Opinion
A22A0020
05-17-2022
MATTHEW CERCY v. THE STATE
In July 2020, Matthew Cercy, who previously pled guilty to multiple crimes including rape and aggravated sodomy, filed a pro se motion for out-of-time appeal, asserting that his plea counsel's ineffectiveness deprived him of a direct appeal. Following a hearing, the trial court denied Cercy's motion for out-of-time appeal, and this appeal followed.
We are constrained to find that we cannot consider the merits of Cercy's appeal. In Cook v. State, ___ Ga. ___ (870 S.E.2d 758) (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 order denying Cercy's motion for out-of-time appeal is hereby VACATED, and this case is REMANDED for entry of an order dismissing the motion. If Cercy 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."). Cercy 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.