Rutledge v. State

313 Ga. 460

870 S.E.2d 720

RUTLEDGE

v.The STATE.

S21A1036

Supreme Court of Georgia.

Decided: March 15, 2022

Greg Howard Bell, Greg Howard Bell, Attorney at Law, 233 Carl Vinson Parkway, Warner Robins, Georgia 31088, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Kathleen Leona McCanless, Department of Law, 40 Capital Square SW, Atlanta, Georgia 30334, George Herbert Hartwig, Houston County District Attorney's Office, 201 North Perry Parkway, Perry, Georgia 31069, for Appellee.

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 connection. 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 S.E.2d 769 (2019), Appellant was entitled to an evidentiary hearing on his motion. See Rutledge v. State , 309 Ga. 508, 510 (2), 847 S.E.2d 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

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 v. State , 307 Ga. 363, 371 (2), 834 S.E.2d 769 (2019) ("[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 , ––– Ga. at –––– (5), 870 S.E.2d 758 (Case No., decided March 15, 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 S.E.2d 807 (1975) ] and Furgerson [v. State , 234 Ga. 594, 595, 216 S.E.2d 845 (1975) ], approved in Rowland [v. State , 264 Ga. 872, 874-875, 452 S.E.2d 756 (1995) ], and followed in other cases, is not a legally cognizable vehicle for a convicted defendant to seek relief from 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 ––––, 870 S.E.2d 758 (slip op. at 82). 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. at ––––, 870 S.E.2d 758 (slip op. at 83). 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...