Djuan Cooper v. State

• Court: Court of Appeals of Georgia
• Decided: February 19, 2019
• Docket: A18A1871
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, 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. http://www.gaappeals.us/rules

February 19, 2019

In the Court of Appeals of Georgia A18A1871. COOPER v. THE STATE.

MARKLE, Judge.

Djuan Trenais Cooper appeals pro se from the trial court’s order denying his

motion for leave to file an out of time appeal. Upon review, we affirm the trial court’s

denial of Cooper’s motion.

The record reveals that on August 31, 2017, Cooper entered a non-negotiated

plea of guilty to first degree home invasion, aggravated assault, and possession of a

firearm by a convicted felon. He received a life sentence with 14 years to serve and

the remainder on probation. On April 5, 2018, Cooper filed a pro se motion for leave

to file an out of time appeal. As grounds for an appeal, Cooper contended that the

indictment did not allege all the essential elements of the crimes, that his plea was not

knowing and voluntary because he was not informed he would be waiving his right against self-incrimination, and that plea counsel was ineffective for failing to

challenge the indictment, failing to familiarize himself with the law in relation to the

plea, and failing to fully apprise Cooper of the rights he was waiving by pleading

guilty. The trial court denied the motion, and Cooper filed this appeal.

Having entered a guilty plea, Cooper has no unqualified right to a direct appeal.

See Lewis v. State, 326 Ga. App. 529, 530 (757 SE2d 170) (2014).

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. . . . Thus, an out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel.

(Citations and punctuation omitted.) Stephens v. State, 291 Ga. 837, 837-838 (2) (733

SE2d 266) (2012). In order to obtain an out-of-time appeal, Cooper must show that

the issues he seeks to appeal can be resolved by facts appearing on the record and that

his failure to seek a timely appeal was the result of ineffective assistance of counsel.

Clark v. State, 299 Ga. App. 558, 559 (683 SE2d 93) (2009). If the issues cannot be

resolved from the existing record, Cooper would have had no right to file even a

timely direct appeal and, therefore, is also not entitled to an out-of-time appeal. See

2 Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995). Claims which require an

expanded record must be pursued in a habeas corpus petition. See id. We will affirm

the trial court’s ruling if it is clear from the record that the issues lack merit, and we

“review a trial court’s denial of a motion for an out-of-time direct appeal for an abuse

of discretion.” (Citation omitted.) Clark, 299 Ga. App. at 559.

1. Cooper argues that his indictment was void because it did not charge all the

essential elements of the crimes alleged. This argument can be resolved against

Cooper on the face of the record.

When Cooper pleaded guilty, “he waived all defenses except that the

indictment charged no crime.” Kemp v. Simpson, 278 Ga. 439, 439-440 (603 SE2d

267) (2004). The indictment alleged that Cooper entered the victim’s home without

her permission and with the intent to commit an aggravated assault against her, and

that he pointed a handgun at her. Because Cooper could not admit those allegations

and be innocent of all crimes, his challenge to the sufficiency of the indictment is

without merit. Accordingly, Cooper is not entitled to an appeal on this ground.

2. Next, Cooper contends that the trial court violated Uniform Superior Court

Rule 33.8 (“USCR”) by accepting Cooper’s guilty plea without ensuring that he had

3 been advised of the elements of the charges against him. This argument, too, can be

resolved against Cooper based on the existing record.

USCR 33.8 (A) provides that the trial court should not accept a guilty plea

without first determining that the defendant understands the nature of the charges

against him. Similarly, the United States Supreme Court has held that a guilty plea

“cannot be truly voluntary unless the defendant possesses an understanding of the law

in relation to the facts.” (Citations omitted.) Raheem v. State, 333 Ga. App. 821, 827

(2) (777 SE2d 496) (2015). This principle, however, “does not require the trial court

to personally inform the accused of the elements of the crime to which he is pleading

guilty.” (Footnote omitted.) Id. Indeed, “where, as here, the defendant has legal

representation, a presumption arises that defense counsel routinely explained the

nature of the offense in sufficient detail to give the accused notice of what he is being

asked to admit.” (Citation and punctuation omitted.) Tomlin v. State, 295 Ga. App.

369, 372 (2) (671 SE2d 865) (2008).

Here, the transcript of the plea hearing reveals that the prosecutor identified the

charges against Cooper and the range of punishments he faced. The prosecutor also

summarized the factual basis for the charges, reciting that Cooper kicked in the door

to his ex-girlfriend’s apartment, put a gun to her head, threatened to kill her, and beat

4 her. The victim’s neighbors called 911 and the responding officers found Cooper in

the parking lot, with the victim’s blood on his pants and several of her belongings in

his car. The prosecutor then identified the rights Cooper would waive by pleading

guilty. After confirming that Cooper understood the rights he would waive, the

prosecutor reiterated the charges against Cooper and the associated penalty ranges.

Cooper indicated that he understood the charges, that the facts recited by the

prosecutor were true and correct, that he was satisfied with the representation he had

received from his attorney, and that he wanted to plead guilty. Under these

circumstances, there is no merit to Cooper’s argument that he was not made aware of

the nature of the charges against him.

3. Cooper contends that his guilty plea is invalid because he was not properly

advised of his rights pursuant to Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23

LE2d 274) (1969). Again, the record shows that this argument can be resolved against

Cooper.

“Boykin requires the State to show that a defendant was informed of the

privilege against compulsory self-incrimination, the right to a trial by jury, and the

right to confront one’s accusers in order to establish that the defendant’s guilty plea

was voluntarily, knowingly, and intelligently made.” (Citation omitted). Burns v.

5 State, 291 Ga. 547 (1) (a) (731 SE2d 681) (2012). Before accepting a guilty plea, the

trial court has a “duty to establish that the defendant understands the constitutional

rights being waived.” (Citation omitted.) Childs v. State, 311 Ga. App. 891 (1) (717

SE2d 509) (2011).

In this case, Cooper asserts that he was not informed of the first Boykin right:

his right against compulsory self-incrimination. The transcript of the plea hearing,

however, shows that the prosecutor asked Cooper if he understood that by pleading

guilty he would be giving up certain rights, including “the right not to incriminate

yourself.” The prosecutor further defined that right as, “Basically, you’re giving up

the right to testify or not testify based upon a decision that you would make along

with your attorney.” Cooper responded that he understood he would give up this right

by pleading guilty. Although the prosecutor did not use the term “self-incrimination”

specifically, it is well settled that protecting a defendant’s rights does not require the

use of “any precisely-defined language or ‘magic words.’” (Citation omitted.) Raheem

v. State, 339 Ga. App. 859, 862 (2) (794 SE2d 418) (2016). The record clearly shows

that Cooper was advised of the privilege against compulsory self-incrimination in

terms of a “right not to incriminate [him]self” and to not testify. Consequently, this

enumeration of error is without merit.

6 4. Finally, Cooper argues that his plea counsel provided ineffective assistance

in several ways. None of his arguments are meritorious.

Cooper asserts, first, that counsel provided ineffective assistance by failing to

inform Cooper of his right against self-incrimination and of the essential elements or

true nature of the charges against him. As discussed above, however, the record belies

Cooper’s assertions that he was not advised of his right against self-incrimination or

of the nature of the charges against him.

Cooper also contends that counsel provided ineffective assistance by failing to

challenge his arrest warrants or indictment and by failing to advise him of his right

to withdraw his guilty plea before sentencing and his right to appeal. Those

allegations, however, cannot be resolved from the current record. Accordingly,

Cooper must raise the issues in a habeas corpus action. See Marion v. State, 287 Ga.

134, 135 (3) (695 SE2d 199) (2010).

In conclusion, a review of the record shows that Cooper has not identified any

claims that would support a direct appeal from his guilty plea. The trial court,

therefore, properly denied his motion for an out-of-time appeal.

Although we reach this conclusion in the instant case, we recognize that the

Supreme Court of Georgia has recently called into question Georgia’s case law

7 regarding out-of-time appeals. See Ringold v. State, __ Ga. __ (__ SE2d __), 2019

WL 273120 (Jan. 22, 2019) (citing Roe v. Flores-Ortega, 528 U. S. 470 (120 SCt

1029, 145 LE2d 985) (2000)). Under our body of cases, Georgia appellate courts have

required a defendant to show an ability to prevail on the merits before opening the

door to an out-of-time appeal. As the Court noted in Ringold, however, that case law

appears inconsistent with U. S. Supreme Court precedent; instead, we should presume

prejudice from counsel’s failure to file a notice of appeal because this denies the

defendant access to the appellate process entirely. Ringold, 2017 WL 273120, at *4.

But the Court in Ringold did not overrule any of its prior cases, nor did it

overrule – even implicitly – any of this Court’s cases involving out-of-time appeals

from guilty plea convictions. See generally Ringold, 2019 WL 273120. In a

concurring opinion, Justice Nahmias stated that the opinion “sounds a clear death

knell for . . . our prior holdings” in out-of-time appeal cases. Id. at *5 (Nahmias, J.,

concurring). He further encouraged the Supreme Court of Georgia to overrule the

cases “at the first available opportunity.” Id. at * 6 (2).

Clearly, the Ringold decision, and Justice Nahmias’s concurrence, have

informed us that our jurisprudence in this area of the law is “unsound.” See Ringold,

2019 WL 273120, at *6 (3) (Nahmias, J., concurring). But we are left with little

8 choice except to adhere to that precedent, however misguided, because those cases

remain binding. Although we are authorized to overrule our own line of case law,

because the Supreme Court did not overrule their precedent, we remain bound by it.

See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme

Court shall bind all other courts as precedents.”); Art. VI, Sec. V, Par. III (“The

decisions of the Court of Appeals insofar as not in conflict with those of the Supreme

Court shall bind all courts except the Supreme Court as precedents.”). We are thus

“powerless to do anything but apply” the existing precedent to the case before us. See

Mingo v. State, 133 Ga. App. 385, 391 (210 SE2d 835) (1974) (on rehearing).

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