Marquise Robbins v. State , 827 S.E.2d 907 ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 2, 2019
In the Court of Appeals of Georgia
A19A0030. ROBBINS v. THE STATE.
MCFADDEN, Presiding Judge.
This appeal challenges the denial of a defendant’s motion for an out-of-time
appeal. Because the trial judge did not abuse his discretion in denying the motion, we
affirm.
1. Facts and procedural posture.
On August 12, 2010, Marquise Robbins, with the assistance of appointed
counsel, pled guilty to attempted murder, participation in criminal street gang activity,
and three counts of voluntary manslaughter. The trial court imposed a total sentence
of 50 years, with 25 years to be served in confinement and the remainder to be served
on probation. On November 12, 2010, Robbins filed a motion to modify his sentence,
asking the court to consider a shorter term of confinement on the ground that he was
endangered while in custody. After a hearing on October 10, 2011, the trial court
denied the motion.
Over five years later, on March 15, 2017, Robbins filed a pro se motion for an
out-of-time appeal, claiming that his plea counsel had failed to inform him of his right
to appeal from the denial of his motion to modify his sentence. The trial court denied
the motion without a hearing. Robbins appeals from that order.
2. Denial of out-of-time appeal.
In his sole enumeration of error, Robbins contends that the trial court erred in
denying his motion for an out-of-time appeal without holding an evidentiary hearing.
We disagree.
[O]ut-of-time appeals are designed to address the constitutional
concerns that arise when a criminal defendant is denied his first appeal
of right because the counsel to which he was constitutionally entitled to
assist him in that appeal was professionally deficient in not advising him
to file a timely appeal and that deficiency caused prejudice.
Shuman v. State, 302 Ga. 221, 221-222 (2) (805 SE2d 824) (2012) (citation omitted).
See also Rhodes v. State, 296 Ga. 418, 420 (2) (768 SE2d 445) (2015) (out-of-time
appeal is available when a direct appeal was not taken due to ineffective assistance
of counsel). In this case, Robbins has not shown that he was denied his first appeal
of right due to the ineffectiveness of counsel to which he was entitled.
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“An indigent defendant is entitled to representation by counsel only for trial
and for the direct appeal from the judgment of conviction and sentence.” Terry v.
State, 301 Ga. 776, 778 (1) (804 SE2d 71) (2017) (citation and punctuation omitted).
Accord Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999) (indigent
defendant is entitled to appointed counsel only for trial and the first appeal as a matter
of right). After a guilty plea, “a timely motion to withdraw [the] guilty plea would . . .
trigger[ an indigent defendant’s] right to appointed counsel.” Terry, supra (citations
and emphasis omitted). An indigent defendant who timely seeks to withdraw a guilty
plea “has both the right to appeal the denial of his motion to withdraw [his] guilty
plea and the right to the effective assistance of counsel as guaranteed by the Sixth
Amendment for that appeal.” Ringold v. State, 304 Ga. 875, 878 (823 SE2d 14)
(2019) (citations and punctuation omitted). Moreover, it appears from Ringold, as
fully explained in Presiding Justice Nahmias’ concurring opinion, that a defendant
who pleads guilty has a right to file a direct appeal from the judgment of conviction
entered thereon and need not file a motion to withdraw the plea as a prerequisite to
an appeal. Ringold, supra at 883-886 (3) (concurrence) (discussing, among other
things, the unsoundness of prior case law holding that a criminal defendant has no
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unqualified right to file a direct appeal from a judgment of conviction entered on a
guilty plea).1
In the instant case, however, Robbins did not file a direct appeal from his guilty
plea conviction and he “did not file a motion to withdraw his guilty plea which . . .
would have triggered the right to appointed counsel [to assist with an appeal from the
denial thereof].” Pierce v. State, 289 Ga. 893, 894 (1) (717 SE2d 202) (2011)
(citation and punctuation omitted). Accord Terry, supra; Brooks v. State, 301 Ga. 748,
752 (3) (804 SE2d 1) (2017). Compare Ringold, supra at 2 (defendant timely moved
to withdraw his guilty plea). Rather, Robbins filed a motion to modify his sentence
which gave no indication that he wanted to withdraw his plea. On the contrary, he
expressly stated in his motion that he intended to honor the terms of his guilty plea.
Under such circumstances, Robbins was not entitled to appointed counsel to pursue
an appeal from the denial of his motion to modify his sentence. See Pierce, supra (an
indigent defendant who has filed a motion to vacate a sentence, rather than a motion
1
We recognize that Presiding Justice Nahmias’ concurring opinion indicated
that Georgia case law on out-of-time appeals had ventured off-track and that Ringold
“sounds a clear death knell” for certain sets of prior Supreme Court holdings,
although it was unnecessary to overrule any of those holdings to decide that particular
case. Ringold, supra at 882 (concurrence). We note that the instant case, which
involves an out-of-time appeal from the denial of a motion to modify a sentence, does
not fall into any of those sets of prior holdings.
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to withdraw a guilty plea, is not entitled to counsel to pursue an appeal from the
denial thereof). See also Rooney v. State, 287 Ga. 1, 7 (4) (690 SE2d 804) (2010)
(same); Jordan v. State, 242 Ga. App. 408 (4) (530 SE2d 42) (2001) (no right to
counsel to pursue a motion to correct a sentence), disapproved in part on other
grounds in Shields v. State, 276 Ga. 669, 671 (3) (581 SE2d 536) (2003).
Because Robbins was not entitled to appointed counsel to pursue an appeal
from the denial of that motion, it necessarily follows that there could be no denial of
the Sixth Amendment right to effective assistance of counsel for such an appeal. See
Gibson, supra at 861 (1), citing Wainwright v. Torna, 455 U. S. 586, 587-588 (102
SCt 1300, 71 LE2d 475) (1982), for the proposition that “a defendant can only be
deprived of his Sixth Amendment right to effective assistance of counsel where there
is a constitutional right to counsel[.]” See also Evitts v. Lucey, 469 U. S. 387, 396 (II)
(C) n. 7 (105 SCt 830, 83 LE2d 821) (1984) (“Of course, the right to effective
assistance of counsel is dependent on the right to counsel itself.”) (citation omitted).
Thus, it is clear from the record that Robbins’ motion for an out-of-time appeal, based
on an allegation of ineffective assistance of counsel, was without merit.
“The denial of a motion for an out-of-time appeal is a matter within the
discretion of the trial court, and the trial court’s decision will not be reversed absent
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abuse of such discretion. Based on the above analysis, we hold that the trial court did
not abuse its discretion in denying [Robbins’] motion for an out-of-time appeal.”
Smith v. State, 263 Ga. App. 414, 417 (1) (587 SE2d 787) (2003) (citation and
punctuation omitted). And contrary to Robbins’ enumerated error, since the record
shows that no right of appeal was frustrated by ineffective assistance of counsel, the
trial court did not err in denying the motion without a hearing. See Baker v. State, 273
Ga. 842, 843 (2) (545 SE2d 879) (2001) (no hearing necessary on motion for an out-
of-time appeal where court can determine from the record who was responsible for
failure to file timely direct appeal). Accordingly, we affirm the trial court’s denial of
the motion for an out-of-time appeal.
Judgment affirmed. Goss, J., concurs. McMillian, J., concurs in judgment
only.*
* THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF APPEALS
RULE 33.2(a).
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