Opinion
A19A1110
10-28-2019
LANE v. The STATE.
Tyrus Lane, for Appellant. Sherry Boston, Decatur, GA, Destiny Harris Bryant, for Appelllee.
Tyrus Lane, for Appellant.
Sherry Boston, Decatur, GA, Destiny Harris Bryant, for Appelllee.
Doyle, Presiding Judge.
Tyrus Lane appeals pro se from a superior court order denying his motion for leave to file an out-of-time appeal. For the following reasons, we vacate and remand the case to the trial court.
The record shows that on April 27, 2012, Lane entered a non-negotiated guilty plea to multiple offenses in four separate indictments in DeKalb County Superior Court: robbery and two counts of battery in Case No. 09CR4122; theft by receiving stolen property in Case No. 09CR8519; two counts of aggravated assault, robbery, and false imprisonment in Case No. 10CR1206; and three counts of armed robbery in Case No. 11CR2297. Lane was sentenced on each individual case, for a total sentence of 20 years to serve 15 years in custody. On December 4, 2017, Lane filed a motion for an out-of-time appeal in each of the four cases, arguing, among other things, that his right to appeal was frustrated by plea counsel. The trial court denied the motions on August 24, 2018, and this appeal followed.
On appeal, Lane maintains that immediately after entering his plea, he "attempted to have trial counsel withdraw the plea." He states that he sent family members to counsel’s office to make such a request, but counsel responded that he needed to "hear that from [Lane]." According to Lane, he was not able to contact counsel before the expiration of the term of court shortly thereafter, and counsel made no attempt to contact him or to file a motion to withdraw his plea.
On appeal, Lane contends that plea counsel was ineffective: (1) by failing to adequately investigate and prepare his case; (2) by failing to inform him of his rights under Boykin v. Alabama ; (3) by misinforming him that he faced four possible life sentences in Case No. 11CR2297; and (4) by failing to file a motion to withdraw his plea.
395 U. S. 238, 89 S.Ct. 1709, 23 L.E.2d 274 (1969).
In the recent case of Collier v. State , the Supreme Court of Georgia overruled decades of prior precedent, holding "that a defendant has an unqualified right to appeal directly from a judgment entered on a guilty plea." "[W]hen counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal." With regard to such a claim, Collier holds that
––– Ga. ––––, –––– (1), 834 S.E.2d 769, 2019 WL 5301808 (Case No. S19A0658, decided Oct. 21, 2019), citing Garza v. Idaho , ––– U.S. ––––, 139 S.Ct. 738, 203 L.E.2d 77 (2019) ; Roe v. Flores-Ortega , 528 U. S. 470, 120 S.Ct. 1029, 145 L.E.2d 985 (2000) ; and Ringold v. State , 304 Ga. 875, 823 S.E.2d 342 (2019).
Santos v. State , ––– Ga. ––––, –––– (5), 834 S.E.2d 733, 2019 WL 5301702 (Case No. S19A1352, decided Oct. 21, 2019).
Collier , ––– Ga. at –––– (1), 834 S.E.2d 769, quoting Garza , ––– U. S. at –––– (III), 139 S.Ct. 738.
[b]ecause the trial court denied [the defendant’s] motion for an out-of-time appeal without holding an evidentiary hearing, we cannot determine from the appellate record whether [the defendant’s] failure to timely pursue an appeal was actually the result of his counsel’s deficient performance. Moreover, we recognize that, given the clear, though incorrect, mandate of the case law overruled by this opinion, [the defendant] has not had a full and fair opportunity to pursue his motion for an out-of-time appeal before the trial court, the State has not had a full and fair opportunity to raise defenses, and the trial court has not had the benefit of this opinion to guide its consideration of the parties’ evidence and argument.
Collier , ––– Ga. at –––– (3),834 S.E.2d769.
Consistent with that holding, we therefore "vacate the order denying [Lane’s] motion for an out-of-time appeal, and we remand the case to the trial court for proceedings consistent with [ Collier ]."
Id.
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Judgment vacated and remanded with direction.
Coomer and Markle, JJ., concur.