of-time appeal
procedure in the trial court has existed for many years now, do
principles of stare decisis require that it be perpetuated? See Nalls
v. State, 304 Ga. 168, 179 (815 SE2d 38) (2018) (“Before we overrule
our incorrectly decided case law on this point, we must consider
whether stare decisis counsels us not to.”); Ramos v. Louisiana, —
U.S. —, — (140 SCt 1390, 1412, 206 LE2d 583) (2020) (Kavanaugh,
J., concurring in part) (“[A]pplying the doctrine of stare decisis, this
Court ordinarily adheres to precedent, but sometimes overrules
precedent. The difficult question, then, is when to overrule an
erroneous precedent.”). As explained more below, we conclude that
stare decisis principles do not weigh in favor of adhering to our trial
court out-of-time appeal precedent and that we should revert to the
law properly established by the Habeas Corpus Act and our decision
31 in Neal.
(a) Background Principles
Stare decisis is a “principle of policy,” State v. Jackson, 287 Ga.
646, 658 (697 SE2d 757) (2010) (citation and punctuation omitted),
under which courts “generally stand by their prior decisions,
because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of
the judicial process.” Pounds v. State, 309 Ga. 376, 382 (846 SE2d
48) (2020) (citation and punctuation omitted). This Court has a
longstanding tradition of considering stare decisis when evaluating
whether to overrule its precedents, and we invoked such an analysis
even before we articulated in Jackson a more consistent set of factors
we would consider in doing so. See, e.g., Leary v. Durham, 4 Ga.
593, 601 (1848); Robison v. Beall, 26 Ga. 17, 60 (1858), disapproved
in part on other grounds, Fitzpatrick v. McGregor, 133 Ga. 332, 339
(65 SE 859) (1909); Adams v. Brooks, 35 Ga. 63, 66 (1866); City of
Atlanta v. First Presbyterian Church, 86 Ga. 730, 732-733 (13 SE
32 252) (1891); Ellison v. Ga. R.R. Co., 87 Ga. 691, 696 (13 SE 809)
(1891); Rogers v. Carmichael, 184 Ga. 496, 510-512 (192 SE 39)
(1937); Davis v. Penn Mut. Life Ins. Co., 198 Ga. 550, 563-564 (32
SE2d 180) (1944); Humthlett v. Reeves, 211 Ga. 210, 215 (85 SE2d
25) (1954); Sharpe v. Dept. of Transp., 267 Ga. 267, 270-271 (476
SE2d 722) (1996); Etkind v. Suarez, 271 Ga. 352, 356-358 (519 SE2d
210) (1999); Harper v. State, 286 Ga. 216, 218 (686 SE2d 786) (2009).
Since Jackson, we have regularly considered in our stare decisis
analyses “a number of factors, including the age of the precedent,
the reliance interests involved, the workability of the prior decision,
and most importantly, the soundness of its reasoning.” Pounds, 309
Ga. at 382 (citation and punctuation omitted). And although the
soundness, age, reliance, and workability factors have provided a
useful framework for such analyses, the list of factors we have
considered has never purported to be exclusive. See, e.g., Jackson,
287 Ga. at 658 (“[W]e consider factors such as . . . .”) (citing Montejo
v. Louisiana, 556 U.S. 778 (129 SCt 2079, 173 LE2d 955) (2009))
(emphasis supplied).
33 “But stare decisis is not an inexorable command.” Pounds, 309
Ga. at 382 (citation and punctuation omitted). See also Woodard v.
State, 296 Ga. 803, 812 (771 SE2d 362) (2015) (stare decisis is not a
“mechanical formula of adherence to the latest decision”) (citation
and punctuation omitted). “[I]n reconsidering our prior decisions,
we must balance the importance of having the question decided
against the importance of having it decided right.” Gilliam v. State,
312 Ga. 60, 62 (860 SE2d 543) (2021) (citation and punctuation
omitted; emphasis in original). See also Harper, 286 Ga. at 218
(“While ‘the rule of stare decisis is a wholesome one, it should not be
used to sanctify and perpetuate error. Courts, like individuals, but
with more caution and deliberation, must sometimes reconsider
what has been already carefully considered, and rectify their own
mistakes.’”) (quoting City of Atlanta, 86 Ga. at 732-733)
(punctuation omitted). To that end, we have explained that the
source of the precedent we are examining plays an important role in
that balance: “stare decisis carries less weight when our prior
precedent involved the interpretation of the Constitution,” Olevik v.
34 State, 302 Ga. 228, 245 (806 SE2d 505) (2017), whereas the force of
stare decisis is generally greater with respect to an erroneous
interpretation of statutory law, see Cooper Tire & Rubber Co. v.
McCall, 312 Ga. 422, 435 (863 SE2d 81) (2021) (“Considerations of
stare decisis have greater weight with regard to precedents
interpreting statutes than precedents regarding constitutional
issues.”). We have supported this distinction by reasoning that “it
is much harder for the democratic process to correct or alter our
interpretation of the Constitution than our interpretation of a
statute or regulation.” Gilliam, 312 Ga. at 62 (citation and
punctuation omitted).
Here, because the few actual precedents we are reconsidering
are cases in which this Court ignored or contravened the statutory
scheme established by the Habeas Corpus Act, we apply greater
weight to them than we would if they were rooted in our
interpretation of the federal or state Constitution. See Cooper Tire
& Rubber Co., 312 Ga. at 435. However, even within the context of
statutory stare decisis, when “we have misinterpreted a statute by
35 failing to consider the statute’s language at all, stare decisis applies
with less force.” Nalls, 304 Ga. at 179-180 (emphasis supplied).
Thus, considerations of stare decisis apply with less force to
Rowland and its progeny than they otherwise would to precedents
rooted in statutory interpretation. That is because Rowland and its
pre-Collier progeny utterly ignored the statutory text and context of
the Habeas Corpus Act and indeed contradicted Neal’s earlier and
definitive holding that correctly applied the statutory scheme set
forth in the Act “without engaging in any analysis of stare decisis.”
Willis v. State, 304 Ga. 686, 706 (820 SE2d 640) (2018) (citation and
punctuation omitted). Keeping these principles in mind, we turn to
the stare decisis analysis in this case.
(b) Soundness of the Reasoning
We have consistently said that the soundness of the reasoning
of the relevant precedent is the most important factor in the stare
decisis analysis. See, e.g., Pounds, 309 Ga. at 382; Olevik, 302 Ga.
at 245; Jackson, 287 Ga. at 658. As we explained above and will
explain more below, our creation and endorsement of the trial court
36 out-of-time-appeal procedural vehicle, and our precedents that flow
from that creation, are unequivocally unsound.
As is apparent from our review of Georgia law in Division 0 0
above, the separate procedure that this Court created for obtaining
an out-of-time appeal in the trial court has neither a statutory nor a
common-law basis. The initial cases in which we considered the
merits of an appeal following a trial court ruling on a motion for an
out-of-time appeal, King and Furgerson, did not acknowledge the
existence of the Habeas Corpus Act, let alone distinguish between
motions for out-of-time appeals sought in a trial court and similar
filings made in a habeas court. Rowland, on the other hand,
acknowledged that the defendant in that case could seek relief in
habeas, but offered no analysis of the import of that point, and was
otherwise devoid of reasoning showing why a trial court out-of-time
appeal procedure could or should exist. And Rowland’s progeny
wholly lacked acknowledgment and analysis of this state’s post-
conviction statutory scheme. Most importantly for these purposes,
Rowland and its progeny not only failed to cite precedent to support
37 our Court’s creation of a trial court out-of-time appeal procedural
vehicle; they also ignored precedent from this Court (Neal) that
rejected the very action that Rowland and its progeny endorsed. As
Justice Peterson’s special concurrence in Collier recognized, we
“created out of whole cloth” the trial court out-of-time-appeal
procedure; we did so “without any analysis whatsoever”; and “there
can be no doubt that our reasons—to the extent that we’ve had any—
have been purely ‘policy.’” 307 Ga. at 379-381 (Peterson, J.,
concurring specially).10
We have also outlined above the inconsistency of the judicially
created trial court out-of-time appeal procedure with the legal
conclusion articulated in other cases, including in Neal and
Mitchum, that the Habeas Corpus Act serves as the exclusive
10 By the time we decided Schoicket two years later, eight Justices expressly agreed that we had “creat[ed] out of whole cloth” the out-of-time appeal procedure. See Schoicket, 312 Ga. at 825; id. at 841-842 (Colvin, J., dissenting in part but agreeing that we created the out-of-time appeal procedure “out of whole cloth” and proposing that we “follow Neal,” “eliminat[e] the stand-alone out-of-time appeal procedure,” and “require prisoners seeking an out-of-time appeal and associated remedies to use the habeas procedures that the General Assembly has afforded”). 38 procedural vehicle in Georgia law for convicted defendants to seek
relief for alleged constitutional violations relating to their
convictions. See Pounds, 309 Ga. at 382 (overruling cases holding
that a late-filed motion for new trial was void and an order denying
it must be affirmed, in part because the reasoning of the prior
precedent at issue was “inconsistent with applicable legal principles
articulated in our other case law in this area”). Our cases creating
the motion for out-of-time appeal in the trial court are thus
“unsound and contrary to the body of our law,” Jackson, 287 Ga. at
658, and that weighs most heavily in our stare decisis analysis.11
11 In his dissent in this case, Justice Peterson argues—as he did in his
dissent in Frett—that “once we’ve determined that a decision was unsound, the other Jackson factors never seem to be particularly meaningful.” See Frett v. State Farm Employee Workers’ Compensation, 309 Ga. 44, 63-64 (844 SE2d 749) (2020) (Peterson, J., dissenting). We disagree, and our answer today is the same one the Court provided in Frett: [I]t is unsurprising that the Court would expend the judicial time and resources to write an extensive analysis of stare decisis mostly in cases in which the Court decides to depart from the usual rule that we adhere to our precedents, and it is equally unsurprising that we would say little about stare decisis in the numerous cases in which we stand by our precedents. Indeed, there are plenty of recent cases in which we have adhered to and applied our statutory precedents without any discussion of—or any express reference to—the doctrine of stare decisis, even when a party has asked us to revisit those precedents. In a perfect world in which judicial
39 Moreover, an unusual aspect of this case is that neither the
State nor any of the amici curiae—which represent the views of both
prosecutors (PAC) and criminal defense lawyers (GACDL)—
contends that our judicial decisions creating or endorsing the trial
court out-of-time appeal procedural vehicle are supported by sound
reasoning or relevant authority.12 In light of all of these
time and resources were not so limited, perhaps it would be better to write about stare decisis whenever a court unremarkably adheres to its precedents. But that is not reality for very busy courts like ours. Id. at 62 n.15 (majority opinion) (citations omitted).
12 All of the parties and amici who have weighed in on the stare decisis
analysis of this Court’s cases creating the out-of-time appeal procedural vehicle agree that those precedents are unsound. The Attorney General contends that “this Court’s decisions holding that motions for out-of-time appeals are available to raise ineffective-assistance claims are plainly wrong. The rule conflicts with Georgia’s statutory scheme for post-conviction relief, as well as this Court’s other cases.” The District Attorney contends that “the soundness of the reasoning for these cases . . . has certainly been ‘confusing’ at best, if not, altogether unsound, regardless of how well-intended they are.” Amicus PAC states that “the basis for the creation of an out-of-time appeal is unwieldy, contradictory, and unsound, as it creates two paths to relief, contradicts statute, and does not lead to finality in judgment.” And even GACDL concedes that “[t]he out-of-time appeal is a jerry-rigged remedy, illegitimate but practical,” and that “[t]here can be little doubt at this point that [this] Court was without authority to craft the out-of-time-appeal [procedure] in the first instance.” We note that in her supplemental brief, Cook appears to focus her stare-decisis analysis exclusively on Schoicket instead of on the earlier out-of- time appeal precedent discussed above in Division 0 0, and as a result does not offer her views on that precedent. 40 considerations, such “significant unsoundness cuts heavily in favor
of overruling” our prior precedent. Duke, 306 Ga. at 184 (citation
(c) Age of Precedent, Traditional Reliance Interests, and “Entrenchment”
Two other familiar stare decisis factors—age and reliance
interests—are nominally distinct, but can also be intertwined. This
makes sense: the older a precedent is, the more opportunity it has
to become part of the legal landscape on which the public, the bench
and bar, and others rely. But cf., e.g., Frett v. State Farm Employee
Workers’ Compensation, 309 Ga. 44, 60 (844 SE2d 749) (2020)
(pointing out, in the course of overruling an 85-year-old precedent,
the opposite phenomenon and noting that we had “never cited [the
precedent] for its specific holding . . . and ha[d] not cited [the
precedent] for any proposition at all in the past 60 years”) (emphasis
in original).
Rarely, if ever, is the age of a precedent itself dispositive in a
stare decisis analysis, and that is so here. See Southall v. State, 300
41 Ga. 462, 468 (796 SE2d 261) (2017) (“[W]ithout more, that we have
been wrong for many years is no reason to persist in the error.”)
(citation and punctuation omitted). As discussed above in Division
0 0, the first actual precedent approving and applying the trial court
out-of-time appeal procedure was Rowland, a 27-year-old case that
we can hardly call “ancient.” Willis, 304 Ga. at 705 (citation and
punctuation omitted). We have overruled statutory precedents of
comparable, and sometimes older, ages. See, e.g., Duke, 306 Ga. at
184 (overruling 19-year-old precedent); City of Cumming v. Flowers,
300 Ga. 820, 832 (797 SE2d 846) (2017) (overruling 21-year-old
precedent); Woodard, 296 Ga. at 812 (overruling 24-year-old
precedent); State v. Burns, 306 Ga. 117, 123-124 (829 SE2d 367)
(2019) (overruling 30-year-old precedent); Jackson, 287 Ga. at 659
(overruling precedent that was “nearly three decades old”); Southall,
300 Ga. at 468 (overruling 45-year-old precedent). We thus move to
an examination of the broader reliance interests related to our trial
court out-of-time-appeal precedents.
When it comes to reliance interests, we have traditionally
42 looked to whether the precedent at issue affects property or contract
issues, and whether it establishes a substantive right; reliance
interests are at their apex when they involve these types of interests.
See, e.g., Savage v. State of Ga., 297 Ga. 627, 641-642 (774 SE2d
624) (2015) (“[S]tare decisis is especially important where judicial
decisions create substantial reliance interests, as is most common
with rulings involving contract and property rights.”) (citing cases).
See also Olevik, 302 Ga. at 245 (“Substantial reliance interests are
an important consideration for precedents involving contract and
property rights, ‘where parties may have acted in conformance with
existing legal rules in order to conduct transactions.’”) (citation
omitted). Compare Jackson, 287 Ga. at 658 (explaining that the
precedent at issue “affects no property or contract issues and
establishes no substantive rights, so it creates no meaningful
reliance interests”); Nalls, 304 Ga. at 180 (same).
No such reliance interests are at stake here. We have
repeatedly held that precedents—like the ones at issue here—
relating to procedures, including post-conviction procedures, create
43 no substantive rights “in which anyone has a significant reliance
interest.” Duke, 306 Ga. at 184-185 (precedent that “disregard[ed]”
the statutory requirement for a certificate of immediate review
before pursuing an interlocutory appeal did “not involve substantial
reliance interests”). See also, e.g., Pounds, 309 Ga. at 382 (“[T]he
issues involved are ones of appellate procedure, not . . . substantive
rights in which anyone has a significant reliance interest.”) (citation
and punctuation omitted); Willis, 304 Ga. at 706 (“As to the reliance
issues potentially at stake, we note that the holdings in [our prior
precedents] are procedural in nature and establish no substantive
rights.”) (citation and punctuation omitted). Moreover, Rowland
and its progeny did not establish any substantive rights in the first
instance; they merely created an alternative procedural vehicle—
albeit a legally unauthorized one—for alleging the violation of a
preexisting constitutional right (i.e., the effective assistance of
counsel in filing a timely appeal as of right) and for obtaining a
44 constitutionally necessary remedy if that right was violated.13
Eliminating this alternate procedure would not extinguish a
convicted defendant’s ability to vindicate an alleged violation of her
right to appeal due to constitutionally ineffective assistance of
counsel, because the General Assembly long ago established a
habeas corpus procedure through which a convicted defendant can
vindicate that very same constitutional claim.14
We have also considered, however, a different type of reliance
interest in some of our stare decisis analyses: the “entrenchment” of
13 While GACDL concedes that “[p]rocedural rules do not normally create
the kinds of reliance interests that stare decisis is concerned with because they affect no property or contract issues and establish no substantive rights” (citations and punctuation omitted), it nonetheless points to a number of non- traditional concerns that it characterizes as reliance interests in the trial court out-of-time appeal system. Those include “the incalculable value of the time lost waiting for a habeas court that is a stranger to the parties . . . to decide in a formal proceeding what a sentencing court can decide promptly on a motion” and the fact that defendants are not required to pay a filing fee for out-of-time appeals, whereas petitions for habeas corpus require filing fees and other costs. Compare OCGA § 15-6-77 (h), (k) with OCGA § 24-13-25. These and other factors are considered below in Division 0 0 as part of our workability analysis.
14 To the extent GACDL postulates that, if the trial court out-of-time
appeal vehicle were eliminated, some number of convicted defendants would lose their appeal as of right and might also have missed the relevant statute of limitation in habeas corpus, we note that the General Assembly can grant relief from the habeas statute of limitation if it deems any such potential result unjust. 45 the precedent in the legal system. See, e.g., Frett, 309 Ga. at 60
(noting that the precedent at issue had not “become deeply
entrenched in our jurisprudence”). See also Williams v. Harvey, 311
Ga. 439, 451 (858 SE2d 479) (2021) (the holdings in prior precedents
are “neither ancient nor entrenched within our judicial system”)
(citation and punctuation omitted); Flowers, 300 Ga. at 831-832 (the
prior precedent is “neither ancient nor entrenched”) (citation and
punctuation omitted). Whether entrenchment constitutes a species
of reliance or whether it is instead a separate factor in the stare
decisis analysis is of no moment; we see no reason we cannot
consider it here.
The dissent seizes on the concept of entrenchment and focuses
almost myopically on it in its stare decisis analysis. Characterizing
entrenchment “in a narrow sense [as whether a precedent’s]
relevant holding has been applied frequently,” and more broadly as
“potential disruption to the legal system that might be caused by
suddenly jettisoning a particular precedent,” it contends that “the
motion for out-of-time appeal has become deeply entrenched.”
46 GACDL shares the disruption concern, characterizing the trial court
out-of-time appeal procedure as “one thread in Georgia’s Gordian
knot of criminal-appellate and post-conviction practice.”
We cannot say, however, that entrenchment of the trial court
out-of-time appeal procedure in Georgia weighs so heavily in the
stare decisis analysis that we should retain our erroneous
precedents. First, the actual number of precedents on the trial court
out-of-time appeal procedure in Georgia—i.e., cases holding that a
motion for out-of-time appeal in the trial court was a proper
procedure such that the case needs to be overruled if the trial court
out-of-time appeal procedure were eliminated—are few. That
limited universe of cases includes Rowland—our first real precedent
addressing and approving the trial court out-of-time appeal
procedure—and a handful of progeny cases, a fact the dissent glosses
over by shifting focus to the 14 cases that were docketed in our Court
last year after a trial court granted a motion for out-of-time appeal.15
15 We have identified only five cases—the last one decided more than 15
years ago—that appear expressly to endorse the filing of an out-of-time appeal
47 The dissent points to these cases, which reference trial court grants
of motions for out-of-time appeals in the first footnote of this Court’s
opinions recounting the procedural history of murder cases, and
contends that our trial court out-of-time appeal precedent “has
become deeply entrenched” because “it is regularly applied in a
significant number of cases.”
We acknowledge the value—at least in a case like this one—in
identifying potential disruption to the legal system that might result
if a precedent is overruled. We are not unmindful of the practice
that has built up around convicted defendants seeking motions for
out-of-time appeal in trial courts and of appellate courts applying
in the trial court and thus constitute precedent for purposes of a stare decisis analysis. See Carr v. State, 281 Ga. 43, 43-44 (635 SE2d 767) (2006) (extensively quoting Rowland and directing Carr that, “should she wish to appeal her convictions, she must file a request for an out-of-time appeal in the trial court”); Cody v. State, 277 Ga. 553, 554 (592 SE2d 419) (2004) (stating that Cody “has the option of applying for an out-of-time appeal in the court of conviction”); Fulton v. State, 277 Ga. 126 (587 SE2d 20) (2003) (“Fulton may seek an out-of-time appeal in the trial court.”); Wicks v. State, 277 Ga. 121, 122 (587 SE2d 21) (2003) (“If Wicks wishes to pursue appellate relief, he can seek an out-of-time appeal in the trial court.”), disapproved on other grounds, Pounds, 309 Ga. at 378 n.4; Porter v. State, 271 Ga. 498, 500 (521 SE2d 566) (1999) (“To obtain an out-of-time appeal, Porter must apply for that relief in the trial court . . . . ”), disapproved on other grounds, Pounds, 309 Ga. at 378 n.4. 48 Rowland and its progeny to decide cases following trial-court rulings
on motions for out-of-time appeal. As GACDL casts it, “the criminal
legal system has arranged itself around the availability of the direct,
out-of-time remedy.” But we are not willing to weight this type of
entrenchment over all other factors, because the regular application
of a procedural precedent—even in a “significant number of cases,”
as the dissent suggests—is not dispositive of a stare decisis analysis,
particularly where another procedure—the one we have explained
is exclusive—is available.
Nor is the second entrenchment-related point the dissent
makes dispositive: that when our out-of-time appeal precedents are
applied, “it often makes a substantial difference,” because when
such a motion is granted “it permits an appeal that would otherwise
be barred without the years-long delay of habeas.” To be sure, when
a trial court grants an out-of-time appeal, it allows a defendant to
proceed with an appeal that would otherwise be time-barred. But
that does not support the dissent’s entrenchment argument, because
a convicted defendant may obtain the same result by filing a petition
49 in a habeas court using the statutorily authorized procedure. That
procedure—habeas corpus—exists now and will continue to exist
even if we eliminate the trial court out-of-time appeal procedure.
The dissent’s stronger claim—which we address more fully
below as part of our workability analysis—is that motions for out-of-
time appeals in trial courts are quicker and more efficient than
habeas corpus proceedings. That may well be true in many cases.
But habeas corpus is the procedure the General Assembly has
established to provide the remedy for the unconstitutional
deprivation of the right to appeal; this Court has determined that
“habeas corpus is the exclusive post-appeal procedure available to a
criminal defendant who asserts the denial of a constitutional right,”
Mitchum, 306 Ga. at 883 (citation and punctuation omitted;
emphasis in original); and even if the alternate procedural vehicle
we created may result in requests for out-of-time appeals being
decided faster and more efficiently, that alone is not a reason to
retain that procedure, even if it has become “entrenched.”
(d) Workability
50 That brings us to workability. As the dissent notes and as we
discuss below, some aspects of the trial court out-of-time appeal
procedure we created may be more workable or even preferable (at
least in the view of some Justices) to the statutorily authorized
habeas corpus process. But there is a fundamental—and in our
view, insurmountable—workability problem with our precedents:
there is no end in sight to our Court being asked to fill in the details
of the trial court out-of-time appeal procedure we created. See
Harper, 286 Ga. at 217-218 (overruling prior precedent in part
because of workability problems stemming from the lack of “rules or
precedents guiding individuals in the filing of, or courts in their
consideration of,” the post-appeal procedure that our Court had
created in a prior case).
Administration of the Habeas Corpus Act, by contrast, does not
require judges to establish such rules in the first instance; the
General Assembly has already established them by statute. On that
point, the Habeas Corpus Act—the General Assembly’s chosen
51 procedure for remedying alleged violations of convicted defendants’
constitutional rights, including claims that a right to appeal was
frustrated because of a constitutional violation—establishes that
the superior court in the county of the defendant’s detention has
“exclusive jurisdiction” over the defendant’s habeas petition, OCGA
§ 9-14-43; contains requirements for what petitions must include,
OCGA § 9-14-44, and how they must be served, OCGA § 9-14-45;
establishes deadlines for answering a petition, OCGA § 9-14-47; and
lays out how hearings must operate, OCGA § 9-14-48, what the
habeas court must put in writing to support its judgment, OCGA § 9-
14-49, and how that judgment must be appealed, OCGA § 9-14-52.
The Act imposes definite time limits within which petitions must be
brought: it requires a defendant to challenge a felony conviction not
involving a death sentence within four years of “the conclusion of
direct review or the expiration of the time for seeking such review”
and to challenge a misdemeanor within one year, OCGA § 9-14-42
(c)—statutory limitations periods that are not subject to equitable
tolling, see Stubbs v. Hall, 308 Ga. 354, 369 (840 SE2d 407) (2020).
52 It provides for a statutory defense of laches, OCGA § 9-14-48 (e), and
contains a bar on successive habeas petitions, OCGA § 9-14-51.
Moreover, the Civil Practice Act, OCGA § 9-11-1 et seq., generally
applies to habeas corpus proceedings. See OCGA § 9-11-81; Mitchell
v. Forrester, 247 Ga. 622, 623 (278 SE2d 368) (1981) (“[T]he CPA
now applies to habeas corpus applications.”).16
Yet no corresponding requirements for motions for out-of-time
appeals in trial courts are clearly applicable—at least not from the
common law, statutes, or court rules, which do not establish or
recognize such motions. The only rules that govern the operation of
the trial court out-of-time appeal procedure are rules that trial
judges formulate and appellate judges approve, modify, or reject if
challenged. Every time that is done, judges again overstep their
16 Unlike in habeas proceedings, where the Civil Practice Act applies, we
have not clearly answered what, if any, statutory authority related to court proceedings applies to trial court out-of-time appeal proceedings. To the contrary, we have stated that courts and parties should look to the Habeas Corpus Act for guidance—at least with respect to issues related to laches—but even then we have not directly applied the Act’s statutory limitations to the trial court out-of-time appeal procedure. See Collier, 307 Ga. at 374-375. This unanswered question makes it more likely that legal questions about the limitations of the trial court out-of-time appeal procedure will be raised again in our Court. 53 authority and re-engage in a policy-making exercise that is typically
reserved for legislators. Faced with questions like whether to try to
mirror the requirements of the Habeas Corpus Act, follow
requirements for other types of motions filed in trial courts, or make
up rules we think are the best as a matter of policy, we have over
the years created or endorsed a hodge-podge of guidelines for the
trial court out-of-time appeal procedure on a case-by-case basis. See,
e.g., Collier, 307 Ga. at 373 (noting that “the body of case law
governing procedures applicable to . . . motions [for out-of-time
appeal in trial courts] is far less developed” than the Habeas Corpus
Act and habeas case law and that “we have . . . addressed defenses
to such motions [for out-of-time appeal] as the State has raised
them”). See also id. at 373 n.12 (citing prior cases applying the
doctrines of res judicata and collateral estoppel to motions for out-
of-time appeal in the trial court).17 And the reality is that we have
17 Unless we, as a matter of policy, import all of the requirements of the
Habeas Corpus Act into the trial court out-of-time appeal procedure, that procedure may allow a convicted defendant who seeks relief through a motion for out-of-time appeal in a trial court to avail herself of a completely different—
54 little idea what rules trial courts are applying, or if they are applying
whatever rules they have established with any degree of uniformity
or consistency. As Justice Ellington has observed, “by allowing out-
of-time appeals, we have, repeatedly, already substituted our policy
preferences for those of the General Assembly and allowed
defendants to skirt the legislatively-established habeas process.”
Schoicket, 312 Ga. at 839 (Ellington, J., dissenting in part).
For example, because no deadline or statute of limitation
expressly restricts a convicted defendant’s ability to file a motion for
out-of-time appeal in a trial court, in Collier the State argued that
the Court should “abolish the practice of allowing defendants to file
a motion for an out-of-time appeal in the trial court” to prevent
defendants from filing motions for out-of-time appeal years or
decades after their convictions, when the State may have lost the
evidence needed to defend against the motion. 307 Ga. at 369. The
Collier majority noted that “determining whether the out-of-time
and potentially less stringent—set of requirements than if she filed the very same claim as part of a petition for habeas corpus. 55 appeal process in the trial court should be maintained would involve
a complex stare decisis analysis” and that those “issues ha[d] not
been fully briefed” in that case. Id. at 376. The majority instead
concluded that a laches-like “prejudicial delay” defense could
potentially provide the State with a defense against unreasonably
delayed motions for out-of-time appeal filed in trial courts. Id. at
370 (“[W]e hold that the State may raise the defense of ‘prejudicial
delay’ to out-of-time appeal motions filed in the trial court.”). See
also id. at 374 (“When a defendant files a motion for an out-of-time
appeal in the trial court, the State may argue that the defendant’s
delay in doing so has unduly prejudiced the State’s ability to respond
to the motion.”); id. at 375 (“[T]he trial court may consider the time
periods, factors, and other criteria set out in the most analogous
limitation and laches provisions—those found in the Habeas Corpus
Act[.]”). Four Justices expressed doubt about that conclusion,
however, and concurred in the judgment of the prejudicial-delay
portion of the majority opinion only “to the extent that it correctly
observe[d] that none of our cases have held that the State cannot
56 assert a defense of prejudicial delay.” Id. at 382 (Peterson, J.,
concurring specially, joined by Blackwell, Boggs, and Bethel, JJ.).
How exactly a prejudicial-delay defense would work in these cases
is an open question, and the answer is anyone’s guess.18 What is
more certain is that this Court ultimately (and repeatedly) will have
to make up the details if we retain the trial court out-of-time appeal
procedure, which requires these sorts of questions to be answered by
judges.
The questions did not stop after Collier. If anything, Collier
begged even more questions, which Schoicket illustrates: the
defendant in that case asked us to decide whether we would
“logically extend” our holding in Collier, as Justice Peterson’s special
concurrence had hinted we might. In Schoicket, we were forced to
grapple with whether a granted out-of-time appeal not only
18 Justice Peterson goes a step further today in his dissent by suggesting
that, because the General Assembly added a laches defense to the Habeas Corpus Act in 2004 and did nothing to modify motions for out-of-time appeal in trial courts, laches does not apply to our judicially created procedure— meaning that a motion for out-of-time appeal may be filed decades after a final conviction. And Justice Ellington joins the dissent, even though he authored Collier. 57 authorizes a defendant to file what would otherwise be an untimely
appeal, but also to file an untimely motion to withdraw a guilty
plea—which would also allow the defendant to expand the record
that she could use to assert previously unraised claims. See
Schoicket, 312 Ga. at 825; Collier, 307 Ga. at 380 (Peterson, J.,
concurring specially).
We had held in Collier that whether a defendant “seeks an out-
of-time appeal from a final judgment of conviction entered following
a trial or following a guilty plea” did not matter, and we overruled
cases that held otherwise. See Collier, 307 Ga. at 366-367.
Nevertheless, in Schoicket we decided that the very same
distinction—whether a defendant was adjudicated guilty by trial
versus by entering a plea—actually did matter, because we did not
allow the defendant in that case, who had been granted an out-of-
time appeal after judgment of conviction was entered on her guilty
plea, the relief she sought: a motion to withdraw her guilty plea. See
Schoicket, 312 Ga. at 832; see also Boone, ___ Ga. at ___ (relying on
Schoicket to hold that “a grant of an out-of-time appeal would not
58 entitle Boone to pursue an otherwise-untimely motion to withdraw
a guilty plea”). Even though we had acknowledged that “permitting
such a motion would be a logical extension of our precedent that
invented certain post-conviction remedies,” and that the Court of
Appeals had done just that in Dawson v. State, 302 Ga. App. 842,
843 (691 SE2d 886) (2010), and Sosa v. State, 352 Ga. App. 637, 639
& n.1 (835 SE2d 695) (2019), we rejected the extension of our
precedent and overruled Dawson and Sosa. See Schoicket, 312 Ga.
at 833 n.9. We concluded that “we should not have invented those
remedies in the first place” and “decline[d] to invent additional
remedies that might further complicate our post-conviction
jurisprudence.” Id. at 826. See also id. at 837, 839 (Ellington, J.,
dissenting in part) (arguing that there is no “principled reason to
deny guilty-plea defendants access to the procedural tool we created”
and contending that we should “ensure that access to the
misbegotten procedure is provided in an even-handed manner” by
allowing defendants who are granted an out-of-time appeal to
withdraw their guilty pleas); Collier, 307 Ga. at 380 (Peterson, J.,
59 concurring specially) (noting that allowing defendants to move to
withdraw guilty pleas after being granted out-of-time appeals would
“appear to be merely a logical extension” of our out-of-time appeal
precedents).
These examples of the issues we have faced point to another
aspect of this workability problem: the lines we have drawn in our
trial court out-of-time appeal precedents are often based on
considerations of policy rather than law. The line we drew in
Schoicket—where we acknowledged that the defendant’s requested
extension of our out-of-time appeal precedents was logical and
anticipated by the Court, but nonetheless rejected it to avoid
“further complicat[ing] our post-conviction jurisprudence,” 312 Ga.
at 826—amply illustrates this concern. Indeed, we have already
admitted that “our inventions” in this area “have never purported to
be even-handed.” Id. at 832 (emphasizing that “a motion for out-of-
time appeal can be granted only if one particular kind of ineffective
assistance of counsel claim succeeds, and all sorts of other
ineffectiveness claims not raised on direct appeal can be brought
60 only in habeas”). The longer our trial court out-of-time appeal
precedents persist—and the more these issues are highlighted by
cases like Collier, Kelly, and Schoicket—the more likely it is that we
will have to continue to draw lines to define the procedure’s
boundaries, including to “retreat[ ] from ‘broad statements’” we have
made in some of our precedents and to “avoid dispensing
unwarranted windfalls.” Schoicket, 312 Ga. at 825 (acknowledging
that “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”).
In this regard, we have already identified two additional issues
that arise in the trial court out-of-time appeal procedure—how
claims of ineffective assistance of counsel may be presented, and
when defendants are legally entitled to appointed counsel—that will
likely require this Court at some point to provide answers about
apparent conflicts between existing precedent and practices that
appear to be common in the trial court out-of-time appeal procedure.
As the dissent points out, in some cases in which a convicted
61 defendant’s lawyer misses an appellate filing deadline inadvertently
and notices the oversight not long thereafter, it appears that the
lawyer files a motion for out-of-time appeal in the trial court
admitting his error, the State concedes that the motion should be
granted, and the trial court grants the motion. See, e.g., Waller v.
State, 311 Ga. 517, 518 n.1 (858 SE2d 683) (2021) (“Appellant filed
a motion for out-of-time appeal through trial counsel.”); Swan v.
State, 276 Ga. App. 827, 829 (625 SE2d 97) (2005) (“Trial counsel
filed a motion for an out-of-time appeal. . . .”); Brown v. State, 199
Ga. App. 856, 856 (406 SE2d 516) (1991) (“The record shows
defendant’s trial counsel filed a motion for out-of-time appeal. . . .”).
Asserting a claim of ineffective assistance in that way may be a
relatively fast and efficient means of getting the appellate process
moving again. But that process appears to conflict with this Court’s
precedent holding that a lawyer cannot assert his own ineffective
assistance. See, e.g., Hood v. State, 282 Ga. 462, 463 (651 SE2d 88)
(2007) (“Because a lawyer may not ethically present a claim that
he/she provided a client with ineffective assistance of counsel, a
62 claim of ineffective assistance of trial counsel cannot be pursued
unless trial counsel is no longer representing the convicted
defendant.”) (citation omitted; emphasis supplied). See also
Garland v. State, 283 Ga. 201, 203 & n.2 (657 SE2d 842) (2008)
(explaining that “[c]ounsel prosecuting an ineffective assistance
claim must be free to operate independently of the attorney whose
performance is in question” and that “Georgia law has thus
decisively rejected the position . . . that trial counsel is not only
competent to evaluate the ineffectiveness of his/her own
performance, but is ‘actually in a superior position to do so’”);
Delevan v. State, 345 Ga. App. 46, 49-51 (811 SE2d 71) (2018)
(vacating the trial court’s denial of defendant’s motion for an out-of-
time appeal filed by the lawyer who was allegedly ineffective,
concluding that “[t]he Supreme Court of Georgia has repeatedly held
that an attorney may not ethically present a claim that he provided
a client with ineffective assistance of counsel. It necessarily follows
that a claim of ineffective assistance of counsel may not be pursued
unless the counsel at issue is no longer representing the defendant
63 and, instead, the defendant either is represented by conflict-free
counsel or represents himself pro se.”) (citation and punctuation
omitted).
And there’s more. When questions arise about the propriety of
counsel raising an ineffective assistance claim, the trial court can
attempt to ensure that a new lawyer—one who does not have a
conflict of interest that precludes him from asserting his own
ineffectiveness—is appointed to represent the defendant. See, e.g.,
Garland, 283 Ga. at 203. But that creates yet another issue in the
out-of-time appeal context, because our precedent squarely holds
that a motion for out-of-time appeal is a proceeding as to which a
defendant is not entitled to the appointment of counsel. See, e.g.,
Davis v. State, 310 Ga. 547, 548 (852 SE2d 517) (2020) (‘“[B]ecause
a motion for an out-of-time appeal cannot be construed as part of a
criminal defendant’s first appeal of right, [the defendant] was not
entitled to the assistance of appointed counsel.’”) (quoting Pierce v.
64 State, 289 Ga. 893, 894 (717 SE2d 202) (2011)).19 And that leads to
the question of whether trial courts and public defenders abiding by
our precedent on a convicted defendant’s right to counsel should
appoint new counsel to handle motions for out-of-time appeal
asserting that the defendant was deprived of an appeal of right by
her prior counsel’s ineffective assistance.20 Despite this tension,
motions for out-of-time appeal appear to be granted routinely in this
situation. See, e.g., Clark v. State, 309 Ga. 566, 566 n.1 (847 SE2d
160) (2020) (“Clark filed a motion for an out-of-time appeal through
new counsel, which the trial court granted.”); Kidd v. State, 304 Ga.
19 As we discuss below, a defendant also has no right to appointed counsel
in a habeas corpus proceeding. We add that in describing the current state of the law, we do not mean to suggest that, as a matter of policy, the General Assembly cannot or should not provide funding for lawyers to be appointed for indigent defendants to pursue apparent violations of those defendants’ constitutional rights, even when such funding is not constitutionally required. But policy decisions such as those must be left to the Legislative Branch, and not made by judges.
20 Likewise, if a new lawyer is appointed to take over a convicted defendant’s appeal as of right and discovers that previous counsel missed the jurisdictional deadline to file a motion for new trial or a notice of appeal, the public defender arguably can decline to extend representation on the basis that the defendant is not entitled to it, and the trial court would have a basis to uphold that decision. 65 543, 543 n.1 (820 SE2d 46) (2018) (“Kidd filed another motion for an
out-of-time appeal, this time with appointed counsel.”).
As with the other examples of unanswered questions
mentioned above, we do not know with certainty what the resolution
of these issues would be if presented properly in a case before this
Court. But it seems likely that at some point, based on our
precedent, a trial court will dismiss a motion for out-of-time appeal
in which a lawyer asserts his own ineffectiveness, or uphold a public
defender’s decision not to appoint new counsel for a convicted
defendant whose trial counsel was constitutionally ineffective in
failing to file a notice of appeal; the defendant will appeal that
ruling; and this Court will have to decide what to do. We could apply
our precedent as it would seem to apply in other contexts, and
thereby undermine many of the benefits of the trial court out-of-time
appeal procedure on which the dissent relies heavily, or we could
endorse additional deviations from precedent to maintain what we
consider to be preferable policy results for the procedure we created.
What this Court cannot do, as long as the motion for out-of-time
66 appeal procedure is maintained, is avoid making decisions about
these sorts of issues.
The entire Court agrees that we erred, and that we overstepped
our limited constitutional role, by creating the trial court out-of-time
appeal procedure. But we cannot simply wash our hands of that
error; the need to determine the details of the procedure we created
will require us (and trial judges) to perpetually overstep our judicial
bounds. That makes our precedent unworkable, as this Court has
repeatedly held in similar situations. See Duke, 306 Ga. at 186 n.4
(that the precedent at issue was “in need of refining only emphasizes
the unworkable nature of [the precedent] as it was decided”);
Harper, 286 Ga. at 217-218 (prior precedent that created the motion
to vacate a criminal conviction, which was “a new post-appeal
procedure for challenging a criminal conviction, . . . proved
unworkable inasmuch as Georgia law is silent as to the procedural
framework and rules applicable to this newly created remedy,”
especially given that “[u]nlike the myriad rules governing previously
recognized and statutorily created procedures for challenging a
67 criminal conviction, there are no rules or precedents guiding
individuals in the filing of, or courts in their consideration of, post-
appeal motions to vacate a criminal conviction”).
The dissent pushes back, contending that we should not focus
only on the workability of the precedents we are considering
overruling, and that we should instead compare the workability of
the current, erroneous precedents with the workability of the
alternative: here, the statutory habeas scheme that will function as
the exclusive procedure for convicted defendants to assert the denial
of constitutional rights if the trial court out-of-time appeal procedure
is eliminated.21
21 We note that, although this Court has never held that this type of
comparison is a required part of our stare decisis analysis, such a comparison is not necessarily inconsistent with our usual stare decisis analysis; if we examine the workability of one precedent, we at least implicitly comment on the workability of its alternatives. And we have even drawn explicit comparisons in some prior stare decisis analyses. See, e.g., Burns, 306 Ga. at 124 (“[W]e cannot say that any ‘workability’ of [the existing precedent] is sufficient to preserve the precedent. Although [that precedent’s] bright-line test is not ‘unworkable,’ neither is the alternative—applying the familiar and usual rules of evidence, which trial courts routinely do every day.”); Flowers, 300 Ga. at 833 (“[A]lthough the local-ordinance requirement is not unworkable, it is not as workable as the correct rule.”); Lejeune v. McLaughlin, 296 Ga. 291, 298 (766 SE2d 803) (2014) (“[T]he usual rule in habeas cases—that the
68 In that vein, the dissent compares the current out-of-time
appeal system to a world in which only habeas exists and argues
that the current out-of-time appeal system is more workable. These
arguments, many of which GACDL also highlights, can be organized
into three primary claims: (1) that the current out-of-time appeal
system is more efficient for resolving a criminal defendant’s claim
that ineffective assistance of trial counsel resulted in a loss of the
defendant’s appeal as of right; (2) it is more likely under the current
system that an indigent defendant will have access to counsel when
filing the defendant’s claim of ineffective assistance of counsel; and
(3) eliminating the out-of-time appeal procedure will result in a
significant shift in workload among government entities—especially
with respect to district attorney offices, the Attorney General’s
office, public defenders, and judges. None of those arguments is
petitioner bears the burden of proof—is more workable than the rule of Purvis and its progeny.”); Ga. Dept. of Nat. Resources v. Ctr. for a Sustainable Coast, 294 Ga. 593, 602 (755 SE2d 184) (2014) (“[A] bright line rule that only the Constitution itself or a specific waiver by the General Assembly can abrogate sovereign immunity is more workable than IBM v. Evans’ scheme allowing judicially created exceptions.”). 69 availing.
With respect to its first set of arguments, the dissent contends
that the out-of-time appeal procedure is more efficient because,
among other reasons, the same judge who presided over the
defendant’s trial can decide the motion for out-of-time appeal, which
in turn avoids having to transfer the record between a trial court
and a habeas court and also reduces travel costs for everyone
involved. These practical observations may be correct, but the
differences between the Habeas Corpus Act and our out-of-time
appeal procedural vehicle reflect policy choices the General
Assembly made in enacting the former. To the extent the Habeas
Corpus Act can or should be improved to make post-conviction
proceedings more efficient, or a trial court out-of-time appeal process
for certain cases should be established, the General Assembly can
make those changes legislatively. See Duke, 306 Ga. at 186
(recognizing that if “the General Assembly determines that the
established framework does not adequately safeguard the interests
of litigants in particular classes of cases, it is for that body to change
70 it”). Cf. OCGA § 9-14-43 (amending the Habeas Corpus Act in 2004
to require petitioners not in custody or in federal or foreign custody
to file habeas petitions in the superior court of the county in which
they were convicted).
The dissent similarly argues that the trial court out-of-time
appeal procedure is faster than habeas—particularly when counsel
has missed a jurisdictional filing deadline by only a few days or
weeks, the parties involved in the case are willing to consent to an
out-of-time appeal, and the defendant is able to proceed to her
motion for new trial or appeal as of right expeditiously.22 That, too,
may be true, although—as discussed above—it appears to be
inconsistent with our precedent on counsel raising her own alleged
ineffectiveness. But putting aside the anomaly of trial courts
permitting counsel to raise their own ineffective assistance against
22 We note that, to the extent that the filing deadline is missed by a short
period of time and the term of court in which the judgment of conviction was entered still has not expired, the trial court may set aside and reenter the judgment to allow a timely post-trial motion or appeal to be filed. See Gray, 310 Ga. at 262. The availability of this historical practice, which is rooted in the common law, should alleviate some of the dissent’s concern about ineffective counsel missing jurisdictional deadlines by just a few days or weeks. 71 themselves, there are also many instances in which out-of-time
appeals are sought in trial courts not to quickly correct oversights,
but rather to appeal years- or decades-old convictions. See, e.g.,
Collier, 307 Ga. at 374 (“[S]ome of our out-of-time appeal cases have
involved long delays after conviction.”); id. at 374 n.14 (citing two
cases where the lapses of time were 15 and 26 years); Sims v. State,
312 Ga. 303, 304 (862 SE2d 507) (2021) (“[A]lmost seven years later,
Sims filed a pro se motion for an out-of-time appeal.”); Harvey, 312
Ga. at 265 (“Around 15 years later, Harvey filed a motion for an out-
of-time appeal through new counsel.”); Davis, 310 Ga. at 548 (“Davis
filed a pro se motion for an out-of-time appeal” over 20 years after
his conviction). These cases not only ignore the statutory time limits
the Habeas Corpus Act imposes on the ability to seek the same relief
in habeas—a legislative choice the General Assembly made to
promote the finality of convictions; they also raise additional
logistical concerns, such as the availability of witnesses and
evidence to resolve the ineffective-assistance-of-counsel claim
underlying the motion. See, e.g., Schoicket, 312 Ga. at 837
72 (Ellington, J., dissenting in part) (acknowledging the State’s delay-
related concerns such as “lost or destroyed records and dead or
forgetful witnesses” in the context of motions to withdraw guilty
pleas being filed pursuant to granted out-of-time appeals); Collier,
307 Ga. at 375 (“[E]liminating post-conviction delay before appeal is
an important interest in our criminal justice system.”).
The dissent also contends that defendants often have more
“access to counsel” in the trial court out-of-time appeal procedure
than they do in habeas. But that concern is largely undermined by
the dissent’s acknowledgment that indigent defendants do not have
a right to counsel in either scenario. See Davis, 310 Ga. at 548
(“‘Because a motion for an out-of-time appeal cannot be construed as
part of a criminal defendant’s first appeal of right, defendant was
not entitled to the assistance of appointed counsel.’”) (quoting Pierce,
289 Ga. at 894) (punctuation omitted); Gibson v. Turpin, 270 Ga.
855, 857 (513 SE2d 186) (1999) (“It is well settled that there is no
federal or state constitutional right to appointed counsel in Georgia
73 habeas corpus proceedings.”).23 Indeed, the dissent’s contention that
indigent defendants, “as a practical matter,” have counsel more
frequently in the trial court out-of-time appeal procedure than in
habeas “when a motion is filed to correct a missed deadline” seems
to be a veiled reference to the issues we have discussed above:
counsel asserting claims of ineffective assistance against themselves
or being appointed in proceedings where the defendants have no
entitlement to appointed counsel. These practices may be
challenged now that they have been highlighted.
Finally, the dissent expresses concern that eliminating the
alternative trial court out-of-time appeal procedure and relying
exclusively on habeas corpus would necessitate a significant shift in
23 We share the dissent’s concern that, if motions for out-of-time appeals
are eliminated in trial courts, some pro se defendants—or even attorneys who are familiar with the trial court out-of-time appeal procedure—may not initially appreciate the risk of waivers and bars to successive habeas claims they may face if they file a habeas petition that complains only of the ineffective assistance of counsel that resulted in the defendant’s frustrated appeal, rather than all of the defendant’s constitutional claims. But the requirements of habeas corpus are well established, both in statute and in case law interpreting it, so it rings hollow to suggest that being required to use the exclusive statutory remedy that the General Assembly established decades ago is somehow a trap for the unwary. 74 resources within the criminal justice system. The dissent notes, for
example, that motions for out-of-time appeals that are typically
heard by trial courts and handled by attorneys from district attorney
offices would instead be heard by habeas courts and handled by
attorneys from the Attorney General’s office, and projects that those
changes will result in staffing and workload (and thus financial)
implications.
We are certainly mindful of the resources required for
government entities—including courts—to get their work done. But
resource considerations such as these must be directed to the
General Assembly, whose constitutional duty includes
appropriating funds for the operations of our State’s government.
See Ga. Const. of 1983, Art. III, Sec. IX, Pars. II, III. See also
Schoicket, 312 Ga. at 839 (Ellington, J., dissenting in part) (“The
General Assembly is fully capable of resolving how to allocate funds
to make the system work. Indeed, the General Assembly would be
freed from having to appropriate, in addition to funds to make the
post-conviction system work as it intended when it adopted the
75 Habeas Corpus Act over 50 years ago, additional substantial funds
to make our judicially-created parallel system work.”) (emphasis in
original). Moreover, representatives of two of the primary
stakeholders who would be affected by any anticipated shift in
workload—the Attorney General and the District Attorney—have
asked this Court to overrule our trial court out-of-time appeal
precedents, specifically arguing that those precedents are
unworkable. We should credit the views of the constitutional
officers who have responsibility for both the trial court and habeas
out-of-time appeal processes over our own views of their abilities to
discharge their duties in a world where motions for out-of-time
appeals in trial courts do not exist.
The dissent greatly underestimates the unworkability of the
current trial court out-of-time appeal procedure while overvaluing
its own speculation about the disruption to the legal system that will
ensue if motions for out-of-time appeals in trial courts are
eliminated. The workability factor therefore weighs in favor of
overturning our trial court out-of-time appeal precedents, and for
76 doing so now.
(e) We Overrule our Precedents and Eliminate the Judicially Created Motion for Out-of-Time Appeal Procedure in Trial Courts
In light of the analysis conducted above, we conclude that stare
decisis does not preclude overruling our precedents that created or
endorsed the trial court out-of-time appeal procedural vehicle.
Accordingly, we overrule Rowland v. State, 264 Ga. 872, 874-875
(452 SE2d 756) (1995), and any other decisions that approved the
judicially created motion for out-of-time appeal in trial courts, to the
extent that they endorsed this procedure. We also disapprove King
v. State, 233 Ga. 630, 630 (212 SE2d 807) (1975), Furgerson v. State,
234 Ga. 594, 595 (216 SE2d 845) (1975), and any other decisions that
have allowed out-of-time appeal claims to be litigated in trial courts
without addressing the propriety of that procedure. We note that in
overruling and disapproving these cases, we do not undo what has
been done with respect to out-of-time appeals that already have been
granted where the ensuing appeal has concluded. And that
important point leads us to an analysis of how today’s holding
77 applies to this case and others going forward.
4. Our Holding Applies to this Case, Cases in the Appellate “Pipeline,” and Future Cases
Amicus curiae GACDL contends that if this Court concludes it
must eliminate out-of-time appeal motions in trial courts, it should
announce its intention to do so “well ahead of the change” and “set
a date certain after which no motion for out-of-time appeal may be
filed.” In short, GACDL asks us to apply any new rule we announce
prospectively.24 But we decline that proposal because prospective
application would run afoul of the “pipeline” approach Georgia has
long followed for the application of new rules of criminal procedure
to criminal cases that are pending on direct review or not yet final.
In Taylor v. State, 262 Ga. 584 (422 SE2d 430) (1992), this
Court held that
[i]n order to ensure that similarly situated defendants are
24 To support its request, GACDL cites only Davenport v. State, 309 Ga.
385, 399 (846 SE2d 83) (2020). But our decision in Davenport pertained to this Court’s decision to change a court practice—sua sponte review of evidentiary sufficiency in murder appeals—and did not endorse or otherwise authorize limiting this Court’s holdings in criminal cases to prospective application. See id.
78 treated similarly and to maintain the integrity of the judicial process while still providing finality, . . . it [is] . . . appropriate to adopt the “pipeline” approach, that is, that a new [state] rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.
Id. at 586.25 We have consistently recognized or followed this
holding regardless of whether the judicial decision setting forth a
new state rule of criminal procedure was based on a statute or on
decisional law. See, e.g., Mobley v. State, 265 Ga. 292, 294 (455 SE2d
61) (1995); Smith v. State, 268 Ga. 196, 201 (486 SE2d 819) (1997);
Smith v. State, 268 Ga. 860, 861 & n.10 (494 SE2d 322) (1998);
Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001); Green v.
State, 279 Ga. 455, 456 (614 SE2d 751) (2005); Stubbs, 308 Ga. at
25 We note that a different rule applies to cases in habeas corpus. See Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001) (clarifying that a new state rule of criminal procedure “w[ould] not be applied to convictions challenged on habeas corpus”); Chatman v. Brown, 291 Ga. 785, 788 (733 SE2d 712) (2012); Turpin v. Todd, 268 Ga. 820, 830-831 (493 SE2d 900) (1997). We also note that the Georgia rule regarding retroactive application of new holdings in civil cases is less settled. Compare Findley v. Findley, 280 Ga. 454, 460 (629 SE2d 222) (2006) (“[W]e decline to adopt a rule of universal retroactivity in all civil cases.”) with Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 740-744 (691 SE2d 218) (2010) (Nahmias, J., concurring specially, joined by Carley, P. J., and Hines, J.).
79 362 n.11.26
Neither Cook nor GACDL argues that we should overrule
Taylor and its progeny, let alone engages in a stare decisis analysis
of that precedent. Indeed, neither Cook nor GACDL argues that our
holding in this case is somehow not the sort of judicial decision that
is governed by Taylor or offers a compelling reason to reconsider
Taylor or its progeny. See Collins v. State, 312 Ga. 727, 735 (864
SE2d 85) (2021) (appellant “does not offer any compelling reason to
abandon precedent that has been a settled part of our law for 35
years, is straightforward in its application, and [is] not obviously
unsound”). We therefore decline the invitation to apply today’s
holding only prospectively. Instead, pending and future motions for
26 A recent case provides another good example: in Seals v. State, we held
that a trial court’s dead-docketing a count of an indictment left that count “pending in the court below” for purposes of OCGA § 5-6-34 (a) (1), thus preventing an appeal of the case unless the defendant followed interlocutory appeal procedures. See Seals, 311 Ga. at 739. That holding was applied to Seals’s case, and we immediately began applying it to dismiss criminal appeals that were filed in our Court when one or more of the counts in the case had been dead-docketed—even when the notice of appeal in the case was filed before Seals was decided. See, e.g., Favors v. State, S21A0328 (June 29, 2021); Scott v. State, S21A0507 (June 29, 2021); Drennon v. State, S21A1139 (Aug. 6, 2021). 80 out-of-time appeals in trial courts should be dismissed, and trial
court orders that have decided such motions on the merits—like the
one in this case—should be vacated if direct review of the case
remains pending or if the case is otherwise not final. See Brooks v.
State, 301 Ga. 748, 752 (804 SE2d 1) (2017) (“Because the trial court
decided the merits of a motion it lacked jurisdiction to decide, we
vacate the trial court’s order and remand with instructions to
dismiss.”).
5. Conclusion
We are faced with two choices in this case: We can overrule our
trial court out-of-time appeal precedents, return to the habeas
corpus process the General Assembly established for seeking post-
conviction relief of this sort, and—to the extent that procedure is
problematic—allow the General Assembly to fix any flaws by
statute. Or we can retain our erroneous trial court out-of-time
appeal precedents, maintain an alternative procedure for obtaining
post-conviction relief for this one type of constitutional claim, and
perpetuate our roles of judges-as-legislators who must continue to
81 establish by judicial opinion the rules for the procedural vehicle we
created. In light of the analysis conducted above, we choose the
former.
We hold that there was and is no legal authority for motions
for out-of-time appeal in trial courts and that the out-of-time appeal
procedure allowed in King and Furgerson, approved in Rowland,
and followed in other cases, is not a legally cognizable vehicle for a
convicted defendant to seek relief for alleged constitutional
violations. Our holding applies to this case and to all cases that are
currently on direct review or otherwise not yet final.
Accordingly, the trial court was without jurisdiction to decide
Cook’s motion for out-of-time appeal in this case, and “because the
trial court’s order plainly shows that it denied” the motion “on the
merits,” Bonner v. State, 310 Ga. 426, 428 (851 SE2d 578) (2020),
the trial court’s order must be vacated and the case remanded to the
trial court with direction that the motion be dismissed. See
McDaniel, 311 Ga. at 373 (“[W]hen a trial court is presented with a
motion that it lacks jurisdiction to decide and denies the motion
82 solely on the merits, we vacate the trial court’s order and remand
with instructions to dismiss the motion.”); Brooks, 301 Ga. at 752.
Cook’s remedy, if any, lies in habeas corpus.
Judgment vacated and case remanded with direction. All the Justices concur, except Boggs, P. J., who concurs specially in Division 3 (c) and (d), and Peterson, Bethel, and Ellington, JJ., who dissent.
83 S21A1270. COOK v. THE STATE.
LAGRUA, Justice, concurring.
I write separately to emphasize that this matter presents a
challenging question of law with a fairly straightforward answer.
The question is whether a criminal defendant, who has alleged that
she has been deprived of an appeal of right due to ineffective
assistance of counsel, may seek an out-of-time appeal as her remedy
in the trial court instead of pursuing her remedy through habeas.
The answer is no.
The majority opinion and the dissent agree that this Court’s
creation of the out-of-time appeal procedural vehicle in the trial
court was unsupported by sound reasoning or relevant authority.27
Where we part ways is on the question of whether stare decisis
27 In addition, as noted by the majority opinion:
[A]n unusual aspect of this case is that neither the State nor any of the amici curiae—which represent the views of both prosecutors (PAC) and criminal defense lawyers (GACDL)—contends that our judicial decisions creating or endorsing the trial court out-of-time appeal procedural vehicle are supported by sound reasoning or relevant authority. Maj. Op., p. 488. 84 favors the retention of the out-of-time appeal procedure in the trial
court, and I concur with the majority opinion that it does not.
Under the doctrine of stare decisis, “courts generally stand by
their prior decisions, because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Pounds v. State, 309 Ga.
376, 382 (3) (846 SE2d 48) (2020) (citation and punctuation omitted).
“Nevertheless, when governing decisions are unworkable or are
badly reasoned, this Court has never felt constrained to follow
precedent. Stare decisis is not an inexorable command; rather, it is
a principle of policy and not a mechanical formula of adherence to
the latest decision.” Woodard v. State, 296 Ga. 803, 812 (3) (b) (771
SE2d 362) (2015) (citation and punctuation omitted). As explained
in the majority opinion, the stare decisis factors include: (1) the
soundness of our precedents, which we all agree are entirely
unsound; (2) the age of the precedents, which are not especially old;
(3) the reliance interests involved, including that our precedents
85 have established a procedural right rather than a substantive one;
and (4) the workability of the procedure, including that the
parameters of the procedure need continual judicial revision. I agree
with the majority opinion that these factors do not weigh in favor of
keeping a procedure that we “created out of whole cloth” and which
helped lead to “a tangled mess of post-conviction jurisprudence.”
Collier v. State, 307 Ga. 363, 379 (834 SE2d 769) (2019) (Peterson,
J., concurring specially).
As this Court initially held correctly in Neal v. State, 232 Ga.
96 (205 SE2d 284) (1974), in the Habeas Corpus Act of 1967, the
General Assembly established habeas corpus as the procedure for a
criminal defendant who alleges that she was deprived of her right to
appeal because of her counsel’s alleged ineffective assistance. And
“it is not the job of judges to usurp that [legislative] power . . . by
rewriting laws enacted by the people’s democratically elected
representatives.” Barrow v. Raffensperger, 308 Ga. 660, 692 (842
SE2d 884) (2020) (Melton, C. J., concurring). Accordingly, I agree
with the majority opinion that Cook’s remedy, if any, lies in habeas
86 corpus. If the General Assembly takes issue with the exclusiveness
of the procedure it has created, it is incumbent upon the legislature
to fashion a new procedure.
I am authorized to state that Justice McMillian joins in this
concurrence.
87 BOGGS, Presiding Justice, concurring specially in part.
I agree with most of what is said in the majority opinion and
concur fully in the judgment and in Divisions 1, 2, 3 (a), (b), and (e),
4, and 5. I do not necessarily agree with all that is said in Division 3
(c) and 3 (d), however, so I concur specially in those parts of the
opinion.
88 PETERSON, Justice, dissenting.
The majority today overrules decades of non-constitutional
precedent recognizing a trial court power that is entrenched within
our system, it does so without a clear sense of the likely
consequences, and it does so while overreading some of our
precedents in a way that would prohibit the General Assembly from
fixing at least some adverse consequences. If stare decisis means
anything, it should preserve longstanding and oft-applied non-
constitutional precedent at least until we know the effect of
overruling. I respectfully dissent from the majority’s refusal to wait
for that day.
As an initial matter, I should note that I agree with much of
the majority’s opinion. I agree that our approval of the motion for
out-of-time appeal happened without analysis or the articulation of
a proper legal basis. I don’t dispute that we held in Neal v. State,
232 Ga. 96 (205 SE2d 284) (1974), that the habeas statute provided
the exclusive remedy for claims that a right to appeal was frustrated
89 by ineffective assistance of counsel.28 I agree that the motion for out-
of-time appeal has contributed to the complexities of our tangled
mess of a post-conviction litigation process. And I agree that we did
something we should not have nearly 50 years ago when we ignored
our decision in Neal in acknowledging a stand-alone motion for out-
of-time appeal. Indeed, I’ve already said as much. See Schoicket v.
State, 312 Ga. 825, 825 (865 SE2d 170) (2021); Collier v. State, 307
Ga. 363, 379-382 (834 SE2d 769) (2019) (Peterson, J., concurring
specially).
But concluding that our decades-old precedent was misguided
28 Whether Neal was rightly decided is a closer question. Neal did no
statutory construction in support of its holding that the habeas corpus statute precludes a motion for out-of-time appeal in the trial court, and the habeas statute itself contains no text supporting such a proposition. The closest the statute gets is a provision that states that “this article provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court of record,” OCGA § 9-14-41 (emphasis added). Neal did not identify the similar text in effect at the time as supporting its conclusion, and a motion for out-of- time appeal does not seek a writ of habeas corpus. And the only other cases the majority cites for this proposition, State v. Smith, 276 Ga. 14 (573 SE2d 64) (2002) and Mitchum v. State, 306 Ga. 878 (834 SE2d 65) (2019), hold only that habeas is the exclusive remedy for post-appeal ineffectiveness claims. Of course, the whole point of an out-of-time appeal motion is that the defendant has not yet had her appeal. 90 is not sufficient to reject it. Given the importance of stare decisis, I
cannot join the majority in ripping the motion for out-of-time appeal
out of our post-conviction system’s “tangled mess.” Collier, 307 Ga.
at 379) (Peterson, J., concurring specially). In a footnote in
Schoicket, I observed that such a step might be appropriate. See 312
Ga. at 830 (1) n.6. But the extensive briefing and argument in this
case has convinced me otherwise. The motion for out-of-time appeal
is more entrenched in our legal system than I had realized, and the
policy implications of reversing course now are beyond our Court’s
ability even to understand fully today, much less solve. The majority
dismisses my discussion of those implications as speculative. I
agree; neither I nor the majority has a full sense of the effect of
reversing course, and so speculation is the best we can do. But
respectfully, the majority’s response does not help its case; we
shouldn’t overrule decades of precedent without more than
speculation about the effects of such a move. In my view, stare
decisis exists for cases like this one, and I would retain our incorrect
precedent as the lesser of two evils.
91 1. Stare decisis is a question of judicial policy, not an objective formula.
Whether stare decisis should preserve a legally incorrect
precedent is a question of policy, not of law. See State v. Jackson,
287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“[S]tare decisis is not an
inexorable command, nor a mechanical formula of adherence to the
latest decision. Stare decisis is instead a principle of policy.” (citation
and punctuation omitted)). That policy question weighs the value of
having an issue decided against the value of deciding it right. Almost
always, questions of policy are for the other two branches of
government. But stare decisis is that rare kind of policy that — since
the very beginning of our Court — we have consistently understood
to be within the judicial power to apply. See, e.g., Leary v. Durham,
4 Ga. 593, 601 (1848) (observing in case involving property rights
that “where a rule of law has been firmly established for half a
century[ ] at least, though originally, perhaps, on mistaken or
erroneous principles, and no greater evil is to be apprehended from
an adherence to it, than may be expected from a departure from it,
that stare decisis ought to be our motto”). 92 Questions of policy often leave more room for disagreement
than questions of law. There are only so many possible meanings
legal text can have, and one meaning is almost always objectively
more correct than the other possibilities. But there are many
different ways to approach the kinds of policy questions that stare
decisis presents. And so it is here. That the members of this Court
disagree over whether to retain our prior precedent creating motions
for out-of-time appeals does not mean that some of us are applying
the law unfaithfully. It simply means that, in our reasoned exercise
of prudential judgment, we arrive at different conclusions.
Understanding stare decisis as a matter of judicial policy, our
primary precedent setting the framework for deciding questions of
stare decisis does not limit us to an exhaustive list of factors to
consider. Rather, we have framed this as a balancing of
considerations in which we consider factors “such as” — not limited
to — “the age of the precedent, the reliance interests at stake, the
workability of the decision, and, most importantly, the soundness of
its reasoning.” Jackson, 287 Ga. at 658 (5). The United States
93 Supreme Court precedent on which our framework is based is
consistent with that understanding. See Montejo v. Louisiana, 556
U.S. 778, 792-797 (129 SCt 2079, 173 LE2d 955) (2009) (noting
relevant factors “include” age, reliance interests, soundness of
precedent, and workability before weighing the “marginal benefits”
of the prior rule “against its substantial costs” to conclude that it
“does not pay its way” (citation and punctuation omitted)).
Apart from the four factors identified in Jackson, we have
identified other considerations that are quite germane to the
question before us in this case. We have made clear that stare decisis
applies with greater force to statutory precedents than to
constitutional precedents, as it is more difficult for the legislature to
undo a constitutional decision. Compare, e.g., Abernathy v. City of
Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998) (“Even those who regard
‘stare decisis’ with something less than enthusiasm recognize that
the principle has even greater weight where the precedent relates to
interpretation of a statute.” (citation and punctuation omitted)),
with Olevik v. State, 302 Ga. 228, 245 (2) (c) (iv) (806 SE2d 505)
94 (2017) (“[S]tare decisis carries less weight when our prior precedent
involved the interpretation of the Constitution, which is more
difficult than statutory interpretation for the legislative process to
correct. This doesn’t mean that we disregard stare decisis
altogether, though; what it actually means is that the first stare
decisis factor (soundness of reasoning) becomes even more critical.
The more wrong a prior precedent got the Constitution, the less
room there is for the other factors to preserve it.” (citation omitted)).
Another important consideration in determining whether to
retain prior precedent is the extent to which it has become
entrenched in the legal system — meaning, in a narrow sense, that
its relevant holding has been applied frequently. See, e.g., Frett v.
State Farm Employee Workers’ Compensation, 309 Ga. 44, 60 (3) (c)
(844 SE2d 749) (2020) (considering the extent to which a precedent
is “entrenched” in our jurisprudence by examining how often and
how recently it has been cited, particularly for its relevant holdings).
Although this concept of entrenchment can include the age of the
precedent, the extent to which others have relied on it, and its
95 workability, it is not limited to those categories. Understanding
entrenchment more broadly, it is important that we consider
potential disruption to the legal system that might be caused by
suddenly jettisoning a particular precedent. The majority criticizes
me for focusing too much on this idea. But there’s little else
warranting much attention. We don’t particularly disagree on the
correctness of the creation of the motion for out-of-time appeal. And
the other Jackson factors either aren’t terribly meaningful (age),29
or are encompassed within my treatment of entrenchment (reliance
and workability).
2. In my view, stare decisis counsels that we retain our
29 Indeed, once we’ve determined that a decision was unsound, the other
Jackson factors never seem to be particularly meaningful. Since 2010, our Court has tended to recite the Jackson “four-factor test” consistently, and just as consistently overrule precedent after woodenly ticking through those factors. See, e.g., Frett, 309 Ga. at 63-64 (Peterson, J., dissenting) (noting that every time an opinion explicitly applied the Jackson test even as to statutory precedent, we overruled the precedent). The majority responds by reiterating the Frett majority’s response: it’s “unsurprising” that the Court does extensive analysis of stare decisis “mostly” in cases where the Court overrules precedent. The word “mostly” is critical to that argument, and it is wrong. The Court doesn’t do stare decisis analysis “mostly” in cases overruling precedent, it does stare decisis analysis exclusively in cases overruling precedent. The majority does not identify a single case in which we have concluded a precedent of ours was unsound, but nevertheless determined that stare decisis warranted retaining that precedent. 96 current rule allowing trial courts to consider motions for out-of-time appeal.
Here, we are dealing with the sort of non-constitutional
precedent to which stare decisis applies more strongly. The
precedent at issue here is of the sort that the General Assembly
might easily alter or eliminate, and thus eliminating that precedent
ourselves should give us greater pause. Although the majority
opinion posits that stare decisis applies with less force here because
Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995), and its pre-
Collier progeny ignored the relevant statutory text, I’ve already
explained that Neal did not engage with the text of the habeas
statute, either.
As noted above, I don’t dispute Neal’s holding. But the majority
opinion’s focus on the soundness of the reasoning (or lack thereof) in
the decisions that subsequently deviated from that holding, while
important, is only the beginning of the application of stare decisis.
“[S]tare decisis does not even begin to apply until we doubt the
correctness of a previous precedent.” Frett, 309 Ga. at 65 (Peterson,
J., dissenting). If we believe a precedent to be correct, we simply 97 apply it and stop there. But if we doubt the correctness of the
precedent, we do not simply overrule that precedent without
consideration of other factors. “[I]f stare decisis is to mean
something, we need more than that to overrule a statutory
precedent.” Id.
(a) The motion for out-of-time appeal plays a significant role in our legal system.
Turning to those other considerations, they include the extent
to which the precedent has become entrenched in our legal system.
And here, nearly 50 years after it first appeared in our case law, the
motion for out-of-time appeal has become deeply entrenched, at least
in the senses that (1) it is regularly applied in a significant number
of cases and (2) when it is applied, it often makes a substantial
difference — when the motion is granted, it permits an appeal that
would otherwise be barred without the years-long delay of habeas.
Thus, although I suggested otherwise in Schoicket, the briefing and
argument in this case has convinced me that jettisoning our
precedent here could be enormously disruptive.
Undoubtedly, our precedent allowing out-of-time appeals 98 affects a significant number of cases. This Court entertained appeals
of murder convictions enabled by granted motions for out-of-time
appeals at least 14 times last year alone.30 A similar number for the
Court of Appeals is not readily ascertainable; that court does not
systematically report the procedural history of each criminal case it
decides in the same way that we do in our murder cases (or, for that
matter, publish all of its opinions as we do). But if a similar
proportion of their criminal appeals arise from granted motions for
out-of-time appeal (as seems reasonable to suppose), the true annual
30 It is our practice in direct murder appeals to include the case’s procedural history in our opinion’s first footnote. At least 14 such footnotes in 2021 indicated a granted motion for out-of-time appeal. See Williams v. State, 312 Ga. 386, 386 n.1 (863 SE2d 44) (2021); Baker v. State, 312 Ga. 363, 363 n.1 (863 SE2d 55) (2021); Walker v. State, 312 Ga. 332, 332 n.1 (862 SE2d 542) (2021); Thompson v. State, 312 Ga. 254, 254 n.1 (862 SE2d 317) (2021); Walker v. State, 312 Ga. 232, 232 n.1 (862 SE2d 285) (2021); Williams v. State, 312 Ga. 195, 195 n.1 (862 SE2d 108) (2021); Sullivan v. State, 311 Ga. 835, 835 n.1 (860 SE2d 576) (2021); Holmes v. State, 311 Ga. 698, 698 n.1 (859 SE2d 475) (2021); Rogers v. State, 311 Ga. 634, 634 n.1 (859 SE2d 92) (2021); Felts v. State, 311 Ga. 547, 547 n.1 (858 SE2d 708) (2021); Waller v. State, 311 Ga. 517, 518 n.1 (858 SE2d 683) (2021); Abbott v. State, 311 Ga. 478, 478 n.1 (858 SE2d 696) (2021); Thomas v. State, 311 Ga. 280, 280 n.1 (857 SE2d 223) (2021); Kirkland v. State, 310 Ga. 738, 738 n.1 (854 SE2d 508) (2021). We do not generally include such a footnote in other criminal cases, and so this list of 14 may be underinclusive for 2021.
99 number of such appeals may well be between 50 and 100 per year,31
and even more in years of heavier caseloads.32 And even denied
motions for out-of-time appeal (which may not always themselves be
appealed) would first have resulted in full habeas proceedings under
the Court’s holding today.
The majority opinion first responds by dismissing the
significance of these cases on the basis that they are not “precedent”
for stare decisis purposes because they did not decide whether the
existence of a motion for out-of-time appeal was appropriate. But
that misunderstands the nature of precedent for these purposes. At
least by the time of our 1995 decision in Rowland, our precedent
definitively established that motions for out-of-time appeal are
31 During 2021, we disposed of 304 direct appeals. All of our murder
appeals would have been contained within that number and typically make up a substantial majority of our direct appeals; this suggests that we perhaps disposed of 200 to 250 murder appeals during 2021. During the same period, the Court of Appeals disposed of 804 criminal appeals. 32 And this number does not even include the dozens of unpublished
orders we have issued over the years dismissing appeals for untimeliness and citing Rowland for the proposition that the appellant may be able to file a motion for out-of-time appeal if the untimeliness was a result of counsel’s ineffective assistance.
100 proper. The 14 cases from last year in which our opinions noted that
motions had been granted thus represent faithful application of that
precedent and thus are precedent themselves for the purpose of
considering the extent of the entrenchment of the precedent in
question today.33
(b) Shifting all out-of-time appeals to habeas will have significant negative effects.
The majority’s argument that the long delays of habeas are not
meaningful because some motions for out-of-time appeal are filed
years or decades later is unavailing. Long-belated motions are a
problem (although, as the majority would presumably agree, not one
beyond the power of the General Assembly to end). But they seem
relatively rare; the majority cites only a handful. Most of the motions
that the majority consigns to the often years-long delays of habeas
are far more frequently filed shortly after deadlines are missed. In
the vast majority of the 14 cases we considered last year from the
33 The application of a case’s well-settled holding does not require citing
that case or discussing its analysis. At the very least, every case post-Rowland that has granted or denied on the merits a motion for out-of-time appeal has applied Rowland’s holding, whether or not it cites it. 101 grant of a motion for out-of-time appeal, the motion was filed less
than one year after the notice of appeal was due — indeed, often
considerably less than that, indicating that the issue was one of
attorney oversight rather than an attempt to attack an old
conviction. In one case, the notice of appeal had been filed a mere six
days late. See Abbott v. State, 311 Ga. 478, 478 n.1 (858 SE2d 696)
(2021). In another, the issue was the trial court’s failure to formally
vacate an initial order denying a motion for new trial in ruling on a
second amended motion. See Walker v. State, 312 Ga. 332, 332 n.1
(862 SE2d 542) (2021).
Particularly in those sorts of cases, where the only issue is
whether counsel failed to file timely, allowing post-conviction
proceedings to be resolved by granting a motion for out-of-time
appeal in the trial court is much more efficient than requiring a
convicted defendant to turn to the much lengthier habeas process.
Granting a motion for out-of-time appeal allows the claims to be
resolved promptly by the judge who presided over the trial. It avoids
the need for an inmate to grapple with the procedural hurdles of
102 filing a habeas petition, avoids the need to transfer records between
jurisdictions, and reduces travel costs for lawyers and prisoners.
And the speed of this process is particularly important when this
Court — as a matter of policy — has sought to prevent delays in the
resolution of post-conviction proceedings. See Owens v. State, 303
Ga. 254, 258-260 (4) (811 SE2d 420) (2018) (directing the Council of
Superior Court Judges to propose a rule to reduce post-conviction
delays). Although the majority says that a convicted defendant can
obtain the same result by filing in habeas, a grant of relief after
years of additional litigation is not obviously the same as a grant of
relief that is secured promptly.
The majority responds that the strictures of habeas “reflect
policy choices the General Assembly made.” But some of the most
important strictures were not in place when we created the out-of-
time appeal vehicle. It was not until 2004 that the General Assembly
imposed a limitations period for seeking habeas corpus relief from
103 felony convictions. See Ga. L. 2004, pp. 917-918, § 1.34 And it was
only that same year that the General Assembly provided that laches
may be a basis for dismissal. See id., § 3. We presume that the
General Assembly was aware of the availability of motions for out-
of-time appeal and chose not to apply limitations periods or laches
to them when it enacted these modifications to habeas.35 See Grange
Mutual Casualty Co. v. Woodard, 300 Ga. 848, 852 (2) (a) (797 SE2d
814) (2017) (“[A]ll statutes are presumed to be enacted by the
legislature with full knowledge of the existing condition of the law
and with reference to it.” (citation and punctuation omitted)).
34 I thank the Georgia Association of Criminal Defense Lawyers for its
excellent amicus brief bringing this point to my attention. That brief also suggests that a 1986 amendment to a Title 40 statute applied limitations to seeking habeas relief from certain traffic convictions. See Ga. L. 1986, p. 444, § 1. The actual effect of the 1986 provision is not entirely clear, but even if it did create a limitation on habeas petitions, it did so only for certain traffic offenses. 35 The majority interprets this point as though I’m arguing that Collier
was wrongly decided in authorizing a possible defense of prejudicial delay. This dissent expresses no opinion on that point. I merely point out that the General Assembly apparently did not share the majority’s policy concerns when that body enacted a limitations period and laches for habeas and chose not to extend those provisions to motions for out-of-time appeal, which had existed for decades before the General Assembly’s 2004 legislation. Nothing in Collier held otherwise.
104 Another significant effect on the criminal justice system is the
workload impact shifting all these cases to habeas would have, both
in terms of shifting court and counsel, and in terms of likely
resulting in fewer state concessions. The current process spreads the
obligation for handling such matters across all of the state’s district
attorneys and judges, rather than concentrating the burden on a few
judges in counties with prisons and shifting all prosecutorial
responsibilities to the Office of the Attorney General.36 During 2021,
we had 174 certificates of probable cause filed in our Court, seeking
to initiate an appeal from the denial of a habeas petition, which
suggests that the total number of habeas petitions resolved by
superior courts during that time frame is unlikely to have been
much more than 200. If we were to add 50 to 100 additional habeas
36 Although this could eventually be rectified in part by the General Assembly’s reallocation of appropriations, this is easier said than done. For one thing, it’s doubtful that any particular district attorney would be relieved of enough such motions to warrant reducing staff. At the same time, concentrating all of the cases in the AG’s office as habeas petitions may well result in a substantial increase in hourly fees paid to special assistant attorneys general contracted to defend convictions against habeas petitions. This is particularly likely because habeas petitions generally require more litigation than a motion, such that the change worked by the Court today likely will result in more work, not just shifting the work to different personnel. 105 petitions per year — as the majority today may well do, although we
can’t be sure — that could represent an increase in habeas caseloads
of 25 to 50 percent, while concentrating those cases among the
relatively few superior court judges who sit in circuits with prisons.
Although the majority argues that we should “credit” the
assessment of the Attorney General and the District Attorney who
have asked this Court to overrule its out-of-time appeal precedents,
neither of those constitutional officers has addressed the question of
resources in their briefs in this case. And the largest resource impact
would be on a small group of trial court judges, who are scarcely able
to weigh in.
Moreover, our precedent reveals anecdotally that the State
often agrees that the trial court should grant a motion for out-of-
time appeal, limiting the amount of litigation required to resolve
such an issue. But it’s one thing for the trial prosecutor — familiar
with the case and defense counsel — to agree that ineffective
assistance likely occurred and should be remedied. It’s another thing
altogether for the State’s habeas counsel — likely unfamiliar with
106 the case, defense counsel, and the trial court — to do so; more
meritorious motions would likely have to be litigated fully before
relief could be granted.
And finally, our prior approach often had the effect of affording
indigent defendants access to counsel for their motion for out-of-time
appeal,37 something that will be — at best — less certain if we
suddenly require inmates to turn to habeas. See Gibson v. Turpin,
270 Ga. 855, 860-861 (1) (513 SE2d 186) (1999).38 Moreover, they
won’t be able to bring only their claim regarding a frustrated appeal
without seriously risking waiving all other habeas-eligible claims.
37 The majority responds that indigent defendants do not have a right to
counsel for a motion for out-of-time appeal. But although I agree that indigent defendants do not have a right of appointed counsel for such a motion, as a practical matter they often in fact have such counsel when a motion is filed to correct a missed deadline. The majority’s observation that a public defender can decline to represent a defendant who is not entitled to representation is not responsive to this point. 38 I note that today’s step of entirely eliminating motions for out-of-time
appeal as a procedure to remedy the frustration of a defendant’s right to appeal makes all the more relevant and timely Justice Ellington’s previous suggestion that the superior court rules be amended to ensure that plea colloquies more thoroughly inform defendants of their rights to withdraw their plea and appeal their conviction. See Schoicket, 312 Ga. at 839-40 (Ellington, J., dissenting in part); see also id. at 833 (1) n.10 (majority opinion noting that Justice Ellington’s “thoughtful suggestion” merited consideration).
107 See, e.g., Williamson v. State, 305 Ga. 889, 897 (4) (827 SE2d 857)
(2019) (“Any claim of ineffectiveness of counsel must be made at the
earliest practicable moment.”).39 And now they will likely need to do
so pro se, without having had a hearing on a motion for new trial
and without a right to access the record of their trial without first
explaining why they need it. See Rutledge v. State, 309 Ga. 508, 510
(3) (847 SE2d 143) (2020) (explaining that “after the time for appeal
has expired there is no due process or equal protection right to a free
copy of one’s court records absent a showing of necessity or
justification” (citation and punctuation omitted)). The Court’s
decision today puts a defendant whose attorney missed the deadline
for filing a notice of appeal in a very difficult position.
(c) Neither lawyer ethical rules nor our decisions interpreting them are cause to abandon our precedent allowing motions for out- of-time appeals.
39 On the other hand, the rule that ineffectiveness claims must be raised
at the earliest practicable moment appears to be another rule that we have created without a basis in any statutory authority. See Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986) (“It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.”). Under the majority’s approach to stare decisis, the fate of that rule is uncertain as well. 108 The majority responds to much of this by arguing that our
precedent appears to prohibit lawyers from asserting their own
ineffectiveness. If that were true, it would give me pause. But the
majority overreads our precedent. Our precedent makes clear that
trial counsel cannot litigate contested ineffectiveness claims on a
motion for new trial, on appeal, or on habeas. But it does not address
the question of whether trial counsel may assert an uncontested
ineffectiveness claim in a motion for out-of-time appeal in the trial
court, which textual changes to the Georgia Rules of Professional
Conduct (the “Rules”) following our only decision analyzing any Rule
on this point strongly suggest is permissible. The majority’s broader
reading is wrong and, if adopted as a holding in a future case, would
tie the hands of the General Assembly in any later legislative effort
to fix what the majority breaks today.
In Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985), we
denied an application for interlocutory appeal from a trial court
order disqualifying a lawyer. See id. at 558. The only analysis in the
opinion was the trial court order, which we quoted in full without
109 comment beyond denying the application. The trial court
disqualified Bruce Harvey, who had served as trial counsel for the
defendant, from representing the defendant in his habeas petition.
The trial court cited one non-binding rule and two non-binding
comments on the rules that applied at the time, each of which
related to pitfalls of lawyers serving as witnesses.40 Different text of
the old rule — again, in a non-binding comment — indicated that
testifying on an uncontested issue would not be a problem: “It is not
objectionable for a lawyer who is a potential witness to be an
advocate if it is unlikely that he will be called as a witness because
his testimony would be merely cumulative or if his testimony will
relate only to an uncontested issue.” Georgia Code of Professional
Responsibility, EC 5-10 (1985). The trial court did not note this
provision, no doubt because it was not at issue in the contested
habeas case before it.
The trial court reasoned that the habeas petition sought to
40 The trial court also cited an Eleventh Circuit case for the proposition
that “there may arise issues of potentially differing interests of the lawyer and his client,” but made no conclusions about any conflict-of-interest rules. 110 raise claims of ineffectiveness regarding Mr. Harvey, and that
“virtually all the evidence of ineffective assistance of counsel is
within counsel Harvey’s personal knowledge,” and “some evidence
can only come from Mr. Harvey.” Castell, 254 Ga. at 558. The trial
court noted its concern that the challenges to Mr. Harvey’s
credibility his testimony would inevitably generate, and the
necessity of cross-examination, posed threats to the integrity and
reliability of the judicial process. See id. at 557-58.
Sixteen years later, the State Bar proposed, and we approved,
a wholesale set of new rules modeled after the ABA model rules. The
old rule language quoted by the trial court largely no longer exists
in our current rules (which were again significantly revised in 2018).
The current binding rules on lawyers serving as witnesses generally
prohibit it, but expressly allow it where “the testimony relates to an
uncontested issue.” Ga. Rule of Professional Conduct 3.7 (a) (1); see
also Cmt. 3 to Rule 3.7 (“Paragraph (a) (1) recognizes that if the
testimony will be uncontested, the ambiguities in the dual role are
purely theoretical.”).
111 It’s well settled that “when statutory amendments . . .
materially alter text that this Court has previously interpreted, our
pre-amendment precedent no longer binds lower courts to the extent
the amendments change the meaning of the text.” State v. Stanford,
312 Ga. 707, 710 n.3 (864 SE2d 448) (2021). And the Georgia Rules
of Professional Conduct are, like all legal text, subject to this
principle. To the extent that our quotation of the trial court’s order
in Castell adopted the trial court’s reasoning as a holding, the
material alteration of the rules made Castell obsolete, at least as to
testimony that was uncontested. Deleting a non-binding comment,
and replacing it with a binding rule — even if similar — is a
substantive change to the meaning of the rules.
Over two decades after Castell and six years after the adoption
of the new rules, we cited Castell as the sole authority for the
proposition that “[b]ecause a lawyer may not ethically present a
claim that he/she provided a client with ineffective assistance of
counsel, a claim of ineffective assistance of trial counsel cannot be
pursued unless trial counsel is no longer representing the convicted
112 defendant.” Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007).
We did so only for the proposition that the defendant had not waived
ineffectiveness claims by failing to raise them before a belated pro
se motion for new trial. See id. We then cited Hood in Garland v.
State, 283 Ga. 201, 202 (657 SE2d 842) (2008), in support of our
conclusion that a defendant was entitled to new counsel on appeal
to pursue ineffectiveness claims.
Hood and Garland are the only decisions of ours the majority
cites41 for the proposition that trial counsel are ethically prohibited
from raising a claim of ineffective assistance of counsel in a motion
for out-of-time appeal, even when uncontested. They do not stand
for that proposition. The only analysis on this point that any of these
cases included was the quotation of the trial court’s order in Castell,
which applied now-superseded rules regarding lawyers serving as
witnesses.42 Now, the current rules generally prohibit lawyers from
41 The majority also cites a decision of our Court of Appeals. See Delevan
v. State, 345 Ga. App. 46, 49-51 (811 SE2d 71) (2018). That case relies on the same authority already discussed and did not involve uncontested testimony. 42 We also have stated more broadly that an attorney cannot “reasonably
113 serving as witnesses on contested points, precisely the context in
which Castell and its progeny were decided. I have no quarrel with
that holding. But there is no basis to extend their holdings to cases
of uncontested testimony. The majority’s only response to all of this
is not to cite Castell.
In short, neither the Rules nor our precedent interpreting them
prohibit trial counsel from seeking an out-of-time appeal when the
facts underlying the claim to which the lawyer would have to testify
are uncontested (and which, if the trial lawyer is still counsel,
naturally will be sought soon after the deadline has passed).
Allowing this kind of motion is the key value of the system that
presently exists relative to the system that will exist following the
majority’s opinion.
3. The majority’s workability concerns do not warrant overruling our precedent.
be expected to assert or argue his own ineffectiveness on appeal[,]” particularly in the contexts of determining whether a defendant needs new, conflict-free counsel, see Garland, 283 Ga. at 203, and determining whether a claim of ineffective assistance has been waived, see White v. Kelso, 261 Ga. 32, 32 (401 SE2d 733) (1991). But that is not the same as saying that a lawyer is categorically prohibited from asserting his own ineffectiveness in all circumstances. 114 Now, it’s important to note once again that considerations like
these are not proper reasons to invent new avenues for relief that
contravene statutes or otherwise misapply statutory law and
equivalent legal principles in the first instance. But once we have
done so — for decades, and in ways that are now entrenched in our
legal system — these issues are appropriate to consider in
determining whether to change course.
The majority’s response to these concerns is to observe that the
General Assembly could rectify any of these possible consequences
of tossing aside the current system. And the majority takes the
position that because we created the current situation, it is our
responsibility to fix it. But this is always true when we’ve gotten a
case wrong. The majority’s approach places a perpetual thumb on
the scale in favor of overturning precedent, which is backwards. The
idea that it doesn’t matter how much we break the legal system
because the General Assembly can glue the pieces back together is
simply not an argument compatible with stare decisis. Moreover, all
of the problems with the existing system also can be remedied by
115 actions of the General Assembly. Stare decisis means that when we
have competing workability considerations on both sides of a choice
whether to retain precedent, all of which can be addressed by the
legislature, we put the thumb on the scale of retaining our current
precedent.
To be sure, our invention of the motion for out-of-time appeal
has led to problems, only some of which are identified at length in
my concurrence in Collier and our decision in Schoicket (and, of
course, the majority’s decision today). But we have only a binary
choice of retaining or overruling precedent; stare decisis allows us to
keep a wrong precedent, not to improve on it. And this binary choice
is a blunt instrument for solving the problems we have recognized.
The General Assembly, on the other hand, has far more options. For
instance, it might limit the filing of such motions to a six-month
period after the deadline for the filing of a notice of appeal. Or it
might tie the ability to file such a motion to the appointment of new
counsel for appeal, requiring counsel to file the motion within, say,
60 days of appointment.
116 The majority also contends that our current precedents are
unworkable because they present an ongoing requirement that this
Court “fill in the details of the trial court out-of-time appeal
procedure we created,” requiring us to exercise legislative power. I
disagree. There is no equivalent to the Civil Practice Act for criminal
cases. Many procedural vehicles are creatures of decisional law that
require, from time to time, our definition and refining. But we do not
do so unaided; there already are many background rules — common
law, statutory, and decisional — that apply to criminal proceedings
generally, and may well apply to motions for out-of-time appeal. To
the extent that we occasionally may be called upon to answer
questions about the application of such background rules, that is
what appellate courts do. Indeed, we did just that — unanimously
— less than five months ago regarding a judicially created
procedural mechanism in criminal cases. See Walker v. State, 312
Ga. 640, 644 (2) (864 SE2d 398) (2021) (leaving undisturbed trial
courts’ authority to dismiss criminal charges for want of prosecution
117 and defining some of the contours of that authority).43 The majority
focuses too narrowly on the effect this precedent has on us at the
expense of a proper concern for the effect it has more broadly.
And to the extent that parties ask us to expand those
procedures, such tinkering is not ours to do. We made clear in
Schoicket our intention to cease inventing new procedural
mechanisms in this area. See 312 Ga. at 832 (1). But for the reasons
outlined above, neither should we jettison the mechanisms that have
existed ever since we erroneously invented them decades ago. We
should leave the next move — if any — for the General Assembly.
I am authorized to state that Justice Bethel and Justice
Ellington join in this dissent.
43 In Walker, we observed that the State and its amici had pointed us to
“no statute that purports to eliminate or limit this longstanding practice[.]” 312 Ga. at 644 (2). But that merely goes to the soundness of the original creation of the practice, not to the majority’s argument that being called upon to define the contours of a judicially created procedure is unworkable. 118 Decided March 15, 2022.
Out-of-time appeal. Polk Superior Court. Before Judge Lim.
The Leslie Group, Deborah L. Leslie, for appellant.
Jack Browning, Jr., District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, W. Wright Banks, Jr.,
Deputy Attorneys General, Paula K. Smith, Senior Assistant
Attorney General, Ashleigh D. Headrick, Stephen J. Petrany,
Assistant Attorneys General, Ross W. Bergethon, Deputy Solicitor-
General, for appellee.
Jill A. Travis; James C. Bonner, Jr.; Willis Law Firm, Gregory
A. Willis; The Bullard Firm, Brandon A. Bullard; Miller & Key, J.
Scott Key; Peter J. Skandalakis, Robert W. Smith, Jr., amici curiae.
Related
Cite This Page — Counsel Stack
870 S.E.2d 758, 313 Ga. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-state-ga-2022.