Paul K. Murray v. State ( 2021 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 4, 2021
In the Court of Appeals of Georgia
A20A1692. MURRAY v. THE STATE. DO-059 C
DOYLE, Presiding Judge.
In 2006, Paul K. Murray pleaded guilty to three counts of child molestation,
and he was sentenced to 20 years on each count to be served concurrently. On June
21, 2019, Murray moved for an out-of-time appeal, alleging in part that trial counsel
was ineffective for failing to advise him of his right to a direct appeal.1 The trial court
1
Murray initially sought discretionary review of the trial court’s August 2019
dismissal of his motion for an out-of-time appeal. Although Murray has filed five
prior appeals, all of them were dismissed. See Case Nos. A11A0456 (Nov. 18, 2010),
A14A0568 (Feb. 17, 2014), A15D0029 (Sept. 22, 2014), A17A0394 (Oct. 13, 2016),
and A17D0492 (June 21, 2017). Because Murray’s convictions have not been the
subject of a direct appeal, this Court granted his application for discretionary appeal
pursuant to OCGA § 5-6-35 (j) and directed him to file his notice of appeal within ten
days; Murray did so.
dismissed the motion on August 30, 2019, without holding a hearing.2 Murray
appeals, pro se, and for the reasons that follow, we vacate the dismissal and remand
the case for proceedings consistent with this opinion.
“A criminal defendant is entitled to an out-of-time appeal if his counsel’s
constitutionally deficient performance deprived him of an appeal of right that he
otherwise would have pursued.”3
If the constitutional violation alleged by the defendant is ineffective
assistance of counsel in providing advice about or acting upon an appeal
of right [such as an appeal from the judgment of conviction entered on
a guilty plea], that violation is reviewed under the familiar standard of
Strickland v. Washington.[4] To meet his burden of proving that
counsel’s ineffectiveness deprived him of his right to an appeal, the
criminal defendant must show (1) that counsel’s representation fell
below an objective standard of reasonableness, and (2) that counsel’s
deficient performance prejudiced the defendant.5
2
In the dismissal order, the trial court noted that “[t]he issues asserted in the
current motion relate to ineffective assistance of counsel and are not matters which
can be resolved solely by the facts in the record.”
3
Collier v. State, 307 Ga. 363, 364 (1) (834 SE2d 769) (2019).
4
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
5
(Punctuation omitted.) Collier, 307 Ga. at 364-365 (1).
2
However, with regard to the deficient performance prong of the
Strickland test, “we cannot determine whether [Murray’s] counsel
performed deficiently in failing to file a notice of appeal because the
trial court failed to hold an evidentiary hearing on the issue.”
Accordingly, we must vacate the trial court’s order denying [Murray’s]
motion for an out-of-time appeal and remand this case to the trial court
for a determination of whether counsel performed deficiently in failing
to inform [Murray] of his right to a direct appeal from his guilty plea.”6
“We therefore vacate the trial court’s order denying Boone’s motion for an
out-of-time appeal and remand this case to the trial court for proceedings consistent
with this opinion.”7
6
Boone. v. State, ___ Ga. ___ (Case No. S21A0171, decided Dec. 21, 2010),
quoting Blackwell v. State, 306 Ga. 577, 578 (832 SE2d 352) (2010), and citing
Collier, 307 Ga. at 376 (3). We note that a defendant alleging an ineffective
assistance of counsel claim has “to demonstrate not that he would have prevailed in
a timely appeal, but only that ‘there is a reasonable probability that, but for counsel’s
deficient failure to consult with him about an appeal, he would have timely
appealed.’” Blackwell, 306 Ga. at 578, quoting Ringold v. State, 304 Ga. 875, 881
(823 SE2d 342) (2019). See also Roe v. Flores-Ortega, 528 U. S. 470 (120 SCt 1029,
145 LE2d 985) (2000).
7
Boone, __ Ga. at ___. In its brief, the State recognizes the holding in Collier,
but argues that because Murray previously filed and then withdrew two habeas corpus
actions, he waived his right to an out-of-time appeal. But the trial court dismissed
Murray’s out-of-time appeal without conducting a hearing, and it did not address the
waiver issue in the dismissal order. Accordingly, this issue “[was] not . . . ruled on by
the trial court, and we do not consider [it] on appeal.” Cole v. State, __ Ga. __ n. 2
(Case No. S20A1377, decided Dec. 7, 2020), citing Kennebrew v. State, 304 Ga. 406,
3
Judgment vacated and remanded. McFadden, C. J., and Hodges, J., concur.
408 n. 2 (819 SE2d 37) (2018).
4