Opinion
A22A0756
05-12-2022
CORNELIUS v. THE STATE.
The Court of Appeals hereby passes the following order:
On January 31, 2019, Robert Cornelius was convicted of two counts of aggravated sexual battery, two counts of child molestation, and one count of cruelty to children in the first degree. The trial court denied his motion for new trial on November 4, 2020. Although Cornelius filed a notice of appeal, it was untimely, and we dismissed his appeal. On remand, Cornelius moved for an out-of-time appeal, asserting that his right to an appeal had been frustrated by defense counsel's failure to file a timely notice of appeal. The trial court granted the motion on December 6, 2021, and this appeal followed.
We are constrained to find that we cannot consider the merits of Cornelius's appeal. In Cook v. State, ___ Ga. ___ (Case No. S21A1270, decided March 15, 2022), the Supreme Court of Georgia eliminated the judicially created out-of-time appeal procedure, concluding that a trial court is "without jurisdiction to decide [a] motion for out-of-time appeal" on the merits because "there was and is no legal authority for motions for out-of-time appeal in trial courts." Id. at ___ (5). This holding applies to "all cases that are currently on direct review or otherwise not yet final." Id. Moreover, "pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final." Id. at ___ (4).
As required by Cook, therefore, the trial court's December 6, 2021 order granting Cornelius's motion for out-of-time appeal is hereby VACATED, and this case is REMANDED for entry of an order dismissing the motion. If Cornelius believes that he was unconstitutionally deprived of his right to appeal, he may be able to petition for a writ of habeas corpus to pursue relief for that claim, along with any other claims alleging deprivation of his constitutional rights in the proceedings that resulted in his conviction. See OCGA § 9-14-41 et seq. Cook, supra at ___ (5) ("Cook's remedy, if any, lies in habeas corpus."). Cornelius should be aware of the possible application of the restrictions that apply to such habeas corpus filings, such as the time deadlines provided by OCGA § 9-14-42 (c) and the limitation on successive petitions provided by OCGA § 9-14-51.