Sims v. State ( 2021 )

In the Supreme Court of Georgia
Decided: August 24, 2021
S21A0587. SIMS v. THE STATE.
COLVIN, Justice.
Stacey Sims appeals from the dismissal of his out-of-time
motion to withdraw his guilty plea. For the reasons that follow, we
affirm.
In 2006, Sims was indicted by a Tift County grand jury on a 36-
count indictment that included numerous charges of malice murder,
felony murder, aggravated assault, armed robbery, burglary, and
possession of a firearm during the commission of a crime. 1 Pursuant
to a plea agreement, on August 12, 2010, Sims, who was represented
by counsel, pleaded guilty to six counts of malice murder, four counts
1 The crimes occurred in October 2005 when Sims and his two co-
defendants broke into a number of mobile homes and robbed, assaulted, and
murdered a group of Hispanic immigrants. The lengthy indictment also
included 20 counts of statutory aggravating circumstances supporting the
State’s notice of intent to seek the death penalty.
of aggravated assault, four counts of armed robbery, and three
counts of burglary, in exchange for the State’s withdrawing its notice
of intent to seek the death penalty. After a lengthy sentencing
hearing on October 7, 2010, the trial court imposed six concurrent
life sentences for the murder charges plus 200 years for the
aggravated assaults, armed robberies, and burglaries. Sims did not
bring a timely appeal from the judgment of conviction entered upon
his guilty plea.2
2 On November 26, 2010, Sims filed a pro se motion to withdraw his
guilty plea alleging that the trial court failed to advise him of his constitutional
rights pursuant to Boykin v. Alabama, 395 U.S. 328 (89 SCt 1709, 23 LE2d
274) (1969), and that he received ineffective assistance of counsel because
counsel “failed to contest the unconstitutional arrest/invalid-insufficient arrest
warrants to all charges” to which he pleaded guilty. Sims also filed a generic
pro se motion for appointment of counsel. There is nothing in the record
indicating that plea counsel had withdrawn from representation at the time
these motions were filed, and the term of court had not yet expired. See OCGA
§ 15-6-3 (39) (B) (Tift County’s two terms of court begin on the second Monday
in March and the second Monday in September). Consequently, the pro se
filings, for which there are no rulings in the record, are legal nullities because
Sims was still represented by counsel when he filed them. See White v. State,
302 Ga. 315, 319 (2) (806 SE2d 489) (2017) (“[A]t a minimum, legal
representation continues — unless interrupted by entry of an order allowing
counsel to withdraw or compliance with the requirements for substitution of
counsel, see USCR 4.3 (1)-(3) — through the end of the term at which a trial
court entered a judgment of conviction and sentence on a guilty plea.”).
2
In May 2017, almost seven years later, Sims filed a pro se
motion3 for an out-of-time appeal alleging that plea counsel was
ineffective for failing to discuss and investigate whether Sims’
custodial statement was voluntarily made and that his plea was not
freely and voluntarily given. Sims did not allege, however, that he
was denied the effective assistance of counsel in connection with his
failure to bring a timely appeal or a timely motion to withdraw his
guilty plea. 4
Approximately three years later, in February 2020, Sims filed
an “out-of-time motion to withdraw guilty plea.” Once again, Sims
did not allege that he was denied the effective assistance of counsel
in connection with his failure to bring a timely appeal or a timely
motion to withdraw his guilty plea. Instead, he generally alleged
“that he has been denied the opportunity to withdraw his guilty
3 There is nothing in the record indicating that plea counsel had
withdrawn from representation. However, based on the timing of the filings,
we assume that Sims was unrepresented. See Ricks v. State, 307 Ga. 168, 169-
170 (835 SE2d 179) (2019) (noting that where filings were entered after the
term of court in which a defendant was convicted and sentenced had ended, we
do not presume the defendant was represented).
4 There is no ruling on this motion in the record. Accordingly, it is not
before this Court for review.
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plea” and requested that the trial court “embrace the mandate of
Collier v. State[, 307 Ga. 363 (834 SE2d 769) (2019)]” and hold a
hearing on his motion. The trial court dismissed Sims’ February
2020 motion for lack of jurisdiction, finding that the motion was filed
outside the term of court in which Sims’ guilty plea was entered.
Sims appeals the trial court’s dismissal order, alleging, for the
first time, that plea counsel’s ineffectiveness and post-plea
abandonment resulted in his failure to timely file a motion to
withdraw his guilty plea. Sims further claims that, under Collier,
he is entitled to an evidentiary hearing. We see no error in the trial
court’s dismissal order.
As this Court explained in Collier,
before being entitled to an out-of-time appeal, a defendant
must allege and prove an excuse of constitutional
magnitude for failing to file a timely direct appeal, which
usually is done by showing that the delay was caused by
his trial counsel’s ineffective assistance in providing
advice about or acting upon an appeal.
307 Ga. at 364 (citing Bailey v. State, 306 Ga. 364, 364-365 (828
SE2d 300) (2019)). Here, however, the issue before this Court is the
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trial court’s ruling on Sims’ “out-of-time” motion to withdraw guilty
plea, not a motion for an out-of-time appeal.5 In addition, until filing
this appeal, Sims has never alleged that counsel’s ineffectiveness
deprived him of the right to an appeal or to timely file a motion to
withdraw his guilty plea. Consequently, this Court’s mandate in
Collier does not apply and the trial court was not required to hold a
hearing. See Terry-Hall v. State, No. S21A0790, 2021 WL 3494692(1) (Ga. Aug. 10, 2021) (explaining that there is no authority
supporting the proposition “that the filing of a motion for an out-of-
time appeal obliges a trial court to hold an evidentiary hearing,
regardless of the allegations made in the motion”). Instead, because
Sims failed to allege in the trial court that guilty plea counsel’s
ineffectiveness deprived him of the right to timely withdraw his
guilty plea, his claims are not preserved for appellate review. See
id. (noting that “[i]t is well settled that errors not raised in the trial
5 The only procedural vehicle at issue in Collier was a motion for out-of-
time appeal. An out-of-time motion to withdraw a guilty plea like the one at
issue here, however, is not a recognized procedural vehicle. See Brooks v.
State, 301 Ga. 748, 751 n.7 (804 SE2d 1) (2017); Foster v. State, 294 Ga. 400,
401 (754 SE2d 78) (2014).
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court will not be heard on appeal” (citation omitted.)).
Turning to the trial court’s order, it is undisputed that Sims’
February 2020 motion to withdraw his guilty plea was not timely
filed. Sims was sentenced in 2010 but did not file the instant motion
until 2020. See Brooks v. State, 301 Ga. 748, 751 (2) (804 SE2d 1)
(2017) (“A motion to withdraw a guilty plea must be filed within the
same term of court as the sentence entered on the guilty plea.”);
Rubiani v. State, 279 Ga. 299, 299 (612 SE2d 798) (2005) (“It is well
settled that when the term of court has expired in which a defendant
was sentenced pursuant to a guilty plea, the trial court lacks
jurisdiction to allow the withdrawal of the plea.”). See also OCGA §
15-6-3 (39) (B) (noting that Tift County’s two terms of court begin on
the second Monday in March and the second Monday in September).
Based on the untimely filing of Sims’ motion to withdraw guilty plea,
and his failure to allege that counsel’s constitutionally deficient
performance deprived him of his right to timely file a motion to
withdraw his plea, the trial court did not err in dismissing Sims’
February 2020 motion to withdraw his guilty plea for lack of
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jurisdiction.
Judgment affirmed. All the Justices concur.
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