307 Ga. 151 FINAL COPY
S19A1352. DOS SANTOS v. THE STATE.
NAHMIAS, Presiding Justice.
On April 16, 2018, Tia Marie Dos Santos entered negotiated
guilty pleas to felony murder and other crimes. In the same term of
court, she filed a pro se motion to withdraw her guilty pleas. The
trial court denied the motion as meritless, and Dos Santos timely
appealed to this Court. As we explain below, under our decision in
White v. State, 302 Ga. 315 (806 SE2d 489) (2017), the trial court
should have dismissed Dos Santos’s pro se motion as a legal nullity,
because she was still represented by her plea counsel when she filed
the motion. We therefore vacate the trial court’s judgment and
remand the case with direction to dismiss the motion to withdraw
guilty pleas as inoperative. We also recognize, as we did not in White
and some other cases, that had the trial court properly dismissed
the motion, we would properly dismiss a subsequent appeal from
that judgment, rather than affirming the judgment. Finally, we emphasize how important it is for criminal defense lawyers not to
abandon their clients immediately after a guilty plea, and we discuss
how to deal with some of the practical issues that may arise from
the holdings in White that we reiterate today.
1. On May 11, 2017, a Clayton County grand jury indicted Dos
Santos for murder and a variety of other crimes, most of which were
in connection with the non-fatal shooting of her ex-boyfriend Jose
Moore, the fatal shooting of his new girlfriend Claudette Duclos, and
the aggravated assault of a bystander. Three weeks later, a lawyer
who apparently was retained by Dos Santos’s mother filed an entry
of appearance in the case. On April 16, 2018, the first day of her
scheduled trial, Dos Santos, who was still represented by counsel,
entered negotiated guilty pleas under North Carolina v. Alford, 400
U.S. 25 (91 SCt 160, 27 LE2d 162) (1970), to felony murder based on
aggravated assault, two counts of aggravated assault (of Moore and
the bystander), and theft by taking. In exchange, the State agreed
to nolle pros the remaining charges and to recommend sentences of
life in prison with the possibility of parole for the murder and
2 concurrent terms of twenty years for the two aggravated assaults
and ten years for the theft. The trial court then sentenced Dos
Santos in accordance with the negotiated agreement. The court filed
the final judgment of conviction and sentence that same day.
Eight days later, on April 24, Dos Santos filed a pro se motion
to withdraw her guilty pleas.1 The trial court’s new term of court
began less than two weeks later, on May 7. See OCGA § 15-6-3 (10)
(fixing the starting dates for the terms of the Clayton County
Superior Court as the “[f]irst Monday in February, May, August, and
November”). On May 11, the trial court filed an order saying that
Dos Santos had appeared at a motions hearing that day and had
indicated that she wanted to retain a new lawyer. The court ordered
1 Although Dos Santos had the right to withdraw her guilty pleas before
the trial court pronounced its sentence, see OCGA § 17-7-93 (b), “[a]fter sentencing, a defendant may withdraw a guilty plea only to correct a manifest injustice, such as where the defendant was denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.” McGuyton v. State, 298 Ga. 351, 353 (782 SE2d 21) (2016) (citation and punctuation omitted). See also USCR 33.12. In her pro se motion, Dos Santos claimed that her guilty pleas were involuntary because she was coerced into entering them by her plea counsel and her mother and because her plea counsel provided ineffective assistance by misadvising her about her ability to appeal her case and by continuing to represent her after her mother had fired him. 3 Dos Santos to retain new counsel by June 11; otherwise, new counsel
would be appointed for her. On May 14, Dos Santos’s plea counsel
filed a written request to withdraw from the case, which the trial
court granted on May 22. The court appointed post-conviction
counsel for Dos Santos, and he filed an entry of appearance. He did
not file a new or amended motion to withdraw the guilty pleas.
On July 31, 2018, the trial court held an evidentiary hearing
on Dos Santos’s pro se motion, at which her post-conviction counsel
presented argument and called as witnesses Dos Santos, her plea
counsel, her mother, and her mother’s boyfriend.2 On December 31,
2018, the trial court entered an order denying Dos Santos’s motion
on the merits. Through her post-conviction counsel, Dos Santos then
filed a timely notice of appeal, and in her appellate brief she raises
essentially the same claims that she asserted in the pro se motion
and at the hearing. We do not consider the merits of those claims,
2 At the hearing, her counsel argued the claims that Dos Santos had
raised in her pro se motion, as well as claims that she was not informed of the possible sentencing ranges and that her plea counsel provided ineffective assistance by misadvising her about the possible sentencing ranges and by failing to file a request for a voluntary manslaughter instruction. 4 however, because Dos Santos’s pro se motion was a legal nullity and
should have been dismissed by the trial court on that ground.
2. Two years ago in White v. State, 302 Ga. 315, we considered
whether White’s two pro se motions to withdraw his guilty pleas,
which were timely filed during the same term of court in which he
was convicted and sentenced, were properly dismissed by the trial
court on the ground that he was represented by counsel when he
filed them. See id. We rejected White’s argument that a criminal
defendant should be deemed unrepresented immediately after the
entry of sentence and concluded instead that counsel’s
representation does not “terminate[ ] automatically on the entry of
a judgment and sentence — whether following the return of a jury
verdict or the entry of a guilty plea.” Id. at 317-318. To conclude
otherwise, we explained,
would deprive defendants of the “guiding hand of counsel,” Powell v. Alabama, 287 U. S. 45, 69 (53 SCt 55, 77 LE 158) (1932), at a point in the proceeding when important decisions need to be made and actions potentially taken, often with short deadlines, regarding the filing of a post-trial motion (e.g., a motion for new trial), a post-plea motion (e.g., a motion to withdraw a
5 guilty plea), or a notice of appeal. Such a holding also would contradict this Court’s precedents on out-of-time appeals, which recognize that defense counsel’s duties toward their clients extend for at least the 30 days after the entry of judgment when a notice of appeal may be filed.
Id. at 318. We therefore held that,
at a minimum, legal representation continues – unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see USCR 4.3 (1)-(3) – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea . . . .
Id. at 319.
Applying this holding, we explained that when White filed his
pro se motions to withdraw his guilty pleas, he was still represented
by his plea counsel, because the motions were filed during the term
in which White was convicted and sentenced and his counsel had not
properly withdrawn from the case. See White, 302 Ga. at 319. Thus,
the trial court correctly dismissed White’s pro se motions as “legal
nullities,” because “‘[a] criminal defendant in Georgia does not have
the right to represent himself and also be represented by an
attorney, and pro se filings by represented parties are therefore
6 “unauthorized and without effect.”’” Id. (quoting Tolbert v. Toole, 296
Ga. 357, 363 (767 SE2d 24) (2014) (quoting Cotton v. State, 279 Ga.
358, 361 (613 SE2d 628) (2005))).
3. In this case, Dos Santos, like White, filed her pro se motion
to withdraw her guilty pleas before the end of the term of court in
which she was sentenced, which is the deadline for filing such a
motion. See Brooks v. State, 301 Ga. 748, 751 (804 SE2d 1) (2017)
(“‘A motion to withdraw a guilty plea must be filed within the same
term of court as the sentence entered on the guilty plea.’” (citation
omitted)). However, when she filed her motion, Dos Santos was still
represented by her plea counsel, who had a duty under White to
continue his representation of her at least through the end of the
term of court, unless he properly withdrew from the case or was
replaced by substitute counsel. The record indicates that plea
counsel did not even request to withdraw from Dos Santos’s case
until a week after the term had ended, and the trial court did not
file its order permitting him to do so until more than a week after
7 that.3
Accordingly, just like White, Dos Santos’s pro se motion to
withdraw her pleas was unauthorized and without effect, because
she had no right to represent herself at the same time she was
represented by a lawyer. See White, 302 Ga. at 319. See also
Williams v. Moody, 287 Ga. 665, 669 (697 SE2d 199) (2010) (“A pro
se motion filed by a convicted defendant while represented by
counsel is ‘unauthorized and without effect.’” (citation omitted));
Cargill v. State, 255 Ga. 616, 622-623 (340 SE2d 891) (1986) (holding
that neither the Sixth Amendment to the United States Constitution
3 In her motion to withdraw her guilty pleas and at the hearing on the
motion, Dos Santos claimed that shortly before she entered her pleas, her mother, who had retained plea counsel, fired him. But the testimony at the hearing established that plea counsel properly told Dos Santos’s mother that she could not fire him and that only the trial court could allow him to withdraw from the case. See USCR 4.3; Tolbert, 296 Ga. at 362 (“A formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record.” (citation and punctuation omitted)). See also Rule 1.8 (f) of the Georgia Rules of Professional Conduct (“A lawyer shall not accept compensation for representing a client from one other than the client unless . . . there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship . . . .”). Nothing in the record indicates that Dos Santos — plea counsel’s client — had discharged him or that the trial court permitted his withdrawal at any time before the end of the term of court.
8 nor the Georgia Constitution affords a criminal defendant the
hybrid right to simultaneously represent himself and to be
represented by counsel), overruled on other grounds by Manzano v.
State, 282 Ga. 557 (651 SE2d 661) (2007). The trial court should
have dismissed Dos Santos’s pro se motion rather than ruling on its
merits. See White, 302 Ga. at 320.4 We therefore vacate the trial
court’s judgment and remand the case with direction to dismiss the
motion. See Brooks, 301 Ga. at 752. See also Cason v. State, 348 Ga.
App. 828, 830 (823 SE2d 357) (2019); Hernandez-Ramirez v. State,
345 Ga. App. 402, 403 (812 SE2d 798) (2018).
4. Our consideration of the proper judgment in this case has
led to the realization that our judgment lines in White and similar
cases were incorrect. Where a filing in a criminal case is a legal
4 Dos Santos had new counsel who represented her at the hearing on her
motion, but that could not breathe life into her inoperative pleading. The new lawyer did not file a new motion to withdraw Dos Santos’s guilty pleas, but even if he had done so, the term of court in which she was sentenced was over before he began representing her, so such a motion would have been untimely, and the trial court would have lacked jurisdiction to grant it. See White, 302 Ga. at 320. New counsel also did not amend the pro se motion, but even if he had, “an amended motion is not a time machine that allows a litigant to change past events,” and “a pleading purporting to amend a prior filing that was a nullity . . . does not relate back in time to the date of the non-filing.” Id. 9 nullity, we have held in several contexts not only that the trial court
should dismiss the nugatory filing rather than ruling on its merits,
but also that no appeal from such an inoperative filing is authorized,
so if a defendant appeals a trial court order that properly dismisses
(or denies) such a filing as a nullity, the appeal should be dismissed
rather than the trial court’s judgment being affirmed. See, e.g.,
Schoicket v. State, 304 Ga. 255, 255 (818 SE2d 561) (2018)
(dismissing an appeal regarding a criminal defendant’s motion for a
free copy of the records in her case, after the time for appeal had
expired and without any showing of necessity or justification,
because the motion was a nullity); Henderson v. State, 303 Ga. 241,
244 (811 SE2d 388) (2018) (“Because the law does not recognize a
motion for a transcript at public expense filed in a criminal case
after the opportunity for a direct appeal has ended, the trial court
should have dismissed Henderson’s motion as a nullity, and he has
nothing cognizable to appeal.”); Williams v. State, 287 Ga. 192, 194
(695 SE2d 244) (2010) (dismissing an appeal from an order denying
the defendant’s motion to correct his illegal conviction, because such
10 a motion is not an appropriate remedy in a criminal case). See also
Brooks, 301 Ga. at 752 (discussing the disposition of appeals of trial
court orders that improperly rule on the merits of a criminal
defendant’s motion).5
In White, however, after concluding that White’s pro se motions
to withdraw his guilty pleas were legal nullities properly dismissed
by the trial court, we did not dismiss his appeal but rather affirmed
the trial court’s dismissal judgment. See 302 Ga. at 321. And in a
few subsequent cases where the validity of an appellant’s timely pro
se motion to withdraw guilty pleas while apparently still
represented by plea counsel was not put at issue in the trial court or
on appeal, we have ruled on the merits of the appeal rather than
considering whether the underlying motion was a nullity rendering
improper the trial court’s judgment on the merits. See Bradley v.
5 We note that a motion to withdraw a guilty plea filed by counsel, or pro
se by a defendant no longer represented by counsel, after the term of court expires is merely untimely, not a legal nullity, and an order on such a motion may be appealed. See Brooks, 301 Ga. at 751 n.6. We also note that if a defendant files a pro se notice of appeal in the same term of court that his guilty plea was entered and while still represented by plea counsel, the notice itself is a nullity and the appeal should be dismissed for that reason. See, e.g., Soberanis v. State, 345 Ga. App. 403, 405 (812 SE2d 800) (2018). 11 State, 305 Ga. 857, 857 n.1, 863 (828 SE2d 322) (2019); Ringold v.
State, 304 Ga. 875, 875 n.1, 882 (823 SE2d 342) (2019); Johnson v.
State, 303 Ga. 704, 706, 708 (814 SE2d 688) (2018).
In none of these cases, however, did we specifically address the
proper disposition of an appeal from a ruling on a pro se motion that
was inoperative from the start because the appellant was
represented by counsel when the motion was filed. Thus, those
decisions were not precedential holdings that these sorts of appeals
from rulings on legally nugatory motions should be decided on their
merits. See Willis v. State, 304 Ga. 686, 694 (820 SE2d 640) (2018).
(“‘[Q]uestions 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)). Having now focused on the issue, we will henceforth
follow the approach taken in cases like Schoicket, Henderson, and
Williams, and will dismiss appeals from trial court orders that
properly treat as legal nullities motions to withdraw guilty pleas
filed pro se by defendants who are represented by counsel.
12 5. Defendants who plead guilty to criminal charges in Georgia
courts have the right to timely pursue post-conviction remedies,
including a motion to withdraw the guilty plea and an appeal. With
respect to at least those two potential remedies, defendants have a
Sixth Amendment right to the effective assistance of counsel to
advise them about the potential remedy and to pursue the remedy if
appropriate. See White, 302 Ga. at 318 (citing cases recognizing the
potential for an out-of-time appeal from a guilty plea due to plea
counsel’s ineffective assistance with regard to filing a timely direct
appeal); Ringold, 304 Ga. at 878-882 (reiterating that a defendant
has a right to counsel for a timely motion to withdraw a guilty plea
and an appeal from the denial of such a motion). See also Collier v.
State, ___ Ga. ___, ___ (___ SE2d ___) (2019) (holding, in disapproval
of past precedent, that a defendant has an unqualified right to
appeal directly from a judgment entered on a guilty plea). In Ringold
and Collier, this Court has emphasized that defense lawyers
generally have a constitutional duty to consult with their clients
regarding these proceedings, relying on authoritative decisions of
13 the United States Supreme Court regarding ineffective assistance of
counsel in this context. See Ringold, 304 Ga. at 879-881 (discussing
Roe v. Flores-Ortega, 528 U.S. 470 (120 SCt 1029, 145 LE2d 985)
(2000)); Collier, ___ Ga. at ___ (discussing Flores-Ortega and Garza
v. Idaho, ___ U.S. ___ (139 SCt 738, 203 LE2d 77) (2019)).6
If it was not clear enough before, these recent decisions —
6 In Ringold, which was decided a month before Garza, we looked to
Flores-Ortega to explain that if counsel adequately consulted with the defendant about an appeal — meaning that counsel “‘advis[ed] the defendant about the advantages and disadvantages of taking an appeal, and ma[de] a reasonable effort to discover the defendant’s wishes’” — then counsel performs deficiently “only if he fail[s] to ‘follow the defendant’s express directions with respect to an appeal.’” Ringold, 304 Ga. at 879 (quoting Flores-Ortega, 528 U. S. at 478). If counsel did not consult with the defendant, however, the court must determine whether the failure to consult “‘itself constitute[s] deficient performance.’” Id. (quoting same). In this inquiry, the court “‘must take into account all the information counsel knew or should have known.’” Id. (quoting Flores-Ortega, 528 U.S. at 480). “[A] highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Id. (quoting same). In Garza, the Supreme Court reaffirmed Flores-Ortega and held that plea counsel may have a duty to consult with the defendant about an appeal even when a negotiated plea agreement includes a broad appeal waiver. See Garza, 139 SCt at 750. 14 along with our reiteration of White’s holding today — should leave
no doubt that Georgia lawyers cannot simply abandon their criminal
defendant clients immediately after the defendants enter guilty
pleas and are sentenced. Defense counsel are obligated to continue
to represent their clients at least until the time for these post-
conviction remedies expires (and if such a remedy is timely pursued,
until it is resolved) — unless the lawyer is properly authorized by
the trial court to withdraw from the representation or is properly
replaced by substitute counsel, events that should be reflected in
writing in the record for the case. See USCR 4.3 (2) and (3)
(discussing “the entry of an order permitting withdrawal [of
counsel]” and the “fil[ing] with the clerk of court [of] a notice of
substitution of counsel”). The time period for continued
representation after a judgment on a guilty plea is entered will
typically be the longer of 30 days (the deadline for filing a notice of
appeal unless tolled or extended, see OCGA §§ 5-6-38 and 5-6-39),
or the time until the end of the term of court in which the judgment
was entered (the deadline for filing a timely motion to withdraw a
15 guilty plea, see White, 302 Ga. at 320), which may be as short as the
same day or as long as seven months.7
We recognize that these holdings may place difficult burdens
on conscientious defense counsel. A guilty plea may be entered near
or even on the last day of the court’s term, leaving little time to
consult with the defendant and to file a motion to withdraw the plea
if warranted. Or a legal ground on which a motion to withdraw the
guilty plea (or an appeal) would be based may create a conflict of
interest for plea counsel, requiring plea counsel to be replaced by
conflict-free counsel — a process that takes some time, both to
identify new counsel and to comply with USCR 4.3. See Davis v.
State, 301 Ga. 658, 658-659 (802 SE2d 246) (2017) (holding that the
trial court committed reversible error by failing to appoint new
7 The length of the terms for superior courts in Georgia range from two
months for a few heavily populated counties, see, e.g., OCGA § 15-6-3 (3) (Fulton County) to seven months for several smaller counties, see, e.g., id. (4) (C) (Liberty County). A judgment on a guilty plea may be entered as early as the first day of the term or as late as the close of business on the last day, but a defendant is not entitled to more time for filing a motion to withdraw if he pleads guilty later in the term. See, e.g., Barton v. State, 331 Ga. App. 887, 888 (769 SE2d 96) (2015) (involving a defendant who filed an untimely motion to withdraw his guilty plea entered on the last business day of the court term). 16 counsel for the defendant to pursue his motion to withdraw guilty
pleas, after he personally alleged during a hearing that his plea
counsel, who still represented him, provided ineffective assistance).
See also Garland v. State, 283 Ga. 201, 202-205 (657 SE2d 842)
(2008) (explaining that because trial counsel cannot ethically assert
or argue a claim that he himself provided ineffective assistance, if a
claim of ineffective assistance of trial counsel is raised before appeal,
the appellant is entitled to the appointment of conflict-free counsel).8
But before a guilty plea is entered, defense lawyers can explain
to their clients the basic processes for (and limitations on) post-
conviction challenges to guilty pleas, leaving only the decision to be
made about whether to invoke such a process. And when time is
tight, plea counsel may protect their client’s interests by filing a
timely, bare-bones “placeholder” motion to withdraw guilty plea,
which — unlike an untimely motion or an inoperative motion filed
8 Even when a lawyer recognizes a possible conflict of interest that may
require him to withdraw from the representation of a client, he must “take steps to the extent reasonably practicable to protect [the] client’s interests . . . .” Rule 1.16 (d) of the Georgia Rules of Professional Conduct. 17 pro se by the still-represented client — meets the filing deadline and
might be amended later (by conflict-free new counsel if necessary).
See Esprit v. State, 305 Ga. 429, 429 n.1 (826 SE2d 7) (2019) (noting
that one defendant filed a timely motion for new trial through his
trial counsel, which was later amended through new counsel to
assert a claim that trial counsel provided ineffective assistance);
Berrien v. State, 300 Ga. 489, 491 (796 SE2d 718) (2017) (considering
a claim of ineffective assistance of plea counsel raised in an amended
motion to withdraw guilty pleas that was filed by new counsel).
Compare White, 302 Ga. at 320 (rejecting the argument that an
amendment filed by new counsel after the term of court expired
could render timely a timely-filed but inoperative pro se motion to
withdraw guilty pleas); Stokes v. State, 287 Ga. 182, 183-184 (695
SE2d 206) (2010) (explaining that a claim of ineffectiveness of plea
counsel raised in an untimely motion to withdraw a guilty plea does
not render the motion timely).
We also recognize that, unfortunately, some criminal defense
lawyers may not be as conscientious about their duties after their
18 clients plead guilty and are sentenced. Defendants who are
abandoned by their plea counsel have a remedy, however. If a
defendant’s right to appeal from a guilty plea (directly or after filing
a motion to withdraw the plea) is frustrated by the constitutionally
ineffective assistance of plea counsel in advising the defendant
about or pursuing those post-conviction remedies, the defendant
may seek an out-of-time appeal in the trial court or in habeas corpus.
See Collier, ___ Ga. at ___; Ringold, 304 Ga. at 879. See also
Rowland v. State, 264 Ga. 872, 874-875 (452 SE2d 756) (1995). But
see Neal v. State, 232 Ga. 96, 96 (205 SE2d 284) (1974) (holding that
a motion seeking an out-of-time appeal should be filed as a habeas
petition, not in the trial court).9
9 In Collier, we noted but did not decide the question of whether the
process for seeking an out-of-time appeal by motion in the trial court should continue to be allowed along with the process for doing so in habeas corpus. See ___ Ga. at ___. We need not address that question in the posture of this case either. We also note that the Court of Appeals has held that if an out-of- time appeal from a judgment entered on a guilty plea is granted, the defendant is entitled not only to file an appeal with counsel but also to file a motion to withdraw the guilty plea (and indeed must file such a motion to raise and preserve claims that his prior counsel provided ineffective assistance). See Dawson v. State, 302 Ga. App. 842, 843-844 (691 SE2d 886) (2010). This Court appears not to have specifically addressed that issue, however, and we need not do so at this time. 19 6. To sum up, Dos Santos’s pro se motion to withdraw her guilty
pleas, filed while she was still represented by plea counsel, was a
legal nullity. The motion should have been dismissed on that ground
by the trial court, rather than denied on the merits, and on remand
the trial court is directed to dismiss the motion. No appeal will be
available from that dismissal order. Dos Santos has not yet sought
a remedy for her plea counsel’s possible abandonment of her after
her guilty plea, and we express no opinion on whether any such
remedy should be granted.
Judgment vacated and case remanded with direction. All the Justices concur.
DECIDED OCTOBER 21, 2019. Murder. Clayton Superior Court. Before Judge Carter. John W. Kraus, for appellant. Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Jeffrey M. Hawkins, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney General, for appellee.