Lucious L. Johnson v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 02, 2015
The Court of Appeals hereby passes the following order:
A15D0225. LUCIOUS L. JOHNSON v. THE STATE.
Lucious Johnson was convicted of aggravated assault, rape, and false
imprisonment, and we affirmed his convictions on appeal. Johnson v. State, 238 Ga.
App. 577 (520 SE2d 221) (1999). Johnson later filed a motion to vacate a void
sentence and an extraordinary motion for new trial. The trial court merged two of his
convictions and vacated his sentence as to one count but otherwise denied the
motions, and we again affirmed on appeal. Johnson v. State, 272 Ga. App. 294 (612
SE2d 29) (2005). Johnson then filed another motion to vacate a void sentence, along
with other pro se motions. The trial court denied the motions, and once more we
affirmed, this time in an unpublished opinion. Johnson v. State, Case No. A13A1411,
decided July 16, 2013.
Back in the trial court, Johnson filed new pro se motions, including a motion
for an out-of-time appeal and a motion for relief from convictions due to actual
innocence. The trial court denied the motions on the ground that its prior orders were
“res judicata as to these matters.” Johnson then filed this application for
discretionary review. We lack jurisdiction.
To the extent that Johnson seeks another appeal from his convictions, he is not
entitled to one. “An out-of-time appeal is a judicial creation that serves as the remedy
for a frustrated right of appeal. . . . [I]t is not a remedy available to a criminal
defendant whose conviction has been reviewed by an appellate court on direct appeal
since that defendant is not entitled to a second direct appeal from his judgment of
conviction.” Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003)
(punctuation and citation omitted). Johnson has already had multiple appeals to this
Court and may not have yet another one. Accordingly, his appeal from the denial of
his motions for out-of-time appeal must be dismissed. See Brown v. State, 296 Ga.
App. 224 (674 SE2d 91) (2009) (dismissing appeal from denial of motion for out-of-
time appeal because defendant “has already had a direct appeal, and raises no
arguments now that he could not have raised then”).1
To the extent that Johnson seeks to set aside his convictions, the Supreme
Court has made clear that “a petition to vacate or modify a judgment of conviction is
not an appropriate remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1)
(686 SE2d 786) (2009). Further, any appeal from an order denying such a motion
must be dismissed. See Harper, supra; Roberts v. State, 286 Ga. 532 (690 SE2d 150)
(2010).
For these reasons, this application is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
02/02/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
1
To the extent that Johnson’s request for an out-of-time appeal was based on
his claim that he received ineffective assistance of appellate counsel, we reiterate that
his exclusive remedy is a petition for writ of habeas corpus. See Johnson, 272 Ga.
App. at 296 (5).