Schoicket v. State

865 S.E.2d 170, 312 Ga. 825

• Court: Supreme Court of Georgia
• Decided: November 2, 2021
• Docket: S21A0840
• Status: Published

Opinion

312 Ga. 825 FINAL COPY

S21A0840. SCHOICKET v. THE STATE.

PETERSON, Justice.

Rebecca Dawn Schoicket was granted an out-of-time appeal to

appeal the judgment of conviction entered on her guilty plea. In

addition to challenging her sentence on one count, she argues that

the out-of-time appeal she was granted meant that the trial court

should have granted her motion for leave to file an otherwise

untimely motion to withdraw her guilty plea. Schoicket argues that

Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019), recognized that

it would be a “logical extension” of our case law to permit the filing

of such a motion, because we have stated that the grant of an out-of-

time appeal starts the post-conviction process “anew.” Schoicket is

correct in that appraisal of our case law, but we decline to extend it

to afford her the relief she seeks.

As the special concurrence to Collier explained, this Court

ignored contrary precedent and statutes in creating out of whole cloth the motion for out-of-time appeal in the trial court, see id. at

379 (Peterson, J., concurring specially), which is the procedural

vehicle that forms the foundation of the case law on which Schoicket

relies. And following our decision in Collier, we have retreated from

broad statements about the effect of a granted out-of-time appeal in

order to avoid dispensing unwarranted windfalls. See Kelly v. State,

311 Ga. 827, 830-831 (860 SE2d 740) (2021). A defendant is granted

an out-of-time appeal when she shows that her counsel’s ineffective

assistance frustrated her right to timely appeal by unprofessionally

failing to advise her of that right or by failing to file an appeal she

desired. Allowing such a grant to then permit the movant to file a

motion to withdraw a guilty plea would be an unwarranted windfall

with potentially profound consequences for our criminal justice

system. Accordingly, we affirm the trial court’s denial of Schoicket’s

motion for leave to pursue such relief. However, because we agree

with Schoicket that the sentencing court erred in sentencing as to

one count, we vacate that count and remand for resentencing.

The record shows the following. In October 2016, with the

2 assistance of counsel, Schoicket pleaded guilty to felony murder and

other charges in Walton County Superior Court.1 More than a year

later, in December 2017, Schoicket filed a pro se motion for an out-

of-time appeal. She subsequently amended that motion and also

filed a pro se motion to withdraw her guilty plea. After being

appointed new counsel, Schoicket moved for leave to file a motion to

withdraw her guilty plea. Following a hearing, the trial court

granted Schoicket’s motion for an out-of-time appeal, but denied the

motion for leave. Despite that ruling, Schoicket’s counsel filed a

motion to withdraw the guilty plea the day after the hearing.

Schoicket now appeals from the trial court’s denial of her motion for

leave to file a motion to withdraw her plea.2

1. Schoicket argues that the trial court erred in denying her

motion for leave to file a motion to withdraw her guilty plea because

1 Schoicket was charged with malice murder (Count 1), aggravated assault (Count 2), felony murder (Count 3), possession of a firearm during the commission of a felony (Counts 4, 5, and 6), tampering with evidence (Count 7), and possession of methamphetamine (Count 8). Schoicket pleaded guilty to Counts 3, 6, 7, and 8 and was sentenced to life plus five years in prison. 2 Schoicket filed the motion to withdraw her guilty plea and, one minute

later, filed a notice of appeal from the judgment of conviction and the order denying leave to file a motion to withdraw the guilty plea.

3 the granted out-of-time appeal permitted her to start the post-

conviction process “anew.” She relies on certain statements in our

prior decisions, including one in the special concurrence in Collier

that “a logical extension of” prior statements of this Court would be

that a granted out-of-time appeal authorizes the filing of a motion

to withdraw a guilty plea. See Collier, 307 Ga. at 380 (Peterson, J.,

concurring specially). We agree that permitting such a motion would

be a logical extension of our precedent that invented certain post-

conviction remedies. Although we should not have invented those

remedies in the first place, we decline to invent additional remedies

that might further complicate our post-conviction jurisprudence.

We begin with a little background. The traditional rule is that

motions to withdraw a guilty plea must be filed in the term of court

in which the defendant was sentenced, see Brooks v. State, 301 Ga.

748, 751 (2) (804 SE2d 1) (2017), the time period under the common

law during which trial courts could generally reconsider their

judgments, see Moon v. State, 287 Ga. 304, 305-306 (696 SE2d 55)

(2010) (Nahmias, J., concurring). This well-established rule is

4 merely the application of a bedrock common-law principle that

applies equally to other criminal motions and in civil cases. See Gray

v. State, 310 Ga. 259, 263 (3) (850 SE2d 36) (2020) (common-law rule,

which Georgia courts have long applied, provides that “in the

absence of a statute providing otherwise, the general principle

obtains that a court cannot set aside or alter its final judgment after

the expiration of the term at which it was entered, unless the

proceeding for that purpose was begun during that term” (citation,

punctuation, and emphasis omitted)); see also Smith v. State, 298

Ga. 487, 487-488 (782 SE2d 17) (2016) (rule applicable even if

motion construed as motion to withdraw guilty plea or motion for

arrest of judgment); Tremble v. Tremble, 288 Ga. 666, 668 (1) (706

SE2d 453) (2011) (applying rule to second divorce decree entered

after expiration of term of court in which first decree was entered).

This common-law rule, as applied to motions to withdraw guilty

pleas, remains in force today. See Gray, 310 Ga. at 262 (2) (common-

law rules remain in effect “except where they have changed by

express statutory enactment or by necessary implication” (citation

5 and punctuation omitted)).

When a defendant seeks to withdraw her guilty plea after the

expiration of that term of court, she must pursue such relief through

habeas corpus proceedings. See Davis v. State, 274 Ga. 865, 865 (561

SE2d 119) (2002). Applying this traditional rule, Schoicket’s motion

to withdraw her guilty plea, as a standalone motion, would be barred

as untimely because it is undisputed that she sought to file it more

than a year after the term of court in which the judgment of

conviction was entered. See OCGA § 15-6-3 (2) (B) (the terms of court

for the Superior Court of Walton County commence on the “[f]irst

and second Mondays in February, May, August, and November”).

Schoicket argues that she is permitted to file her otherwise

untimely motion because the grant of an out-of-time appeal

essentially restarted the post-conviction process. Her arguments are

rooted in statements made in Ponder v. State, 260 Ga. 840 (400 SE2d

922) (1991), and Maxwell v. State, 262 Ga. 541 (422 SE2d 543)

(1992). But we already have begun to trim back those broad

statements.

6 Ponder is the primary case for expanding the record upon the

grant of an out-of-time appeal in order to consider previously

unraised claims. There, we held that a defendant who is granted an

out-of-time appeal should be allowed to file a motion for new trial in

order to raise ineffectiveness claims against trial counsel for the first

time. See 260 Ga. at 840-841 (1). This Court explained that the grant

of an out-of-time appeal

should be seen as permission to pursue the post- conviction remedies which would be available at the same time as a direct appeal . . . and constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial.

Id. at 841 (1). We note, however, that even by its own terms, Ponder

authorized only “appropriate” post-conviction remedies.

In Maxwell, we extended Ponder to allow a defendant to pursue

a second motion for new trial with appellate counsel despite the fact

that the defendant’s first motion for new trial, filed by trial counsel,

had been denied. See Maxwell, 262 Ga. at 542-543 (3), disapproved

by Kelly, 311 Ga. at 830-831. We stated in Maxwell that the second

motion for new trial was permitted because the grant of an out-of-

7 time appeal “start[s] the post-conviction process anew.” Id. at 542-

543 (3). Allowing a second motion for new trial in Maxwell was an

“appropriate” remedy because trial counsel could not have been

expected to raise ineffectiveness claims against himself in the first

motion for new trial. See Garland v. State, 283 Ga. 201, 203 (657

SE2d 842) (2008); see also Hood v. State, 282 Ga. 462, 463 (651 SE2d

88) (2007) (“[A] lawyer may not ethically present a claim that [the

lawyer] provided a client with ineffective assistance of counsel[.]”).

We readily acknowledge that our statements in Ponder and Maxwell

would naturally lead to the conclusion that, upon the grant of an

out-of-time appeal, a defendant who pleaded guilty should be able to

file a motion to withdraw that plea, just as a defendant who went to

trial can file a motion for new trial.3

3 We also acknowledge another line of case law that has afforded similar

remedies on direct appeal. See, e.g., Davis v. State, 301 Ga. 658, 659 (802 SE2d 246) (2017) (reversing denial of timely motion to withdraw guilty plea and remanding for hearing on claim that plea counsel was ineffective); Gooden v. State, 305 Ga. 835, 838 (828 SE2d 302) (2019) (affirming denial of timely motion to withdraw guilty plea and rejecting claim for remand based on plea counsel’s alleged ineffectiveness, as issue already had been adjudicated by the trial court). But this case presents only the question of what remedy is available through the procedural vehicle of a granted motion for out-of-time

8 But in Kelly we retreated from what Ponder and Maxwell said,

holding that the grant of an out-of-time appeal does not actually

start the post-conviction process “anew”; instead, it merely

“restore[s] the defendant to the position he occupied at the time he

forfeited his right to appeal (or seek other post-conviction relief).”

Kelly, 311 Ga. at 830-831. And as Justice Warren recognized in

Kelly, and as Ponder’s core holding teaches us, remedies for

ineffective assistance of counsel should be tailored to the particular

violation. See Kelly, 311 Ga. at 833 (Warren, J., concurring specially)

(“[T]he remedy this Court provided in Maxwell was too broad

because it exceeded that which was required to remedy the

deprivation of Maxwell’s appellate rights because of an alleged

constitutional violation (i.e., ineffective assistance of counsel).”);

Ponder, 260 Ga. at 842 (2) (allowing motion for new trial to be filed

upon grant of out-of-time appeal because appellate counsel did not

have the opportunity to raise ineffectiveness claims against trial

appeal, not whether other remedies are ever available in other procedural postures.

9 counsel until after the time for an appeal had passed). Any

suggestion now that the grant of an out-of-time appeal starts the

post-conviction process completely “anew” fails to recognize our

holding in Kelly, which narrowed Ponder to avoid dispensing

unwarranted windfalls to would-be appellants.4 And the imprecise

statement in Maxwell that the grant of an out-of-time appeal

“start[s] the post-conviction process anew,” if applied beyond the

context of that case, ignores Ponder’s teaching that only

“appropriate” remedies are available upon the grant of a motion for

out-of-time appeal.

Such a windfall would arise from allowing a defendant to file

an otherwise untimely motion to withdraw a guilty plea simply

because she was granted an out-of-time appeal. As discussed above,

longstanding precedent dictates that a defendant seeking to

withdraw a guilty plea after the expiration of the term of court in

4 Justice Ellington’s dissent also points to language repeated in a number

of our decisions that the grant of an out-of-time appeal is the “functional equivalent of the entry of a judgment.” That statement originates in Fairclough v. State, 276 Ga. 602 (581 SE2d 3) (2003), and is based on an assessment of Maxwell’s overbroad “anew” language. See Fairclough, 276 Ga. at 603 (1).

10 which she was sentenced can do so only in habeas. See Davis, 274

Ga. at 865. And because of this precedent, Georgia does not

recognize untimely standalone motions to withdraw a guilty plea.

Indeed, we have explicitly rejected efforts to file motions for out-of-

time withdrawal of guilty pleas, notwithstanding that we allow

motions for out-of-time appeals. See, e.g., Sims v. State, 312 Ga. ___,

___ n.5 (862 SE2d 507) (2021) (citing Brooks, 301 Ga. at 751 (2) n.7,

and Foster v. State, 294 Ga. 400, 401 (754 SE2d 78) (2014)).5 It would

5 Justice Ellington’s dissent relies on Gude v. State, 229 Ga. 831 (194

SE2d 445) (1972), for the proposition that we have created a standalone, untimely motion to withdraw because we considered the merits of an appeal from such a motion. But Gude does not support this proposition. First, this Court in Gude merely affirmed the denial of an untimely motion to withdraw, but we did not consider whether such motions were appropriate at all, and so Gude contains no holding as to whether such motions are allowed. See Seals v. State, 311 Ga. 739, 745-746 (2) (b) (860 SE2d 419) (2021) (“Decisions of this Court . . . do not stand for points that were neither raised by the parties nor actually decided in the resulting opinion[.]” (citation and punctuation omitted)). Second, we have since clearly held that we will vacate orders that consider the merits of untimely motions because a trial court lacks jurisdiction to decide such motions. See Brooks, 301 Ga. at 752 (2). Third, even if Gude could be read as having permitted untimely motions to withdraw a guilty plea, that holding was effectively overruled by our more recent decisions holding otherwise. See White v. State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) (“When a high court finds discordant opinions among its own . . . precedents the court generally follows its decision in the most recent case, which must have tacitly overruled any truly inconsistent holding.” (citation and punctuation omitted; emphasis in original)).

11 be strange indeed to prohibit a standalone motion for out-of-time

withdrawal of a guilty plea ⸺ and direct such a movant to habeas

⸺ but then allow precisely the same remedy to another defendant

based purely on a demonstration that her separate right to appeal

had been frustrated.

For decades now, our post-conviction jurisprudence has been

described as a “tangle” of “confusing” procedural rules. See Maxwell,

262 Ga. at 543 (Fletcher, J., concurring in part). To untangle it

ourselves would be difficult and seemingly disruptive to the system

that has developed around it,6 and we are not called upon in this

6 This certainly is true as to our precedent requiring Sixth Amendment

claims of ineffective assistance of counsel to be raised on direct appeal. As we discuss briefly below, the criminal justice system has in many ways organized itself around that precedent, and overruling it would be very disruptive. It seems unlikely, however, that eliminating the motion for out-of-time appeal would pose the risk of similar disruption. Unlike the requirement to assert claims of ineffectiveness on direct appeal, motions for out-of-time appeal have had less effect on the structure and funding of the public defender system; indeed, much of the mess that we have created in this area might be mitigated by eliminating that procedural vehicle, and considerations of stare decisis might well counsel in favor of doing so. But this case does not present the question of whether our precedent creating motions for out-of-time appeal should be overruled, however, because this is not an appeal challenging the disposition of such a motion, and so we leave that question for a future case.

12 case to begin to sort out that mess. That we are not doing so today,

however, does not require us to add to that mess. And to rule in

Schoicket’s favor would make the mess far worse; all defined limits

on when a defendant could file a motion to withdraw a guilty plea

would be erased.7 A defendant who pleaded guilty long ago and

changed her mind after many years in prison might be able to

challenge the voluntariness of a plea if she can show that her right

to an appeal was frustrated by her plea counsel.8

And if that were allowed, the burden would then shift onto the

State to prove the voluntariness of a very old plea when it would

7 In Collier, the majority opinion suggested that laches or other equitable

doctrines might apply to bar claims brought so late that the delay prejudiced the State. See 307 Ga. at 373-376 (2). The four-justice special concurrence declined to join that suggestion as “tinker[ing] at the margins” with things we had made up, and acknowledged merely that “none of our cases have held that the State cannot assert a defense of prejudicial delay.” Id. at 379, 382 (Peterson, J., concurring specially). We leave anything further on this question for another day. 8 Ironically, Ponder defended its holding as bringing finality far sooner

than a habeas proceeding would, because an ineffectiveness claim could “be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas corpus court somewhere down the road.” Ponder, 260 Ga. at 842 (1) (citation and punctuation omitted). But the creation of a standalone procedural vehicle that might be filed long after a habeas petition has become untimely is a strange way to achieve finality.

13 otherwise be on the defendant. See Kennedy v. Hines, 305 Ga. 7, 9

(2) & n.2 (823 SE2d 306) (2019) (while habeas petitioner bears the

burden of proving that her guilty plea was not “voluntary, knowing,

and intelligent,” the State has the burden to prove voluntariness on

direct appeal). Given that the passage of years can result in records

lost or destroyed, and witnesses may forget, move, or die, the State

may not be able to make this showing even when a plea was

voluntary, knowing, and intelligent. And if the State fails to do so

(and some sort of laches principle is deemed not to apply), the

defendant will win an argument she would otherwise lose (and

indeed might not be able to raise due to the applicable statute of

limitations, see OCGA § 9-14-42 (c)) in habeas. Worse still, the

passage of many years could then make it virtually impossible for

the State to try the defendant before a jury. This would result in

windfall upon windfall for the defendant.

To be sure, there are competing concerns involved in post-

conviction relief procedures ⸺ addressing violations of a defendant’s

constitutional rights on the one hand, and ensuring finality on the

14 other. But the General Assembly has enacted habeas statutes

balancing these competing concerns. See OCGA § 9-14-42 (a), (c)

(habeas petition alleging that felony conviction involved

“substantial denial” of constitutional rights must be brought within

four years). We lack the authority to substitute our policy

preferences for those of the General Assembly and thereby allow a

defendant to skirt the legislatively established process. Cf. Duke v.

State, 306 Ga. 171, 186 (4) (829 SE2d 348) (2019) (overruling a

judicially created rule altering the legislature’s jurisdictional

requirements for interlocutory appeals); State v. Orr, 305 Ga. 729,

735-736 (2) (827 SE2d 892) (2019) (concluding that evidentiary

exclusion rule, created by this Court with dubious authority and

based on “the Court’s view of good policy,” was abrogated by the

legislature’s enactment of the new Evidence Code); see also Love v.

State, 309 Ga. 833, 842 (4) (848 SE2d 882) (2020) (“[Policy]

considerations are best left to be weighed by our General

Assembly.”).

The dissents argue that our prior holdings support the creation

15 of this additional remedy, but they point only to statements in those

cases that were not essential to the holdings. See, e.g., Maxwell, 262

Ga. at 542-543 (3).

It is, of course, axiomatic that a decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding — but actually exceeds the scope of the case’s factual context — is not a holding no matter how much it sounds like one.

Ga. Interlocal Risk Mgmt. Agency v. City of Sandy Springs, 337 Ga.

App. 340, 340 n.1 (788 SE2d 74) (2016) (citation and punctuation

omitted). Our recent cases have reaffirmed Ponder’s teaching that

only “appropriate” remedies should be granted upon a showing of

constitutionally ineffective counsel, yet the dissents’ approach is not

tailored to remedying the ineffective assistance that frustrated

Schoicket’s right to appeal in the first place. This is not how the

United States Supreme Court tells us to remedy Sixth Amendment

violations. See United States v. Morrison, 449 U.S. 361, 364 (101 SCt

665, 66 LE2d 564) (1981) (“Cases involving Sixth Amendment

deprivations are subject to the general rule that remedies should be

tailored to the injury suffered from the constitutional violation and

16 should not unnecessarily infringe on competing interests.”).

The dissents correctly point out that, in departing from the

holding of Neal v. State, 232 Ga. 96 (205 SE2d 284) (1974), we made

the policy decision to create a new out-of-time appeal procedural

vehicle, and that we elected in Collier to leave that vehicle in place.

But the dissents go astray in suggesting that this means we must

necessarily continue making up new policy so long as it follows

logically from the policy we’ve already created. The criminal justice

system — and especially the structure of our public defender system

— has evolved over time to comply with the requirements we have

created. The General Assembly has appropriated substantial funds

to make that system work. That we did not in Collier undo all of this

does not mean that we should keep inventing new requirements for

the legal system to comply with.

The dissents argue that we should continue trail-blazing

because our invented remedy should be made available in an even-

handed manner to trial-convicted and plea-convicted defendants

alike. But where do we stop? The dissents do not say. And our

17 inventions have never purported to be even-handed; a motion for

out-of-time appeal can be granted only if one particular kind of

ineffective assistance of counsel claim succeeds, and all sorts of other

ineffectiveness claims not raised on direct appeal can be brought

only in habeas.

For these reasons, we hold today that a granted motion for out-

of-time appeal does not confer a right to file an otherwise-untimely

motion to withdraw a guilty plea. As a result, we conclude that the

trial court did not err in denying Schoicket’s motion for leave.9 We

therefore deny her request to remand this case for consideration of

the merits of her motion to withdraw. Her remedy, if any, lies in

9 We hereby overrule decisions of the Court of Appeals that suggested ⸺

very reasonably at the time, given the statements in Ponder and Maxwell ⸺ that a defendant could file a motion to withdraw a guilty plea upon the grant of an out-of-time appeal. See Sosa v. State, 352 Ga. App. 637, 639 (2) & n.1 (835 SE2d 695) (2019) (vacating denial of motion for out-of-time appeal, remanding for proceedings consistent with Collier, and noting that if defendant “is successful on remand in obtaining an out-of-time appeal, he may be able to challenge the voluntariness of his plea in that proceeding”); Dawson v. State, 302 Ga. App. 842, 843 (691 SE2d 886) (2010) (concluding that defendant had to file second motion to withdraw guilty plea following grant of out-of-time appeal from denial of first motion to do so in order to claim that post-conviction counsel was ineffective for failing to raise trial counsel’s ineffectiveness in first motion to withdraw).

18 habeas corpus.10

2. Schoicket argues that she should not have received a 10-year

sentence, running concurrently to the life sentence on the murder

count, for tampering with evidence (Count 7), because that count

was a misdemeanor. The State concedes this error, which is properly

raised on appeal of a conviction, and our review of the record

confirms the parties’ contentions.

Count 7 charged Schoicket, as the accused, with knowingly

concealing a pistol with the “intent to obstruct the prosecution of

said accused.” Because she was found guilty of tampering with

evidence in her own case, she was guilty only of a misdemeanor and

should not have received a 10-year sentence. See OCGA § 16-10-94

(a), (c); see also Byers v. State, 311 Ga. 259, 268 (3) (857 SE2d 447)

(2021) (“A person who tampers with evidence of [her] own crime is

guilty of only a misdemeanor.”); White v. State, 287 Ga. 713, 717 (1)

10 Justice Ellington’s dissent closes with the thoughtful suggestion that

the Council of Superior Court Judges consider adopting a new Uniform Superior Court Rule requiring as part of a plea colloquy that the judge accepting the plea inform the defendant of the various requirements for plea withdrawal and appeal. We agree that such a rule merits consideration.

19 (d) (699 SE2d 291) (2010) (felony sentence is permitted only when a

person tampers with evidence involving apprehension or

prosecution of a person other than himself). Accordingly, we vacate

the sentence on Count 7 and remand for resentencing on it.

Judgment affirmed in part and vacated in part, and case remanded. All the Justices concur, except Ellington and Colvin, JJ., who dissent as to Division 1.

ELLINGTON, Justice, dissenting in part.

20 In his special concurrence in Collier v. State, Justice Peterson

posited that it “would appear to be merely a logical extension of

statements we have previously made” to hold that “a granted

motion for out-of-time appeal from a guilty plea authorizes not only

an appeal but also a motion to withdraw the guilty plea[.]”11 I agree,

although we stopped short of saying so in the majority opinion in

Collier because the issue was not then before the Court. Indeed, I

would go further and say that such a holding is the logical result,

not merely of some of our prior statements, but of our prior holdings,

which involved the application of federal and state constitutional

law and state statutory law. Now that the issue is squarely

presented for our decision, the majority arbitrarily declines to

extend to guilty-plea convictions the practice that has long been

available for trial convictions — that a granted out-of-time appeal

constitutes permission, not just to proceed directly to review by an

appellate court, but to start the post-conviction process anew in the

11 Collier v. State, 307 Ga. 363, 380 (834 SE2d 769) (2019) (Peterson, J.,

concurring specially).

21 court of conviction. In light of the underlying principles concerning

post-conviction remedies, there is no reasonable basis on which to

treat guilty-plea defendants differently from similarly situated

trial-convicted defendants. I therefore respectfully dissent as to

Division 1 of the majority opinion.

Under Georgia law, a criminal defendant has an unqualified

right to appeal directly from a judgment entered on a guilty plea.12

Compliance with the statutory deadline for filing a notice of appeal

is required to confer jurisdiction on an appellate court.13 Upon a

finding by the trial court of the county of a prisoner’s current

confinement (the habeas court) that the prisoner’s right to a direct

12 See Ringold v. State, 309 Ga. 443, 446 n.3 (847 SE2d 181) (2020);

Collier, 307 Ga. at 367-369 (1); see also Rodriquez v. United States, 395 U. S. 327 (89 SCt 1715, 23 LE2d 340) (1969). 13 See OCGA §§ 5-6-38 (a) (A notice of appeal must be filed within 30 days

after entry of the appealable decision or judgment complained of, or within 30 days after the entry of an order granting, overruling, or otherwise finally disposing of a timely-filed motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict.); 5-6-39 (Provided an application for an extension of time to file a notice of appeal is filed before the time for filing the notice of appeal expires, the court may grant a single extension of no more than 30 days.); Kelly v. State, 311 Ga. 827, 828 (860 SE2d 740) (2021); Collier, 307 Ga. at 371 (2); Gable v. State, 290 Ga. 81, 83 (2) (a) (720 SE2d 170) (2011).

22 appeal was frustrated by the ineffective assistance of counsel, the

habeas court may allow an out-of-time appeal under the Habeas

Corpus Act of 1967, OCGA § 9-14-40 et seq.14 In 1974, this Court

held that the Act

provided an adequate post-conviction remedy to a

prisoner seeking relief upon a claim arising from the

substantial denial of rights guaranteed by the Federal or

State Constitutions or by the statute laws of the state,

including, . . . the denial of the right of appeal or of the

effective assistance of counsel on appeal.

Neal v. State, 232 Ga. 96, 96 (205 SE2d 284) (1974) (citations

omitted).15

14 See Dos Santos v. State, 307 Ga. 151, 159 (5) (834 SE2d 733) (2019). 15 Originally, the Code section providing the grounds for habeas relief

provided: Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia may institute a proceeding under this section.

23 As we observed in Collier, for decades we have allowed an

alternative method to co-exist for a defendant to obtain an out-of-

time appeal from a judgment of conviction, despite the principle

that “courts have no authority to create equitable exceptions to

jurisdictional requirements imposed by statute.” Collier v. State,

307 Ga. 363, 371 (1) (834 SE2d 769) (2019), quoting Gable v. State,

290 Ga. 81, 85 (2) (b) (720 SE2d 170) (2011) (citation and

punctuation omitted). While at times questioning the propriety of

doing so, we allowed this alternative track, which proceeds in the

trial court where the defendant was tried and sentenced and which,

like the habeas track, excuses a defendant’s failure to timely file a

Ga. L. 1967, p. 835, § 3. See Ga. Code of 1933, § 50-127. In 1982, the Code section was amended, eliminating the provision for raising denials of rights under Georgia’s statutory laws. See Ga. L. 1982, p. 786, §§ 1, 3 (“Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this State may institute a proceeding under this article.”); Parker v. Abernathy, 253 Ga. 673, 673 (324 SE2d 191) (1985). The relevant Code section now provides: “Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute a proceeding under this article.” OCGA § 9-14-42 (a).

24 notice of appeal, because the required finding — that the

defendant’s right to a direct appeal was frustrated by the ineffective

assistance of counsel — is “a violation of constitutional magnitude.”

Collier, 307 Ga. at 371 (2).

We have consistently deemed the grant of an out-of-time

appeal to be “the functional equivalent of the entry of a judgment,”

even after three Justices joined in Justice Peterson’s special

concurrence in Collier, questioning whether the out-of-time appeal

process should be maintained. Pounds v. State, 309 Ga. 376, 379(2)

(b) n.5 (846 SE2d 48) (2020).16 Because the time allowed to initiate

post-conviction proceedings begins to run when a judgment of

conviction is entered, the grant of an out-of-time appeal, as the

functional equivalent of the entry of the judgment, serves to “reset”

16 See also Moore v. State, 303 Ga. 743, 745 (814 SE2d 676) (2018) (The

grant or denial of a motion for out-of-time appeal is the functional equivalent of the entry of a judgment.); Berrien v. State, 300 Ga. 489, 491 (1) n.2 (796 SE2d 718) (2017) (The grant of a motion for out-of-time appeal is the functional equivalent of the entry of a judgment.); Cody v. State, 277 Ga. 553, 553 n.1 (592 SE2d 419) (2004) (same); Fairclough v. State, 276 Ga. 602, 603 (1) (581 SE2d 3) (2003) (same).

25 the trigger date for the time allowed for post-conviction

proceedings. See id. at 379 (2) (b); Lay v. State, 305 Ga. 715, 715 n.1

(827 SE2d 671) (2019). That is why we have said that the grant of

an out-of-time appeal permits a defendant to start the post-

conviction process anew.17 From our earliest cases on this issue,

permission to file an out-of-time appeal included permission to file

a motion for a new trial.18 The defendant’s motion for a new trial

17 The majority opinion concludes that many of these “statements” of

principles did not constitute “holdings” in that they were not strictly limited to the scope of the factual context of the cases being decided and the issues that such context necessarily raised. Maj. Op. at 831-832. Much of the system that has built up around our post-conviction jurisprudence was generated by such extra-contextual statements by us, as opposed to being mandated by our technical holdings. As is demonstrated by the transcripts of the hearings in this case, trial courts and officers of the court often believe themselves to be bound by such statements of principle by this, the highest court in Georgia. It is unreasonable to expect them to heed only the most limited technical holdings in our decisions. 18 See Furgerson v. State, 234 Ga. 594, 595-597 (2) (216 SE2d 845) (1975)

(The defendant “filed his pro se motion for out of time appeal [in the trial court], counsel was appointed, the motion was granted, a motion for new trial and an amendment thereto were filed and overruled, and this appeal followed.”); see also Maxwell v. State, 262 Ga. 541, 542-543 (3) (422 SE2d 543) (1992) (A granted out-of-time appeal “permits a defendant, by the grace of the court, to start the post-conviction process anew.” (footnote omitted)), disapproved of by Kelly, 311 Ga. at 831; Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991) (“[T]he scope of the permission given when an out-of-time appeal is granted must be broader” than “only permission to file a direct appeal to an appellate court and not any form of post-conviction relief from the lower court itself. . . . [T]he grant of an out-of-time appeal constitutes permission to pursue

26 did not need to address trial counsel’s ineffective assistance in the

failure to perfect an appeal that the defendant desired to pursue,

because the trial court necessarily made that determination in

granting the request for an out-of-time appeal. A motion for a new

trial filed after a defendant was granted an out-of-time appeal could

address other aspects of the effectiveness of trial counsel. Moreover,

the defendant could raise issues as diverse as asking the trial court

to weigh the evidence as the “13th juror”;19 to consider questions of

alleged prosecutorial misconduct in discovery;20 to consider

questions of improper communications with jurors;21 etc.

Now we are tasked with deciding whether, in the case of guilty-

plea convictions, permission for the defendant “to start the post-

appropriate post-conviction remedies, including a motion for new trial.”), disapproved of by Kelly v. State, 311 Ga. at 831. 19 See OCGA §§ 5-5-20; 5-5-21; Felts v. State, 311 Ga. 547, 550 n.6 (858

SE2d 708) (2021); Holmes v. State, 306 Ga. 524, 527-528 (2) (832 SE2d 392) (2019). 20 See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215)

(1963); Mitchell v. State, 307 Ga. 855, 860-863 (2) (b) (838 SE2d 847) (2020); Hall v. State, 286 Ga. 358, 360-361 (3) (687 SE2d 819) (2010). 21 See Turner v. Louisiana, 379 U. S. 466, 473-474 (85 SCt 546, 13 LE2d

424) (1965); Radford v. State, 263 Ga. 47, 48-50 (426 SE2d 868) (1993).

27 conviction process anew” includes the right to move to withdraw the

defendant’s guilty plea. That is, is there a second track in the court

of conviction for obtaining out-of-time post-conviction relief from a

guilty plea, in addition to the habeas track available in the court of

confinement?22 The majority opinion says, “no.” Certainly issues

like the weight of the evidence, prosecutorial misconduct, and

improper communications with jurors are not small stakes in the

22 The majority opinion states that Georgia does not recognize untimely

standalone motions to withdraw a guilty plea. Maj. Op. at 829. It is true that in some cases we have held that a trial court properly dismissed (or improperly failed to dismiss) an untimely, standalone motion to withdraw a guilty plea, as least where the defendant failed to allege that counsel’s constitutionally deficient performance deprived him of his right to timely file a motion to withdraw his plea. See, e.g., Sims v. State, 312 Ga. 303, 305 (862 SE2d 507) (2021). We have, however, also considered on the merits an appeal from the denial on the merits of a pleading that the trial court construed to be an out- of-time motion to withdraw his guilty plea. See Gude v. State, 229 Ga. 831 (194 SE2d 445) (1972). In Gude, the trial court found that the plea was knowing and voluntary and made with the assistance of counsel. This Court determined that the prisoner’s motion made other arguments that “might appropriately be urged in a petition for writ of habeas corpus” and, therefore, had to be filed in the county of confinement. But we considered the plea-validity ruling on the merits, holding that “the record sustain[ed] the finding that the plea of guilty was intelligently and voluntarily made.” Id. at 832. Gude has not been overruled, nor was it even discussed in any of the cases cited by the majority opinion. The majority opinion suggests that, if Gude can be read as having permitted untimely motions to withdraw a guilty plea, that holding was effectively overruled by our more recent decisions holding otherwise. Why then has the holding in Neal not been effectively overruled by the scores of more recent decisions permitting out-of-time appeals?

28 arena of constitutional due-process and fair-trial rights. But a

motion to withdraw a guilty plea often goes, as in this case, to the

very heart of the validity of the waiver of numerous constitutional

protections through the entry of a guilty plea.23 I fail to see a

principled reason to deny guilty-plea defendants access to the

procedural tool we created. If, as the majority opinion theorizes, a

motion to withdraw a guilty plea is filed, pursuant to a granted out-

of-time appeal, many years after the plea, and lost or destroyed

records and dead or forgetful witnesses hinder the State in carrying

its burden of proving that a guilty plea was voluntary, knowing, and

intelligent, it should be short work for the State to establish the

defense of prejudicial delay. See Maj. Op. at 831; Collier, 307 Ga. at

374-375 (2).

Our judicially created out-of-time appeal procedure has

23 In Schoicket’s second amended motion for out-of-time appeal, she contends that her mental health deteriorated during her pretrial incarceration to the extent that she was not capable of making a competent, knowing, and voluntary plea and that her plea counsel’s assistance was ineffective in failing to investigate her mental health and request a postponement of the plea hearing for a competency evaluation. Schoicket listed her medications and described their effects and attached copies of jail records reflecting her diagnoses.

29 presented Georgia courts with many confounding questions over

several decades. At multiple points, we could have retracted our

recognition of the out-of-time appeal procedural vehicle and once

again adhered to our conclusion in Neal that the General Assembly

in the Habeas Corpus Act provided an adequate remedy – and the

exclusive one24 — for the right of appeal frustrated by the ineffective

assistance of counsel.25 As the majority opinion intimates with its

24 See OCGA §§ 9-14-40 (a) (“The General Assembly finds that: (1) Expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court together with other decisions of the court substantially curtailing the doctrine of waiver of constitutional rights by an accused and limiting the requirement of exhaustion of state remedies to those currently available have resulted in an increasingly large number of convictions of the courts of this state being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this state; (2) The increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights with a resultant deterioration of the federal system and federal-state relations; and (3) To alleviate such problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights be modified.”); 9-14-41 (“Notwithstanding the other provisions of this chapter [Title 9, Article 1, general provisions for habeas corpus], this article [Title 9, Article 2, procedure for person under sentence of a state court of record] provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court of record.”); Ga. L. 1967, p. 835, § 1. 25 As the majority opinion puts it, we have begun to trim back and retreat

from our broad statements in Ponder and Maxwell, cases we disapproved of in Kelly. Maj. Op. at 828-829. We expressly held in Kelly that “the effect of the grant of an out-of-time appeal is to restore the defendant to the position [she]

30 citation to Duke v. State, 306 Ga. 171, 186 (4) (829 SE2d 348) (2019),

and as Justice Colvin persuasively explicates in her dissent, we

have the power to do so. See Maj. Op. at 831.

In his special concurrence in Collier, Justice Peterson was

rightly critical of the Court’s improper, if “well-intentioned,”

incursion into policy-setting territory but warned that unweaving

our “tangled mess” of judicially created post-conviction remedies

could be “unduly disruptive to the system that has built up around”

motions for out-of-time appeals. See Collier, 307 Ga. at 379

(Peterson, J., concurring specially). And the majority opinion now

occupied at the time [she] forfeited [her] right to appeal (or seek other post- conviction relief).” 311 Ga. at 831. Our holding in Kelly creates the next point we will have to clarify. In more than three-quarters of Georgia’s superior courts, by my count, a new term of court did not commence before Schoicket forfeited her right to appeal, that is, when she failed to file a notice of appeal within 30 days after the court entered judgment on October 11, 2016. See OCGA § 15-6-3. If Schoicket had entered her guilty plea in one of those superior courts, and the granted out-of-time appeal restored her to the position she occupied at the time she forfeited her right to “seek other post-conviction relief,” per Kelly, she would have been restored to the position she occupied when she had forfeited her right to appeal but had not yet forfeited her right to file a motion to withdraw her guilty plea. Because Schoicket entered her guilty plea in the Superior Court of Walton County, however, she had already forfeited her right to file a motion to withdraw her guilty plea when she forfeited her right to appeal, see OCGA § 15-6-3 (2) (B), and settling this aspect of the tangled mess can be left for another day.

31 insists that this Court lacks the authority “to substitute our policy

preferences for those of the General Assembly and thereby allow a

defendant to skirt the legislatively established process.” Maj. Op. at

831. Yet, by allowing out-of-time appeals, we have, repeatedly,

already substituted our policy preferences for those of the General

Assembly and allowed defendants to skirt the legislatively-

established habeas process. And in Collier this Court unanimously

opted once again not to terminate the practice. In my view,

Schoicket is not asking that we “mak[e] up new policy” and “invent

[an] additional remed[y],” as the majority opinion assumes.

Schoicket is merely asking that we recognize that the parallel post-

conviction process we have already invented includes guilty-plea

convictions. Limiting the effect of a granted out-of-time appeal for

guilty-plea defendants, because of practical considerations, while

continuing to allow trial courts to permit trial-convicted defendants

to start the post-conviction process anew, because of amorphous

interests in stability and because the General Assembly has

tolerated that scheme and indeed “appropriated substantial funds

32 to make that system work,” is no less setting policy than it was to

permit the procedure in the first place. See Maj. Op. at 832. If we

must continue to wait for the General Assembly to “save us from

ourselves” (as we have been waiting for decades),26 at least we can

ensure that access to the misbegotten procedure is provided in an

even-handed manner. If we are unwilling to do so, we should do as

Justice Colvin suggests in her dissent and fix the problem outright.

The General Assembly is fully capable of resolving how to allocate

funds to make the system work. Indeed, the General Assembly

would be freed from having to appropriate, in addition to funds to

make the post-conviction system work as it intended when it

adopted the Habeas Corpus Act over 50 years ago, additional

substantial funds to make our judicially-created parallel system

work.

I question too whether we as the judiciary can do nothing to

26 I join Justice Colvin in wondering what legislative fix we are waiting

for, given the General Assembly’s provision of the exclusive — and, as we found in Neal, an adequate — vehicle for prisoners to obtain post-conviction relief from a substantial denial of their constitutional rights.

33 ameliorate this tangled mess, at least partially, short of entirely

abolishing the procedure. Georgia’s uniform court rules already

provide a useful checklist for plea colloquies that incorporate many

elements embodied in decisional law of what a defendant must

understand in order for a waiver of fair-trial rights to be knowing.27

Trial courts routinely include in such colloquies the statutory

mandate that, before a trial court accepts a guilty plea, the

defendant be informed of the four-year (for felonies) or one-year (for

misdemeanors) limits, adopted in 2004, for filing a petition for a

writ of habeas corpus.28 If the General Assembly is not inclined to

act to entirely clean up the mess we have created, at the very least

we could ameliorate some of the issues by adopting a court rule

that, before accepting a guilty plea, a trial court should inform the

27 See Uniform Superior Court Rule 33.8; Uniform State Court Rules,

preamble (Except as otherwise provided, the Uniform Rules for the Superior Courts shall be applicable in State Courts.). 28 See OCGA § 9-14-42 (c) (limitation periods), (d) (requirement that, at

the time of sentencing, the court inform the defendant of the statutory periods of limitation); Ga. L. 2004, p. 917, §1. The record in this case shows that the trial court concluded the plea hearing by stating, “I advise you that you have four years from the date that these sentences are final to file for a habeas corpus. Do you understand that?” Schoicket responded affirmatively.

34 defendant on the record that her ability to file a timely motion to

withdraw her guilty plea ends on the last day of the term of court;29

to specify that date; to inform the defendant that she has a right to

a direct appeal; and to specify the date by which a notice of appeal

must be filed. In addition, trial courts could be required to inform a

defendant that plea counsel is required to represent the defendant,

unless either another attorney is substituted in place of plea

counsel or plea counsel is allowed by court order to withdraw as

counsel, until the later of the end of the term of court or the last day

to file a notice of appeal;30 that plea counsel is required to avoid

procedural default of those remedies if the defendant desires to

pursue them;31 and that the defendant is not entitled to file

pleadings on her own behalf while she is still represented by

counsel.32 If a defendant was provided this information, it would be

29 See Lay v. State, 289 Ga. 210, 211 (710 SE2d 141) (2011). 30 See Dos Santos, 307 Ga. at 157-159 (5). 31 See McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 SE2d 141) (1974);

McAuliffe v. Rutledge, 231 Ga. 1, 2-3 (200 SE2d 100) (1973). 32 See Dos Santos, 307 Ga. at 154-155 (3).

35 less unfair to rest the responsibility for a procedural default on the

defendant’s own shoulders, and the remedies created by statute (a

motion in arrest of judgment33 and habeas34) would suffice.

I respectfully dissent as to Division 1.

33 See OCGA § 17-9-60 et seq. (A party may move in arrest of any criminal

judgment within the term at which the judgment was entered for any non- amendable defect that appears on the face of the record or pleadings.); Lay, 289 Ga. at 211 (A claim that an indictment failed to allege an essential element of the crime raised a proper ground for a motion in arrest of judgment.). 34 See OCGA § 9-14-40 et seq.

36 COLVIN, Justice, dissenting in part.

After we correctly ruled in Neal v. State, 232 Ga. 96 (205 SE2d

284) (1974) that a prisoner seeking to file an out-of-time direct

appeal must do so in a petition for a writ of habeas corpus, id. at 96,

this Court “created out of whole cloth . . . a tangled mess of post-

conviction jurisprudence” that permitted prisoners to instead

pursue post-conviction relief through a standalone motion for out-of-

time direct appeal in a court of conviction, see Collier v. State, 307

Ga. 363, 379 (834 SE2d 769) (2019) (Peterson, J., concurring

specially). Today, a majority of this Court acknowledges once again

that we should never have invented this procedural vehicle, which

has caused headache after headache as courts seek to define the

contours of a made-up post-conviction proceeding. See Maj. Op. at

825, 826. Nevertheless, the majority chooses to trim the edges of our

jurisprudence rather than to address the root cause of the problem.

In my view, it is inappropriate for us to continue waiting for

the General Assembly “to save us from ourselves.” Collier, 307 Ga.

at 379 (Peterson, J., concurring specially). It is our responsibility,

37 not the General Assembly’s, to fix our own mistakes, and this is

particularly true when, as here, the General Assembly clearly

addressed the issue more than 50 years ago by providing an

adequate and exclusive vehicle for prisoners to obtain post-

conviction relief from a substantial denial of their constitutional

rights — namely, a habeas petition. See Neal, 232 Ga. at 96 (“Under

the Habeas Corpus Act of 1967, there is provided an adequate post-

conviction remedy to a prisoner seeking relief upon a claim arising

from the substantial denial of rights guaranteed by the Federal or

State Constitutions . . . .” (citation omitted)); see also OCGA § 9-14-

41 (“[T]his article provides the exclusive procedure for seeking a writ

of habeas corpus for persons whose liberty is being restrained by

virtue of a sentence imposed against them by a state court of

record.”). I see no good reason to require the General Assembly to

pass new legislation stating that it really meant what it said when

it passed the Habeas Corpus Act of 1967, OCGA § 9-14-40 et seq.

The law, as written, governs.

In explaining the decision not to take any steps toward

38 untangling our post-conviction jurisprudence ourselves, the

majority appears to be under the impression that eliminating the

standalone out-of-time appeal procedure might be “disruptive to the

system that has developed around it,” and that this Court need not

eliminate the procedural vehicle to avoid “add[ing] to th[e] mess.”

See Maj. Op. at 830 & n.6. No doubt, reverting to the status quo as

of 1974, when we issued Neal, would disrupt the system to some

extent. Indeed, that would be the point – to follow the law set out

by the General Assembly rather than the conflicting law we

invented.

I disagree, however, that the majority has avoided adding to

the mess by trimming back some of our precedent. As Justice

Ellington notes in his partial dissent, the majority has declined to

follow the clear logical import of our precedent. As a result, the

majority has created an even more inconsistent legal landscape that

favors prisoners found guilty at trial over those who entered a guilty

plea — all in an effort to “avoid dispensing unwarranted windfalls.”

See Maj. Op. at 825, 826. Let me suggest, however, that receiving

39 an out-of-time appeal without having first prevailed in a habeas

proceeding is itself an “unwarranted windfall” — given that the

General Assembly did not provide a vehicle for prisoners to seek

such relief in the court of conviction and a majority of this Court

appears to agree that granting such relief in an “invented” post-

conviction proceeding does not comport with the law. See Maj. Op.

at 826, 832. That being the case, we should follow Neal rather than

our made-up subsequent precedent that has caused no shortage of

difficulties.

I agree with the majority that “[w]e lack the authority to

substitute our policy preferences for those of the General Assembly

and thereby allow a defendant to skirt the legislatively established

process.” Maj. Op. at 831. Indeed, that is the reason I believe we

ought to fix the problem outright and require prisoners seeking an

out-of-time appeal and associated remedies to use the habeas

procedures that the General Assembly has afforded. Barring that,

however, we should follow the logic of our prior holdings as Justice

Ellington suggests. Doing so would at least ensure that similarly

40 situated prisoners are treated equally, whether their convictions

resulted from a guilty plea or a jury verdict, and that trial courts,

litigants, and the public at large can follow our reasoning.

Given a choice between the majority’s decision to unfairly

narrow our post-Neal precedent and Justice Ellington’s consistent

application of that precedent, I would favor the latter approach. In

my view, however, neither approach fully comports with the

governing law. Accordingly, I separately dissent with respect to

Division 1.

41 Decided November 2, 2021 — Reconsideration denied November

17, 2021.

Murder. Walton Superior Court. Before Judge Ozburn, Senior

Judge.

Clifford L. Kurlander, for appellant.

Randal M. McGinley, District Attorney, W. Cliff Howard,

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.