311 Ga. 367 FINAL COPY
S21A0217. MCDANIEL V. THE STATE.
WARREN, Justice.
Appellant Robert McDaniel appeals pro se from the trial court’s
denial of his motion for out-of-time appeal, his general demurrer,
and his motion in arrest of judgment. For the reasons that follow,
we affirm in part and dismiss in part.
On May 12, 2014, a Paulding County grand jury indicted
McDaniel for malice murder (Count 1); felony murder (Count 2);
possession of a firearm during the commission of the offense of
murder (Count 3); aggravated assault, family violence (Count 4);
possession of a firearm during the commission of aggravated assault
(Count 5); and aggravated stalking (Count 6) in connection with the
shooting death of Maria Nunez-McDaniel. The grand jury also
indicted McDaniel for aggravated assault (Count 7) and possession
of a firearm during the commission of a felony (Count 8) in connection with an assault on Julia Olmos.
On November 4, 2014, McDaniel entered a negotiated guilty
plea to malice murder, possession of a firearm during the
commission of the offense of murder, and aggravated stalking, as
well as to the aggravated assault against Olmos. As part of the plea,
Counts 2, 5, and 8 were nolle prossed, and Count 4 was merged with
the malice murder count. McDaniel was sentenced to serve life with
the possibility of parole for malice murder, a probated five-year
consecutive sentence on Count 3, and two ten-year concurrent
sentences on Counts 6 and 7.
In 2018, McDaniel filed a motion for out-of-time appeal, which
the trial court denied without a hearing. McDaniel filed an
application for discretionary appeal, which we granted under OCGA
§ 5-6-35 (j) because McDaniel had a right of direct appeal. See Case
No. S18D1312 (June 15, 2018). McDaniel then filed a notice of
appeal, and we ultimately vacated the trial court’s order denying his
motion for out-of-time appeal and remanded the case for the trial
court to hold an evidentiary hearing and determine whether plea
2 counsel’s constitutionally ineffective assistance was responsible for
McDaniel’s failure to pursue a timely appeal. See Case No.
S19A0660 (Oct. 21, 2019); Collier v. State, 307 Ga. 363, 376 (834
SE2d 769) (2019).
Following that remand, McDaniel filed a general demurrer and
motion in arrest of judgment in the trial court, contending that the
malice murder and aggravated assault counts of his indictment were
defective because they failed to allege essential elements of those
crimes. In July 2020, the trial court held a hearing on McDaniel’s
motion for out-of-time appeal, his general demurrer, and his motion
in arrest of judgment. On August 27, 2020, the trial court entered
an order denying McDaniel’s motion for out-of-time appeal, ruling
that his plea counsel did not perform deficiently in failing to file an
appeal on McDaniel’s behalf. The next day, the trial court entered
an order denying McDaniel’s general demurrer and his motion in
arrest of judgment, ruling that they were “untimely and
substantively lack[ed] any merit.”
1. In his notice of appeal, McDaniel specified that he was
3 appealing from the trial court’s August 27, 2020 order denying his
motion for out-of-time appeal. However, he did not challenge that
order in his initial brief on appeal. And even to the extent his reply
brief could perhaps be construed as challenging that order,
McDaniel is not entitled to have the challenge considered when it is
not raised in his initial brief. See Williams v. State, 307 Ga. 689,
689 n.2 (838 SE2d 314) (2020) (holding that a pro se appellant “‘who
raises an argument for the first time in a reply brief is not entitled
to have that argument considered’” (citation omitted)). In any event,
however, a claim that the trial court erred in denying McDaniel’s
motion for out-of-time appeal would be without merit.1
Where, as here, “a defendant alleges that he was deprived of
an appeal of right that he otherwise would have pursued by his
counsel’s constitutionally deficient performance in providing advice
about or acting upon such appeal, that alleged violation ‘is reviewed
under the familiar standard of Strickland v. Washington, 466 U. S.
1 It appears that McDaniel may have thought that this Court granted
him an out-of-time appeal when it granted his application for discretionary appeal under OCGA § 5-6-35 (j), but that is not so. 4 668 (104 SCt 2052, 80 LE2d 674) (1984).’” Davis v. State, 310 Ga.
547, 549 (852 SE2d 517) (2020) (quoting Moore v. State, 308 Ga. 312,
313 (840 SE2d 353) (2020) (punctuation omitted)).
With respect to the first component of the Strickland standard, the defendant must show that his appeal of right was lost as a consequence of his counsel’s deficient performance, and the trial court must make a factual inquiry into those allegations. With respect to the second component of the Strickland standard, the defendant is required to demonstrate only that there is a reasonable probability that, but for counsel’s deficient performance, he would have timely appealed.
Id. (citation and punctuation omitted).
To determine whether counsel was constitutionally ineffective for failing to file a timely notice of appeal, the first question that must be answered is whether counsel “consulted” with the defendant about an appeal — that is, whether 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.” If counsel adequately consulted with the defendant, counsel performed deficiently only if he failed “to follow the defendant’s express instructions with respect to an appeal.”
Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019)
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 478 (120 SCt 1029,
145 LE2d 985) (2000)). “However, if counsel did not consult
5 with the defendant, ‘the court must in turn ask a second, and
subsidiary, question: whether counsel’s failure to consult with
the defendant itself constitute(d) deficient performance.’”
Ringold, 304 Ga. at 879 (quoting Flores-Ortega, 528 U.S. at
478). And
[c]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
Id. (quoting Flores-Ortega, 528 U.S. at 480 (punctuation omitted)).
In making this determination, courts must take into account all the information counsel knew or should have known. See [Strickland,] 466 U.S. at 690 (focusing on the totality of the circumstances). Although not determinative, 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.
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311 Ga. 367 FINAL COPY
S21A0217. MCDANIEL V. THE STATE.
WARREN, Justice.
Appellant Robert McDaniel appeals pro se from the trial court’s
denial of his motion for out-of-time appeal, his general demurrer,
and his motion in arrest of judgment. For the reasons that follow,
we affirm in part and dismiss in part.
On May 12, 2014, a Paulding County grand jury indicted
McDaniel for malice murder (Count 1); felony murder (Count 2);
possession of a firearm during the commission of the offense of
murder (Count 3); aggravated assault, family violence (Count 4);
possession of a firearm during the commission of aggravated assault
(Count 5); and aggravated stalking (Count 6) in connection with the
shooting death of Maria Nunez-McDaniel. The grand jury also
indicted McDaniel for aggravated assault (Count 7) and possession
of a firearm during the commission of a felony (Count 8) in connection with an assault on Julia Olmos.
On November 4, 2014, McDaniel entered a negotiated guilty
plea to malice murder, possession of a firearm during the
commission of the offense of murder, and aggravated stalking, as
well as to the aggravated assault against Olmos. As part of the plea,
Counts 2, 5, and 8 were nolle prossed, and Count 4 was merged with
the malice murder count. McDaniel was sentenced to serve life with
the possibility of parole for malice murder, a probated five-year
consecutive sentence on Count 3, and two ten-year concurrent
sentences on Counts 6 and 7.
In 2018, McDaniel filed a motion for out-of-time appeal, which
the trial court denied without a hearing. McDaniel filed an
application for discretionary appeal, which we granted under OCGA
§ 5-6-35 (j) because McDaniel had a right of direct appeal. See Case
No. S18D1312 (June 15, 2018). McDaniel then filed a notice of
appeal, and we ultimately vacated the trial court’s order denying his
motion for out-of-time appeal and remanded the case for the trial
court to hold an evidentiary hearing and determine whether plea
2 counsel’s constitutionally ineffective assistance was responsible for
McDaniel’s failure to pursue a timely appeal. See Case No.
S19A0660 (Oct. 21, 2019); Collier v. State, 307 Ga. 363, 376 (834
SE2d 769) (2019).
Following that remand, McDaniel filed a general demurrer and
motion in arrest of judgment in the trial court, contending that the
malice murder and aggravated assault counts of his indictment were
defective because they failed to allege essential elements of those
crimes. In July 2020, the trial court held a hearing on McDaniel’s
motion for out-of-time appeal, his general demurrer, and his motion
in arrest of judgment. On August 27, 2020, the trial court entered
an order denying McDaniel’s motion for out-of-time appeal, ruling
that his plea counsel did not perform deficiently in failing to file an
appeal on McDaniel’s behalf. The next day, the trial court entered
an order denying McDaniel’s general demurrer and his motion in
arrest of judgment, ruling that they were “untimely and
substantively lack[ed] any merit.”
1. In his notice of appeal, McDaniel specified that he was
3 appealing from the trial court’s August 27, 2020 order denying his
motion for out-of-time appeal. However, he did not challenge that
order in his initial brief on appeal. And even to the extent his reply
brief could perhaps be construed as challenging that order,
McDaniel is not entitled to have the challenge considered when it is
not raised in his initial brief. See Williams v. State, 307 Ga. 689,
689 n.2 (838 SE2d 314) (2020) (holding that a pro se appellant “‘who
raises an argument for the first time in a reply brief is not entitled
to have that argument considered’” (citation omitted)). In any event,
however, a claim that the trial court erred in denying McDaniel’s
motion for out-of-time appeal would be without merit.1
Where, as here, “a defendant alleges that he was deprived of
an appeal of right that he otherwise would have pursued by his
counsel’s constitutionally deficient performance in providing advice
about or acting upon such appeal, that alleged violation ‘is reviewed
under the familiar standard of Strickland v. Washington, 466 U. S.
1 It appears that McDaniel may have thought that this Court granted
him an out-of-time appeal when it granted his application for discretionary appeal under OCGA § 5-6-35 (j), but that is not so. 4 668 (104 SCt 2052, 80 LE2d 674) (1984).’” Davis v. State, 310 Ga.
547, 549 (852 SE2d 517) (2020) (quoting Moore v. State, 308 Ga. 312,
313 (840 SE2d 353) (2020) (punctuation omitted)).
With respect to the first component of the Strickland standard, the defendant must show that his appeal of right was lost as a consequence of his counsel’s deficient performance, and the trial court must make a factual inquiry into those allegations. With respect to the second component of the Strickland standard, the defendant is required to demonstrate only that there is a reasonable probability that, but for counsel’s deficient performance, he would have timely appealed.
Id. (citation and punctuation omitted).
To determine whether counsel was constitutionally ineffective for failing to file a timely notice of appeal, the first question that must be answered is whether counsel “consulted” with the defendant about an appeal — that is, whether 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.” If counsel adequately consulted with the defendant, counsel performed deficiently only if he failed “to follow the defendant’s express instructions with respect to an appeal.”
Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019)
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 478 (120 SCt 1029,
145 LE2d 985) (2000)). “However, if counsel did not consult
5 with the defendant, ‘the court must in turn ask a second, and
subsidiary, question: whether counsel’s failure to consult with
the defendant itself constitute(d) deficient performance.’”
Ringold, 304 Ga. at 879 (quoting Flores-Ortega, 528 U.S. at
478). And
[c]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
Id. (quoting Flores-Ortega, 528 U.S. at 480 (punctuation omitted)).
In making this determination, courts must take into account all the information counsel knew or should have known. See [Strickland,] 466 U.S. at 690 (focusing on the totality of the circumstances). Although not determinative, 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. Only by considering all relevant factors in
6 a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
Davis, 310 Ga. at 551 (quoting Flores-Ortega, 528 U.S. at 480
(punctuation omitted)).
At the hearing on McDaniel’s motion for out-of-time appeal,
plea counsel testified that at the time of the plea proceedings,
McDaniel did not indicate to her that he wanted to appeal his plea
and sentence and that he never contacted her about the case from
the time of the plea in November 2014 to the time plea counsel left
the public defender’s office in November 2015. She also testified
that McDaniel, who was 46 years old at the time of the plea, was
concerned about receiving a sentence of life without the possibility
of parole. When asked if “a big part of [the] plea negotiations” was
“to ensure” that McDaniel received a sentence of life with the
possibility of parole, plea counsel testified, “Yeah, I mean . . . , I can’t
remember exactly . . . my line of thought . . . . But from my
experience, I can tell you that with a murder charge, yes, that is
7 always going to be a concern and part of the thought process.” Plea
counsel acknowledged that she discussed with McDaniel paragraph
18 of the plea agreement, which provided that McDaniel understood
“that any motion to withdraw this guilty plea must be filed within
this term of court.” But she testified that apart from the plea
agreement, she did not advise McDaniel about his right to appeal
from the plea.
The trial court found that plea counsel did not consult with
McDaniel about his right to appeal following the entry of his plea,
and the State does not dispute that finding on appeal. Nonetheless,
the trial court concluded that plea counsel’s failure to consult was
not constitutionally deficient based on the considerations set forth
in Flores-Ortega, 528 U.S. at 480, and we conclude that the trial
court did not err in reaching that conclusion.
First, plea counsel testified that McDaniel never expressed to
her an interest in appealing from his guilty plea, either immediately
following the plea or at any time before she left the public defender’s
office about a year later. Second, a “highly relevant factor in this
8 inquiry” is that McDaniel’s convictions followed his plea of guilty.
Id. Moreover, McDaniel “received the sentence bargained for as part
of the plea.” Id. Indeed, plea counsel explained to McDaniel during
the plea proceedings that he could seek to withdraw his plea, but
McDaniel never indicated to plea counsel a desire to do so. Finally,
we note that, at the guilty plea hearing, McDaniel apologized to the
victims’ families, saying that he was “so sorry for what happened,”
and apologized to his mother, telling her that he was sorry that he
had disappointed her. He also added that “[t]he time that I have to
serve I will serve it with my head focused, with my spirit focused.”
Plea counsel and the trial court could have reasonably viewed such
a statement as indicative of a defendant who was pleading guilty to
“seek[ ] an end to judicial proceedings.” Id. For these reasons, we
conclude that the trial court did not err when it determined that plea
counsel would not have had reason to think that a rational
defendant would have wanted to appeal, or that McDaniel
reasonably demonstrated to counsel that he was interested in
appealing. See id.
9 Accordingly, because the trial court did not err by concluding
that McDaniel failed to show that his appeal of right was lost as a
result of his counsel’s constitutionally deficient performance, it also
did not abuse its discretion in denying McDaniel’s motion for out-of-
time appeal. See Davis, 310 Ga. at 551 (concluding that the trial
court did not abuse its discretion in denying the defendant’s motion
for out-of-time appeal based on ineffective assistance of counsel
because “[n]othing in the record before the trial court supported a
finding that a rational convicted defendant would have sought an
appeal” where, among other things, “the record show[ed] that [the
defendant] got the benefit of the plea bargain offered by the
prosecutor,” “did not express any dissatisfaction with the plea
agreement,” and “reserved no grounds for an appeal”). See also
Fields v. United States, 577 Fed. Appx. 916, 919 (11th Cir. 2014) (per
curiam) (cited in Davis, 310 Ga. at 552, for the proposition that “[t]he
district judge did not err in finding that plea counsel had no duty to
consult under the circumstances, including that ‘no rational
convicted defendant would have wanted to appeal in these
10 circumstances, because of the guilty plea and Fields having received
the sentence he had sought’”).
2. McDaniel contends that the trial court erred in denying his
general demurrer. However, to the extent McDaniel claims that we
should review the denial of his general demurrer as part of an appeal
from his convictions, we have no jurisdiction to do so. Indeed,
because McDaniel “has not been granted an out-of-time appeal,”
there has been “no valid notice of appeal from his convictions,” and
we therefore “have no jurisdiction . . . to review any claims
challenging his convictions.” Clark v. State, 310 Ga. 489, 490 n.2
(852 SE2d 522) (2020). Accord Cole v. State, 310 Ga. 566, 566 n.1
(852 SE2d 533) (2020). Accordingly, we dismiss that portion of
McDaniel’s appeal.
3. McDaniel also contends that the trial court erred in denying
his motion in arrest of judgment in which he raised the same claims
regarding the alleged defects in his indictment that he raised in his
general demurrer. See State v. Heath, 308 Ga. 836, 840 n.2 (843
SE2d 801) (2020) (explaining that a general demurrer may be
11 “raised in the form of a motion in arrest of judgment”). But we need
not decide the merits of McDaniel’s claims because his motion in
arrest of judgment was untimely.
“A motion in arrest of judgment must be made during the term
[of court] at which the judgment was obtained.” OCGA § 17-9-61 (b);
see Ballard v. State, 304 Ga. 67, 67 (815 SE2d 824) (2018). McDaniel
was convicted in November 2014 during the July term of the
Paulding County Superior Court. See OCGA § 15-6-3 (31.1)
(providing that the terms of court for the Paulding County Superior
Court begin on the “Second Monday in January and July”). Because
McDaniel filed his motion in arrest of judgment on December 11,
2019, it was not filed timely, and “the trial court was without
jurisdiction to rule on [it].” Ballard, 304 Ga. at 67.
When a trial court lacks jurisdiction over a motion, it should
dismiss, rather than deny, the motion.2 See Moore v. State, 303 Ga.
2 We note that a motion in arrest of judgment is an authorized motion in
a criminal case, just one that “must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 (b). Therefore, assuming that there is no factor that would make such a motion a legal nullity, such as being filed
12 743, 747 (814 SE2d 676) (2018). So when a trial court is presented
with a motion that it lacks jurisdiction to decide and denies the
motion solely on the merits, we vacate the trial court’s order and
remand with instructions to dismiss the motion. Ballard, 304 Ga.
at 67-68.
Here, however, the trial court denied McDaniel’s motion in
arrest of judgment on two grounds: that it was untimely and that it
“substantively lack[ed] any merit.” And because the trial court
denied the motion on jurisdictional grounds in addition to denying
it on the merits, we do not treat the order as one “in which the trial
court merely decided the merits of a motion over which it lacked
jurisdiction.” Moore, 303 Ga. at 747. Accordingly, “it is not
necessary for us to vacate the order and remand to the trial court
with instructions to dismiss” the motion, and we simply affirm the
by a defendant being represented by counsel, a motion in arrest of judgment that is filed after the term at which the judgment was obtained is merely untimely, not a legal nullity, and does not deprive this Court of jurisdiction of an appeal from a ruling on such a motion. See Dos Santos v. State, 307 Ga. 151, 156 n.5 (834 SE2d 733) (2019); Bonner v. State, 310 Ga. 426, 427 (851 SE2d 578) (2020). 13 denial of the motion instead. See id.
Judgment affirmed in part and dismissed in part. All the Justices concur.
Decided April 5, 2021 —Reconsideration denied May 3, 2021.
Murder. Paulding Superior Court. Before Judge Bucci.
Robert S. McDaniel, pro se.
Dick Donovan, District Attorney, Anthony B. Williams,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Michael A. Oldham,
Assistant Attorney General, for appellee.