De'andre Malik Thomas v. State

• Court: Court of Appeals of Georgia
• Decided: January 11, 2024
• Docket: A23A1342
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

January 11, 2024

In the Court of Appeals of Georgia A23A1342. THOMAS v. THE STATE.

PIPKIN, Judge.

De’Andre Malik Thomas was charged with malice murder, felony murder, and

multiple counts of aggravated assault; he entered a negotiated guilty plea to voluntary

manslaughter as a lesser included offense of felony murder. He was sentenced to 20

years, 18 years to be served in confinement and the remainder on probation.1 After

securing an order from a habeas court granting him an out-of-time appeal, the trial

court denied his motion to make the habeas court order the order of the plea court. He

now appeals from that order. As more fully set forth below, we affirm.

1 The other counts were nolle prosequied. The procedural history of this case is rather complex. Thomas entered his plea

in June 2018. In January 2019, Thomas filed a motion for out-of-time appeal in the

plea court based on ineffective assistance of counsel in entering his plea. Because

Thomas did not allege any ineffectiveness on the part of counsel that resulted in the

failure to timely file a direct appeal from the judgment of conviction entered on his

guilty plea, the plea court denied his motion on February 5, 2019. Thomas filed a

motion to withdraw his plea2 outside the term in which it was entered, and the plea

court denied this motion in April 2019. Thomas filed another motion for out-of-time

appeal in the plea court in December 2019 contending, among other things, that he

had not been adequately informed of his appeal rights at the time he entered his plea

and that his counsel was ineffective for failing to pursue an appeal on his behalf.

Thomas also filed a petition for habeas relief in March 2020.3

The plea court granted Thomas’ motion for out-of-time appeal on March 16,

2021; the court directed that the order be forwarded to the appropriate office so that

2 The motion to withdraw is not contained in the record on appeal but the plea court recites the facts surrounding the filing of the motion, including the time of filing, in its order denying the motion. 3 Although the habeas petition is not in the record on appeal, the transcript from the habeas hearing has been made part of the record. 2 Thomas could be appointed counsel to pursue his appeal. Thereafter, appointed

appellate counsel filed a motion to withdraw Thomas’ guilty plea.

Meanwhile, the habeas court held a hearing on Thomas’ petition on August 25,

2021. During the hearing, the habeas court ruled from the bench that it was dismissing

the habeas petition as premature and without prejudice because Thomas had been

granted an out-of-time appeal by the plea court. The habeas court also instructed his

law clerk to take the necessary steps to secure counsel for Thomas so he could pursue

his appeal. Then, on October 5, 2021, the habeas court entered a written order stating

that, although it had previously dismissed Thomas’ motion for out-of-time appeal as

premature, the habeas court was now granting Thomas an out-of-time appeal “to

begin the time anew and allow [Thomas] to pursue his appeal.” Further, the habeas

court directed that a copy of the order be mailed to Thomas, the Superior Court of

Bibb County, the Office of Public Defender, and the Chief Judge of the Superior Court

of Bibb County. Finally, the order gave Thomas 30 days from the date of the order to

“seek his post-conviction remedies,” making a new notice of appeal due by November

4, 2021.

On October 25, 2021, a different appointed appellate attorney filed a notice of

appearance in the plea court and, referencing the habeas court’s order, filed a second 3 motion to withdraw Thomas’ guilty plea. Before the plea court ruled on either motion,

the Supreme Court of Georgia issued its decision in Schoicket v. State, 312 Ga. 825

(865 SE2d 170) (2021), holding 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.” Id. at

833 (1).

Several months later, on March 4, 2022, Thomas’ first appointed appellate

counsel filed yet another motion for out-of-time appeal in the plea court, urging that,

in light of the Supreme Court’s decision in Schoicket, Thomas should be granted

another out-of-time appeal. The motion was accompanied by a certified copy of the

habeas court’s order, which had not yet been filed in the plea court. About two weeks

later, counsel filed a “Motion to Make Habeas Court Order for Out-of-Time Appeal

the Order of [the Plea] Court.” In that motion, counsel explained that, in addition to

the habeas court granting Thomas an out-of-time appeal, the court directed that the

order “be sent to various personnel in Bibb County including the Superior Court” but

that the order had not been made part of the record until March 4, 2022. Based on

this, counsel moved the plea court to adopt the habeas court’s order granting Thomas

an out-of-time appeal so that Thomas could then “exercise his ‘unqualified right’ to

file a Notice of Appeal.” Less than a week later, the Supreme Court of Georgia issued 4 its decision in Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), eliminating the out-

of-time appeal procedure in trial courts; the Court made its holding applicable to “all

cases that are currently on direct review or otherwise not yet final.” Id at 506 (5).

Following Cook, on May 25, 2022, the plea court entered an order vacating “this4

Order Granting Out-of-Time Appeal,” and dismissed Thomas’ motion for out-of-

time appeal.

On September 27, 2022, the plea court held a hearing on Thomas’ motion to

make the habeas court order the order of the plea court. During the hearing, the plea

court questioned whether it had the authority to grant Thomas the right to file an out-

of-time appeal in light of the Supreme Court’s decision in Cook and ultimately denied

the motion. Thomas now contends that he should have been allowed to file an out-of-

time appeal under these circumstances. We discern no error. Although Thomas could

have filed a notice of appeal in the plea court if he had done so within 30 days of the

habeas court’s order, that is not what happened. Rather, counsel filed a motion to

withdraw Thomas’ guilty plea and a motion for out-of-time appeal in the plea court,

4 The order does not specify which order the “this” refers to. However, since the trial court later denied Thomas’ motion to make the order of the habeas court the order of the plea court, it seems that the “this” refers to the previous order by the plea court granting Thomas an out-of-time appeal. 5 judicially created mechanisms which were eliminated by Schoicket and Cook. In the

meantime, much more than 30 days – in fact many months – elapsed without Thomas

filing a notice of appeal, or anything else, from the habeas court’s grant of relief.

The plea court properly determined that it did not have the authority to grant

Thomas an out-of-time appeal post-Cook. Indeed, because the 30 day deadline had

passed for Thomas to file a notice of appeal following the habeas court’s order, the

effect of the plea court adopting the habeas court’s order would be for the plea court

to grant Thomas an out-of-time appeal, which the plea court had no authority to do

following Cook. Accordingly, the plea court properly denied Thomas’ motion to make

the habeas court order the order of that court, and we affirm. In so holding, however,

we express no opinion on whether Thomas might be entitled to further relief in the

habeas court. See Allen v. Daker, 311 Ga. 485, 505 (4) (858 SE2d 731) (2021); Hall v.

Jackson, 310 Ga. 714, 724-725 (2) (b) (854 SE2d 539) (2021). But see OCGA § 9-14-42

(c) (providing that a habeas petition must be filed within four years of certain specified

circumstances in felony cases).

Judgment affirmed. Dillard, P. J., and Rickman, J., concur.