Jones v. State

840 S.E.2d 357, 308 Ga. 337

• Court: Supreme Court of Georgia
• Decided: March 13, 2020
• Docket: S20A0372
• Status: Published

Opinion

308 Ga. 337 FINAL COPY

S20A0372. JONES v. THE STATE.

PETERSON, Justice.

Tracy Jones, who pleaded guilty to murder and other offenses,

filed a motion for out-of-time appeal, claiming that her plea counsel

abandoned her after sentencing and that her right to appeal was

thereby frustrated. The trial court denied Jones’s motion on the

basis that she did not allege that her failure to file a timely appeal

was due to ineffective assistance of counsel. But she did sufficiently

state such an allegation in her pro se motion, and so we vacate and

remand for a hearing as to whether counsel’s ineffectiveness in fact

frustrated her right to appeal.

On November 18, 2013, Jones pleaded guilty to malice murder,

three counts of felony murder, aggravated assault, burglary, false

imprisonment, and theft by taking, all stemming from the October

2012 death of Gail Spencer. The trial court sentenced Jones to life

without parole for malice murder, along with several additional concurrent sentences for other offenses. Jones did not file a direct

appeal from her convictions and sentences.1

On June 13, 2019, Jones filed a pro se motion for an out-of-time

appeal. She claimed that she “was abandoned by [plea counsel] after

sentencing, during the 30 days she had to file a direct appeal from

the guilty plea, as well as the term of the court in which she had to

withdraw her guilty plea.” She added that the date of her guilty plea

and sentencing was the last time she spoke with appointed counsel.

The trial court denied the motion for out-of-time appeal on July 9,

2019. Jones appeals that order.

We review a trial court’s denial of a motion to file an out-of-

time appeal for an abuse of discretion. See McCarthy v. State, 301

Ga. 803, 805 (1) (804 SE2d 424) (2017). A defendant seeking an out-

of-time appeal “must allege and prove an excuse of constitutional

magnitude for failing to file a timely direct appeal,” usually by

showing that counsel’s ineffectiveness deprived the defendant of the

1 In April 2019, Jones filed an appeal from a trial court order denying

her motion seeking free copies of documents from her case; that appeal was dismissed. right to an appeal. Collier v. State, 307 Ga. 363, 364 (1) (834 SE2d

769) (2019) (quoting Bailey v. State, 306 Ga. 364, 364 (828 SE2d 300)

(2019)). “When a defendant alleges he was deprived of his appeal of

right due to trial counsel’s ineffective assistance, the court must

determine whether counsel was responsible for the failure to pursue

a timely appeal.” Collier, 307 Ga. at 365 (1) n.1. “A trial court abuses

its discretion when it fails to make such a factual inquiry.” Id.

(citation and punctuation omitted). In order to obtain an out-of-time

appeal, a defendant need not show that she actually would have

prevailed in a timely appeal, even if she is seeking to appeal directly

from a judgment entered on a guilty plea. See id. at 365 (1).

Here, the trial court recognized as a general matter that a

defendant is entitled to an out-of-time appeal when the defendant’s

failure to file a timely appeal was caused by ineffective assistance of

counsel. The trial court nonetheless ruled that Jones was not

entitled to an out-of-time appeal because she had “not alleged that

ineffective assistance of counsel was the cause of any failure on the

part of the defendant to file a timely direct appeal from the judgment entered on her guilty plea.” But reading Jones’s motion generously

in the light of her pro se status, Jones does allege that her failure to

file a timely appeal was due to the ineffective assistance of counsel.

Specifically, Jones alleges that any rational person sentenced to life

without parole — including, presumably, herself — would want to

take advantage of any opportunity to appeal. And she alleges that

she was abandoned by her plea counsel immediately after

sentencing, throughout the 30 days she had to file a direct appeal

and the term of court during which she might withdraw her guilty

plea. “[D]efense 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.” Dos Santos v. State, 307 Ga. 151, 153 (2) (834 SE2d

733) (2019) (citation and punctuation omitted). And, absent an entry

of an order allowing counsel to withdraw or compliance with the

requirements for substitution of counsel, legal representation

continues at a minimum “through the end of the term at which a

trial court enters a judgment of conviction and sentence on a guilty

plea,” the deadline for filing a motion to withdraw a guilty plea. Id. at 153-154 (2), (3) (citation and punctuation omitted). Moreover, if

Jones in fact was abandoned by her counsel while she was still

formally represented, she could not have filed a notice of appeal, as

she alleges she desired to do; any pro se filing in this regard would

have been a nullity. See id. at 154-155 (2), (3). Thus, by alleging both

that she desired to appeal and that her counsel abandoned her

during the time for filing a timely notice of appeal, Jones necessarily

has alleged that her failure to file a timely appeal was due to

counsel’s deficient performance in abandoning her. The trial court

abused its discretion in denying Jones’s motion solely based on the

inadequacy of her allegations. We therefore vacate the trial court’s

order and remand for the trial court to conduct a hearing and

determine whether counsel was responsible for Jones’s failure to

pursue a timely appeal.

Judgment vacated and case remanded. Melton, C. J., Nahmias,

P. J., and Blackwell, Boggs, Warren, Bethel, and Ellington, JJ.,

concur. DECIDED MARCH 13, 2020. Murder. Bibb Superior Court. Before Judge Simms. Tracy Michelle Jones, pro se. K. David Cooke, Jr., District Attorney, Shelley T. Milton, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.