Rutledge v. State

870 S.E.2d 720, 313 Ga. 460

• Court: Supreme Court of Georgia
• Decided: March 15, 2022
• Docket: S21A1036
• Status: Published

Opinion

313 Ga. 460 FINAL COPY

S21A1036. RUTLEDGE v. THE STATE.

LAGRUA, Justice.

Appellant Marcus Rutledge pled guilty to malice murder in

connection with the April 2016 shooting death of Brian Williams.

Appellant filed a motion for an out-of-time appeal in the trial court,

which entered an order denying the motion. For the reasons

explained below, the trial court should have dismissed, rather than

denied, the motion, and we vacate the trial court’s order and remand

for entry of the appropriate dismissal order.

The record shows that in June 2016, Appellant was indicted for

malice murder, two counts of felony murder, aggravated battery,

aggravated assault, and possession of a firearm during the

commission of a felony. In February 2018, Appellant entered a

negotiated guilty plea to malice murder and was sentenced to life in

prison with the possibility of parole. The remaining counts were nolle prossed. Appellant did not file a notice of appeal within 30 days

from the judgment entered on his guilty plea. See OCGA § 5-6-38

(a).

In July 2019, Appellant filed pro se a motion for an out-of-time

appeal, alleging that he was entitled to an out-of-time appeal from

his guilty plea conviction if there was “a possible ground for appeal,

about which his lawyer failed to inform him.” The trial court

summarily denied the motion without a hearing. Appellant appealed

to this Court, and we determined that, under Collier v. State, 307

Ga. 363 (834 SE2d 769) (2019), Appellant was entitled to an

evidentiary hearing on his motion. See Rutledge v. State, 309 Ga.

508, 510 (2) (847 SE2d 143) (2020). We therefore vacated the trial

court’s order in part and remanded the case, directing the trial court

to conduct an evidentiary hearing and determine whether counsel’s

ineffective assistance was responsible for Appellant’s failure to

pursue a timely appeal. See id.1

1 We also affirmed part of the trial court’s judgment, holding that the

trial court properly denied Appellant’s request for a copy of his case file and transcript. See Rutledge, 309 Ga. at 510-511 (3).

2 On remand, the trial court held an evidentiary hearing where

Appellant was represented by counsel. In December 2020, the trial

court denied the motion for an out-of-time appeal on the merits, and

Appellant timely appealed to this Court.

On appeal, Appellant contends the trial court erred in denying

his motion for an out-of-time appeal because plea counsel rendered

ineffective assistance by failing to advise him of his right to appeal

from his guilty plea or to withdraw his guilty plea. See Collier, 307

Ga. at 371 (2) (“[W]hen a criminal defendant demonstrates that his

appeal of right has been frustrated by a violation of constitutional

magnitude, the failure to file a timely notice of appeal may be

excused and the constitutional violation remedied by the provision

of an out-of-time appeal.”)

However, today in Cook v. State, 313 Ga. 471, 505 (5) (870 SE2d

758) (2022), we hold

that there was and is no legal authority for motions for out-of-time appeal in trial courts and that the out-of-time appeal procedure allowed in King [v. State, 233 Ga. 630 (212 SE2d 807) (1975)] and Furgerson [v. State, 234 Ga. 594, 595 (216 SE2d 845) (1975)], approved in Rowland [v.

3 State, 264 Ga. 872, 874-875 (2) (452 SE2d 756) (1995)], and followed in other cases, is not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations. Our holding applies to this case and to all cases that are currently on direct review or otherwise not yet final.

Id. at 506 (5). Appellant therefore had no right to file a motion for

an out-of-time appeal in the trial court; his remedy, if any, lies in

habeas corpus. See id. Accordingly, we conclude the trial court

should have dismissed, rather than denied, the motion, and we

vacate the trial court’s order and remand for entry of the appropriate

dismissal order. See id. See also Brooks v. State, 301 Ga. 748, 752 (2)

(804 SE2d 1) (2017) (“Because the trial court decided the merits of a

motion it lacked jurisdiction to decide, we vacate the trial court’s

order and remand with instructions to dismiss.”).

Judgment vacated and case remanded with direction. All the Justices concur, except Peterson, Bethel, and Ellington, JJ., who dissent.

PETERSON, Justice, dissenting.

In this case, the Court faithfully applies its holding in Cook v.

State, 313 Ga. 471 (870 SE2d 758) (2022), which also issues today.

4 Because I dissent in Cook and that decision is not yet final, I dissent

here, too.

I am authorized to state that Justice Bethel and Justice

Ellington join in this dissent.

Decided March 15, 2022.

Out-of-time appeal. Houston Superior Court. Before Judge

Lukemire.

Greg H. Bell, for appellant.

George H. Hartwig III, District Attorney, Daniel P. Bibler,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Kathleen L. McCanless,

Assistant Attorney General, for appellee.