Terry-Hall v. State

312 Ga. 250

862 S.E.2d 110

TERRY-HALL

v.The STATE.

S21A0790

Supreme Court of Georgia.

Decided: August 10, 2021

Brandon Alexander Terry-Hall, GDC# 1001651928, Dooly State Prison, 1412 Plunket Road, Unadilla, Georgia 31091, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Leslie Anna Coots, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Darius T. Pattillo, District Attorney, Sharon Lee Hopkins, A.D.A., Flint Circuit District Attorney's Office, 1 Courthouse Square, 3rd Floor, West Tower, McDonough, Georgia 30253, for Appellee.

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 20-year prison sentence on the burglary count, and a consecutive 10-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 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 S.E.2d 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. 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 S.E.2d 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 S.E.2d 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), 852 S.E.2d 522.

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 S.E.2d 342 (2019) (citation and punctuation omitted), overruled on other grounds by Collier , 307 Ga. at 366-367 (1), 834 S.E.2d 769. Here, Terry-Hall's 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 S.E.2d 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...