THIRD DIVISION MILLER, P. J., MCFADDEN and MCMILLIAN, 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
September 14, 2016
In the Court of Appeals of Georgia A16A1222. MORRIS v. THE STATE.
MILLER, Presiding Judge.
John Morris appeals the trial court’s denial of his motion for out-of-time
appeal, contending that his trial counsel provided ineffective assistance by failing to
adequately inform him of his appeal rights and in failing to obtain his consent to
forego an appeal. We agree that the trial court abused its discretion in denying
Morris’s motion for out-of-time appeal because he did not get adequate notice of his
appeal rights and did not voluntarily choose to waive those rights. We therefore
reverse.
The defendant bears the burden of demonstrating through the record that he is
entitled to an out-of-time appeal. Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735)
(2003). We review a trial court’s denial of a motion for out-of-time appeal for an abuse of discretion. Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001).
We will affirm the trial court’s findings of fact as to whether a defendant was
informed of his appeal rights by counsel and voluntarily waived them, so long as
there is any evidence to support those findings. Id. Nevertheless, “where the trial
court has clearly erred in some of its findings of fact . . . the deference owed the trial
court’s ultimate ruling is diminished.” (Citation omitted.) State v. Porter, 288 Ga.
524, 526 (2) (a) (705 SE2d 636) (2011).
So viewed, the record shows that following a jury trial, where he was
represented by counsel, Morris was convicted of one count of aggravated child
molestation (OCGA § 16-6-4 (d) (1)) and one count of child molestation (OCGA §
16-6-4 (b) (1)). The trial court did not inform Morris of his appellate rights after his
conviction or at sentencing. Trial counsel then filed a motion for new trial, rather than
a notice of appeal. After the trial court denied the new trial motion, Morris did not file
a timely appeal, though he subsequently filed a motion for out-of-time appeal.
Morris approved of his trial counsel, however, Morris’s family actually hired
and paid his counsel, and the family was highly involved in Morris’s defense. Trial
2 counsel spoke in greater detail with Morris’s father than he did with Morris about
how to proceed with the defense.1
Trial counsel admitted that he did not have a single set “spiel” that he used to
inform his clients of their appellate rights, although he usually told them “something
about where they go from here.” Importantly, most of trial counsel’s communications
about the defense of Morris’s case were with Morris’s father, even though trial
counsel acknowledged he needed to speak to Morris directly. Indeed, after the denial
of Morris’s motion for new trial, trial counsel specifically recalled speaking with
Morris’s father about Morris’s appellate rights by telling the father that he “would be
glad to do it,” but he “didn’t think it was a good investment” because he “didn’t think
there was any error that an appellate court would use to reverse the jury’s decision in
th[e] case.” Trial counsel further told Morris’s father that he did not recommend
utilizing the public defender’s office because, in his opinion, “they [do] a very weak
job on appeal.”
Although trial counsel testified at the motion for out-of-time appeal hearing
that he met with Morris after the trial and “talked to him [regarding] something about
1 Trial counsel stated that Morris gave him permission to talk with Morris’s father about the case.
3 appeal,” he could not definitively remember what he told Morris after denial of the
motion for new trial regarding his appeal rights. Trial counsel thought he had a
conversation with Morris similar to the one he had with Morris’s father, but he could
not be sure. It was trial counsel’s “impression” that the decision not to appeal was
made by Morris and his family, and he “thought” that Morris and his family were
“consulting together” to decide how to proceed. Nevertheless, trial counsel admitted
that he never discussed Morris’s appeal rights with both Morris and his father present
at the same time and he was not sure that Morris ever told him that he consulted with
his father and decided not to appeal. Notably, there is no evidence that trial counsel
told either Morris or his father that Morris had only thirty days after the denial of the
motion for new trial in which to file an appeal.
Morris, on the other hand, testified at the motion for out-of-time appeal hearing
that after denial of the motion for new trial, trial counsel never discussed filing an
appeal with him, he was unaware of the time deadline or process for filing an appeal,
and he assumed trial counsel “was on top of everything.” Morris acknowledged
knowing that he “could have counsel for appeal,” but he claimed that he “wasn’t even
sure what the appeal was.” Morris claimed that he learned months later that no appeal
had been undertaken, at which point he engaged new counsel to pursue one.
4 The trial court’s order denying Morris’s motion for out-of-time appeal
contained a number of factual findings, including its findings that Morris “was
advised of his right to appeal in a timely fashion,” Morris knew he had the right to
counsel on appeal, trial counsel discussed with Morris the relative costs and benefits
of pursuing an appeal, and Morris did not retain trial counsel to file an appeal.
1. In two interrelated enumerations of error, Morris argues that trial counsel
was ineffective for failing to adequately advise him of his appeal rights or get his
consent to forego an appeal. We agree.
“A criminal defendant who has lost his right to appellate review of his
conviction due to error of counsel is entitled to an out-of-time appeal.” (Citation
omitted.) Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995).
The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.
(Punctuation omitted; emphasis supplied.) Glass, supra, 248 Ga. App. at 92 (1).
5 A “[d]efendant’s right to effective assistance of counsel includes the right to
be informed of the right to appeal and the right to counsel on appeal, including the
right to appointed counsel for indigent defendants.” (Citation omitted.) Floyd v. State,
279 Ga. App. 21, 23 (630 SE2d 168) (2006); see also Haynes v. State, 227 Ga. App.
64, 65 (488 SE2d 119) (1997) (reversing denial of motion for out-of-time appeal
where record did not reflect that defendant was informed of his rights or the time
constraints involved). “The right to appeal is [also] violated when the [] lawyer
deliberately forgoes the direct appeal without first obtaining his client’s consent.”
Glass, supra, 248 Ga. App.
Free access — add to your briefcase to read the full text and ask questions with AI
THIRD DIVISION MILLER, P. J., MCFADDEN and MCMILLIAN, 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
September 14, 2016
In the Court of Appeals of Georgia A16A1222. MORRIS v. THE STATE.
MILLER, Presiding Judge.
John Morris appeals the trial court’s denial of his motion for out-of-time
appeal, contending that his trial counsel provided ineffective assistance by failing to
adequately inform him of his appeal rights and in failing to obtain his consent to
forego an appeal. We agree that the trial court abused its discretion in denying
Morris’s motion for out-of-time appeal because he did not get adequate notice of his
appeal rights and did not voluntarily choose to waive those rights. We therefore
reverse.
The defendant bears the burden of demonstrating through the record that he is
entitled to an out-of-time appeal. Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735)
(2003). We review a trial court’s denial of a motion for out-of-time appeal for an abuse of discretion. Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001).
We will affirm the trial court’s findings of fact as to whether a defendant was
informed of his appeal rights by counsel and voluntarily waived them, so long as
there is any evidence to support those findings. Id. Nevertheless, “where the trial
court has clearly erred in some of its findings of fact . . . the deference owed the trial
court’s ultimate ruling is diminished.” (Citation omitted.) State v. Porter, 288 Ga.
524, 526 (2) (a) (705 SE2d 636) (2011).
So viewed, the record shows that following a jury trial, where he was
represented by counsel, Morris was convicted of one count of aggravated child
molestation (OCGA § 16-6-4 (d) (1)) and one count of child molestation (OCGA §
16-6-4 (b) (1)). The trial court did not inform Morris of his appellate rights after his
conviction or at sentencing. Trial counsel then filed a motion for new trial, rather than
a notice of appeal. After the trial court denied the new trial motion, Morris did not file
a timely appeal, though he subsequently filed a motion for out-of-time appeal.
Morris approved of his trial counsel, however, Morris’s family actually hired
and paid his counsel, and the family was highly involved in Morris’s defense. Trial
2 counsel spoke in greater detail with Morris’s father than he did with Morris about
how to proceed with the defense.1
Trial counsel admitted that he did not have a single set “spiel” that he used to
inform his clients of their appellate rights, although he usually told them “something
about where they go from here.” Importantly, most of trial counsel’s communications
about the defense of Morris’s case were with Morris’s father, even though trial
counsel acknowledged he needed to speak to Morris directly. Indeed, after the denial
of Morris’s motion for new trial, trial counsel specifically recalled speaking with
Morris’s father about Morris’s appellate rights by telling the father that he “would be
glad to do it,” but he “didn’t think it was a good investment” because he “didn’t think
there was any error that an appellate court would use to reverse the jury’s decision in
th[e] case.” Trial counsel further told Morris’s father that he did not recommend
utilizing the public defender’s office because, in his opinion, “they [do] a very weak
job on appeal.”
Although trial counsel testified at the motion for out-of-time appeal hearing
that he met with Morris after the trial and “talked to him [regarding] something about
1 Trial counsel stated that Morris gave him permission to talk with Morris’s father about the case.
3 appeal,” he could not definitively remember what he told Morris after denial of the
motion for new trial regarding his appeal rights. Trial counsel thought he had a
conversation with Morris similar to the one he had with Morris’s father, but he could
not be sure. It was trial counsel’s “impression” that the decision not to appeal was
made by Morris and his family, and he “thought” that Morris and his family were
“consulting together” to decide how to proceed. Nevertheless, trial counsel admitted
that he never discussed Morris’s appeal rights with both Morris and his father present
at the same time and he was not sure that Morris ever told him that he consulted with
his father and decided not to appeal. Notably, there is no evidence that trial counsel
told either Morris or his father that Morris had only thirty days after the denial of the
motion for new trial in which to file an appeal.
Morris, on the other hand, testified at the motion for out-of-time appeal hearing
that after denial of the motion for new trial, trial counsel never discussed filing an
appeal with him, he was unaware of the time deadline or process for filing an appeal,
and he assumed trial counsel “was on top of everything.” Morris acknowledged
knowing that he “could have counsel for appeal,” but he claimed that he “wasn’t even
sure what the appeal was.” Morris claimed that he learned months later that no appeal
had been undertaken, at which point he engaged new counsel to pursue one.
4 The trial court’s order denying Morris’s motion for out-of-time appeal
contained a number of factual findings, including its findings that Morris “was
advised of his right to appeal in a timely fashion,” Morris knew he had the right to
counsel on appeal, trial counsel discussed with Morris the relative costs and benefits
of pursuing an appeal, and Morris did not retain trial counsel to file an appeal.
1. In two interrelated enumerations of error, Morris argues that trial counsel
was ineffective for failing to adequately advise him of his appeal rights or get his
consent to forego an appeal. We agree.
“A criminal defendant who has lost his right to appellate review of his
conviction due to error of counsel is entitled to an out-of-time appeal.” (Citation
omitted.) Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995).
The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.
(Punctuation omitted; emphasis supplied.) Glass, supra, 248 Ga. App. at 92 (1).
5 A “[d]efendant’s right to effective assistance of counsel includes the right to
be informed of the right to appeal and the right to counsel on appeal, including the
right to appointed counsel for indigent defendants.” (Citation omitted.) Floyd v. State,
279 Ga. App. 21, 23 (630 SE2d 168) (2006); see also Haynes v. State, 227 Ga. App.
64, 65 (488 SE2d 119) (1997) (reversing denial of motion for out-of-time appeal
where record did not reflect that defendant was informed of his rights or the time
constraints involved). “The right to appeal is [also] violated when the [] lawyer
deliberately forgoes the direct appeal without first obtaining his client’s consent.”
Glass, supra, 248 Ga. App. at 92 (1).
Here, Morris contends that he was denied his right to a timely appeal due to
trial counsel’s failure to adequately notify him of his appeal rights or obtain his
consent to forego an appeal. As set forth above, this Court must defer to the trial
court’s factual findings if there is any evidence to support them. Glass, supra, 248 Ga.
App. at 92 (1). Nevertheless, we owe less deference to the trial court’s ultimate ruling
where the trial court has clearly erred in making its factual findings. Porter, supra,
288 Ga. at 526 (2) (a).
Here, there is simply no evidence to support the trial court’s finding that trial
counsel notified Morris of his appeal rights and that Morris voluntarily waived them.
6 Further, there is no evidence that either Morris or his father was informed that Morris
had only thirty days in which to pursue an appeal. Instead, the record clearly shows
that trial counsel assumed that Morris’s father would convey trial counsel’s advice
to Morris, and assumed that Morris’s failure to take steps towards an appeal were the
result of deliberation between Morris and his family.
In so holding, we note that trial courts are permitted to rely upon testimony
from trial counsel about what he or she invariably tells all clients about appeal rights,
including deadlines, even when the attorney lacks specific recollection of the
conversation. See e.g., Butts v. State, 244 Ga. App. 366, 367 (536 SE2d 154) (2000);
Jackson v. Hopper, 243 Ga. 41 (252 SE2d 467) (1979). In this case, however, trial
counsel was unable to provide even that minimum level of specificity. Instead, trial
counsel testified that he did not have a set “spiel” that he provided to clients except
for the vague statement that he usually would “tell [clients] something about where
they go from here.”
On this record, there simply was no evidence on which the trial court could rely
to find that Morris was adequately advised of his appeal rights, including the deadline
to assert those rights, and there was no evidence showing that he voluntarily chose
to waive his appeal rights. Consequently, we find that trial counsel bore the
7 responsibility for the failure to timely appeal and, thus, was constitutionally
ineffective. Accordingly, we reverse the trial court’s denial of Morris’s motion for
out-of-time appeal.
2. In light of our holding in Division 1, we need not address Morris’s remaining
enumeration of error.
Judgment reversed. McFadden and McMillian, JJ., concur.