The Court heard argument this week in Collier v State, dealing with Georgia procedures for out of time appeals alleging ineffective assistance of council. The trial court in Collier's case denied his motion for an out of time appeal, in which he claimed ineffective assistance because trial counsel (1) refused to move to withdraw Collier's guilty plea and (2) failed to inform him of his right to appeal.
The Court agreed to hear the case one day after deciding Ringold v. State, 304 Ga. 875 (2019), in which Justice Nahmias wrote a concurring opinion to express that “not until now did [he] realize how badly [the Court’s] case law on out-of-time appeals has ventured.”
As Justice Nahmias explained in the Ringold concurrence, the criminal appeals process has long since been operating with three key errors:
First, (though least important), trial Courts do not have a duty to inform convicted defendants of their right to appeal.
Second, Georgia courts have failed for some time now to recognize or apply the United States Supreme Court's holding in Roe v. Flores-Ortega, 528 U.S. 470 (2000). Flores-Ortega held that criminal defendants asserting ineffective assistance of counsel based on the failure to file an appeal need not demonstrate that they likely would have prevailed on their appeal (usually required under the "prejudice" prong of ineffective-assistance claims).
Third, Georgia courts have erroneously held that a defendant may only appeal from a guilty plea if the issue can be resolved by facts appearing in the record (as opposed to the traditional view that a defendant may only prevail on their appeal if there is a basis for reversal in the limited record).
The District Attorney's office (Southwest Judicial Circuit) offers that there is a fourth problem: trial courts lack jurisdiction to even hear out of time appeals. According to the D.A., since the motion would be heard out of the term in which the final judgement is entered, the trial court lacks jurisdiction to modify the order. While Flores-Ortega undoubtedly allows criminal defendants to obtain their out of time appeal for ineffective assistance of counsel, the appropriate place for this request is in a habeas corpus proceeding. Indeed, the D.A. asserts most states handle the issue this way.
The District Attorney's office (Southwest Judicial Circuit) offers that there is a fourth problem: trial courts lack jurisdiction to even hear out of time appeals. According to the D.A., since the motion would be heard out of the term in which the final judgement is entered, the trial court lacks jurisdiction to modify the order. While Flores-Ortega undoubtedly allows criminal defendants to obtain their out of time appeal for ineffective assistance of counsel, the appropriate place for this request is in a habeas corpus proceeding. Indeed, the D.A. asserts most states handle the issue this way.
Odd as it may seem, the Public Defender Council, the District Attorney's Office, and the Attorney General's office all agree on these points. Where they disagree is on just how much of a course correction is needed.
According to Bryan Tyson of Taylor English LLP, former Director of the Georgia Public Defender Council under Governor Deal, a decision siding with the District Attorney's Office would have consequences. Specifically, habeas petitioners do not have a constitutional right to the assistance of counsel in habeas proceedings, so while (as Brandon Bullard of the GPDC conceded at oral argument) the PD's office may be able to offer assistance in these situations as a matter of policy, there are no guarantees.
According to Bryan Tyson of Taylor English LLP, former Director of the Georgia Public Defender Council under Governor Deal, a decision siding with the District Attorney's Office would have consequences. Specifically, habeas petitioners do not have a constitutional right to the assistance of counsel in habeas proceedings, so while (as Brandon Bullard of the GPDC conceded at oral argument) the PD's office may be able to offer assistance in these situations as a matter of policy, there are no guarantees.
Even assuming the assistance of counsel, the GPDC told the Court at oral argument that there would be serious practical burdens associated with re-routing these claims to habeas -- not least of which the need to "teach 400 or so public defenders across the state how to litigate in habeas." Habeas corpus proceedings take place in the judicial district housing the site of incarceration, so requiring defendants to raise their claims there means moving the proceedings some distance away from the courthouse where the records, witnesses, and sentencing judge reside.
The Attorney General's Office staked out something of a middle ground, asking the Court to continue to permit out of time appeals in the sentencing court as well as clarify the availability of the habeas process.
It seems clear the Court will correct the legal errors identified in Justice Nahmias concurrence to Ringold, but the Habeas question raises a complicated issue of stare decisis. As we noted in the Stare Decisis Module the Court has consistently pointed to the "strength of the reasoning" in the underlying precedent as the most important factor in deciding whether to overturn a decision, and the line of cases first recognizing out of time appeals in the trial court did so without discussion or analysis. On the other hand, there are tangible, identifiable consequences attached to overruling those decisions in Collier. One expects that even if the Court were to permit out of time appeals to proceed in sentencing courts out of deference to longstanding practice, some members of the Court may push for an the imposition of an equitable time limit on the right to bring such appeals, be it under a laches theory or by importing the 5 year limit on habeas petitions.
As Senior Assistant Attorney General Paula Smith put it, "I can't come up with a way for us not to have more work."
A decision is expected in the case by the early fall sitting.
Watch the oral argument here
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