Terry-Hall v. State
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Opinion
312 Ga. 250 FINAL COPY
S21A0790. TERRY-HALL v. THE STATE.
PETERSON, Justice.
Brandon Terry-Hall, who pleaded guilty to felony murder and
other offenses, appeals the denial of his motion for an out-of-time
appeal. He raises two arguments on appeal: (1) he argues that
counsel was ineffective for failing to appeal or move to withdraw his
guilty plea, and (2) he challenges the factual basis for his guilty plea
in various ways. But Terry-Hall failed to raise below the ineffective
assistance of counsel claims, and the challenge to the guilty plea
itself is barred by the denial of his motion for an out-of-time appeal.
We affirm.
On March 26, 2015, a Henry County grand jury indicted Terry-
Hall, along with three other defendants, for malice murder, five
counts of felony murder, burglary in the first degree, two counts of
armed robbery, two counts of aggravated assault, aggravated battery, two counts of false imprisonment, and possession of a
firearm during the commission of a felony. The charges stemmed
from a September 2012 burglary that resulted in the non-fatal
shooting of Ronnie Cantrell, Jr., and the fatal shooting of Ronnie
Cantrell, Sr.
On September 15, 2015, Terry-Hall entered a guilty plea to four
counts — felony murder predicated on aggravated assault, burglary
in the first degree, armed robbery, and false imprisonment. The
other counts were nolle prossed. On October 15, 2015, the trial court
imposed concurrent life sentences on the felony murder and armed
robbery counts, a consecutive twenty-year prison sentence on the
burglary count, and a consecutive ten-year prison sentence on the
false imprisonment count.
More than three years later, on February 27, 2019, Terry-Hall
filed pro se a motion for an out-of-time appeal. The motion argued
that his plea was invalid because the State failed to set forth a
sufficient factual basis for the plea on the record and “deceivingly”
told the trial court that the plea was non-negotiated. He also argued
2 that his plea was involuntarily and unintelligently made. The
motion at no point asserted that Terry-Hall had desired to file a
timely direct appeal or a timely motion to withdraw his plea, let
alone asserted a failure by his lawyer in that regard.
The State’s response relied upon one of our prior decisions to
the effect that “[i]n order to be entitled to a direct appeal from his
guilty plea . . . whether timely or otherwise, [a defendant] must show
that his claims can be addressed and resolved solely by reference to
facts contained in the record.” Turner v. State, 281 Ga. 435, 436 (2)
(637 SE2d 384) (2006).1 The State also quoted language from that
decision noting that claims of ineffective assistance of counsel could
not be developed without a post-plea hearing. See id. In reply, Terry-
Hall protested that he had not in fact raised a claim of ineffective
assistance of counsel and had not requested a hearing. Without
holding a hearing, the trial court denied the motion in a one-
sentence order, and Terry-Hall filed a timely notice of appeal.
1 We have overruled Turner on this point. See Collier v. State, 307 Ga.
363, 367-368 (1) (834 SE2d 769) (2019). 3 1. Terry-Hall argues that the trial court erred in denying
him an out-of-time appeal without a hearing, because his counsel
was ineffective in failing to file a timely notice of appeal or motion
to withdraw his plea. “We review a trial court’s denial of a motion
for an out-of-time appeal for an abuse of discretion.” Clark v. State,
310 Ga. 489, 490 (2) (852 SE2d 522) (2020) (citation and punctuation
omitted). “A criminal defendant is entitled to an out-of-time appeal
if his counsel’s constitutionally deficient performance deprived him
of an appeal of right that he otherwise would have pursued.” Collier
v. State, 307 Ga. 363, 364 (1) (834 SE2d 769) (2019). A trial court
abuses its discretion when it fails to hold an evidentiary hearing on
a defendant’s allegation in a motion for an out-of-time appeal that
he was deprived of his right to appeal due to his counsel’s ineffective
assistance. See Clark, 310 Ga. at 490 (2).
But “[i]t is well settled that errors not raised in the trial court
will not be heard on appeal.” Ringold v. State, 304 Ga. 875, 877 (823
SE2d 342) (2019) (citation and punctuation omitted), overruled on
other grounds by Collier, 307 Ga. at 366-367 (1). Here, Terry-Hall’s
4 motion for an out-of-time appeal made no claim that counsel’s
deficient performance had deprived him of an appeal of right.
Indeed, he disclaimed such an argument in responding to the State’s
response to his motion. Even considering Terry-Hall’s pro se status
and the fact that the trial court ruled on his motion for an out-of-
time appeal prior to our decision in Collier, we cannot find in the
trial court record any point at which Terry-Hall even suggested that
he was deprived of a timely appeal due to the ineffective assistance
of counsel. Compare Rutledge v. State, 309 Ga. 508, 510 (2) (847
SE2d 143) (2020) (pro se defendant’s allegation in motion 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” was sufficient to trigger trial court’s duty to
make factual inquiry) (punctuation omitted); Jones v. State, 308 Ga.
337, 338 (840 SE2d 357) (2020) (trial court abused discretion in
denying without a hearing pro se motion for an out-of-time appeal
that alleged that any rational person sentenced to life without parole
would want to appeal and that defendant was abandoned by her plea
5 counsel immediately after sentencing). Although Terry-Hall also
argues that he is entitled to an out-of-time appeal because his
counsel was ineffective in failing to file a timely motion to withdraw
his guilty plea, that argument was not raised before the trial court,
either.
To the extent that Terry-Hall suggests that the filing of a
motion for an out-of-time appeal automatically obliges a trial court
to hold an evidentiary hearing, regardless of the allegations made in
the motion, there is no authority for such a proposition.2 Thus,
Terry-Hall’s argument that he is entitled to an out-of-time appeal
because his counsel was ineffective is waived. See Ringold, 304 Ga.
at 877 (concluding that appellant’s claim that he was entitled to an
out-of-time appeal due to the trial court’s failure to advise him of his
right of appeal was waived because he failed to raise it in his motion
for an out-of-time appeal); see also Barnes v. State, 291 Ga. 831, 833
2 The cases Terry-Hall cites do not provide that a trial court is required
to hold an evidentiary hearing on a motion for an out-of-time appeal in the absence of an allegation that a timely appeal was thwarted by counsel’s ineffectiveness. See Rutledge, 309 Ga. at 509-510 (2); Burley v. State, 308 Ga. 650, 651-652 (842 SE2d 851) (2020); Jones, 308 Ga. at 337-338. 6 n.2 (732 SE2d 752) (2012) (challenges to sentencing agreement not
raised in the trial court in connection with the motion for an out-of-
time appeal are waived).
2. Terry-Hall also argues that the factual basis for his guilty
pleas as proffered by the State at his change-of-plea hearing was
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