Dougherty v. State ( 2022 )

SUPREME COURT OF GEORGIA
November 2, 2022
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
SUPREME COURT OF GEORGIA
Case No. S22A0643
November 2, 2022
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
ROBERT KYLE DOUGHERTY v. THE STATE.
Appellant was convicted of felony murder, conspiracy to
commit armed robbery, abandonment of a dead body, concealing the
death of another, and possession of a firearm during the commission
of a felony. On March 27, 2014, a disposition was entered that failed
to resolve Count 4 of the indictment, which charged Appellant with
armed robbery.
On March 31, 2014, Appellant filed pro se a motion for a new
trial. In September 2014, Appellant’s new post-conviction counsel
filed another motion for a new trial. After the trial court in January
2019 entered an order purporting to deny the motion, Appellant,
through counsel, filed a notice of appeal on February 22, 2019. On
July 1, 2019, this Court dismissed Appellant’s appeal, Case No.
S19A1281, as untimely. Specifically, Appellant’s notice of appeal
was not filed within 30 days after March 27, 2014, the date that “the
[trial] court entered a final disposition on [A]ppellant’s convictions
for felony murder and other offenses[,]” according to our order;
Appellant filed his pro se motion for a new trial while he was “still
represented by trial counsel,” making that motion “a legal nullity”
under White v. State, 302 Ga. 315 (806 SE2d 489) (2017); and the
motion for a new trial filed by post-conviction counsel “was untimely
and as such did not toll the time for filing an appeal.” See OCGA §
5-6-38 (a) (“A notice of appeal shall be filed within 30 days after
1
entry of the appealable decision or judgment complained of; but
when a motion for new trial, a motion in arrest of judgment, or a
motion for judgment notwithstanding the verdict has been filed, the
notice shall be filed within 30 days after the entry of the order
granting, overruling, or otherwise finally disposing of the motion.”).
Remittitur issued on August 7, 2019.
On February 20, 2020, the trial court entered a consent order
granting Appellant an out-of-time appeal, and Appellant through
counsel filed an “amended” motion for a new trial on March 2, 2020.
The trial court entered an order purporting to deny that motion on
November 18, 2020. Appellant, through counsel, filed a timely notice
of appeal. On December 14, 2021, this Court dismissed Appellant’s
second appeal, Case No. S22A0300, “because there [was] nothing in
the record showing that Count 4 of the indictment was officially
resolved, either by entry of an order of nolle prosequi or otherwise,”
such that “Appellant’s case remain[ed] pending in the trial court[,]”
under Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021). In that
posture, we held, Appellant could only “obtain review of his
convictions” by “follow[ing] the procedures for interlocutory
appeal[.]” See OCGA § 5-6-34 (b).
On January 18, 2022, the trial court entered an order of nolle
prosequi as to Count 4. Following entry of the nolle prosequi order,
Appellant filed a notice of appeal on February 1, 2022, bringing the
case again before this Court. The record shows that we have issued
two irreconcilable orders in Appellant’s case. On the one hand, we
dismissed Appellant’s first appeal in July 2019, premised in part on
final judgment having been entered on Appellant’s convictions on
March 27, 2014. On the other hand, in dismissing Appellant’s second
appeal in December 2021 for failure to follow interlocutory appeal
procedures, we explicitly held that a final judgment had not yet been
entered on his convictions. Under our December 2021 order, final
judgment was not entered on Appellant’s convictions until January
18, 2022.
2
“[A]ny ruling” by this Court “in a case shall be binding in all
subsequent proceedings in that case in the lower court and in the
Supreme Court[.]” OCGA § 9-11-60 (h) (emphasis supplied).
“Georgia’s appellate courts are required to adhere to the law of the
case rule in all matters which they consider.” Hicks v. McGee, 289
Ga. 573, 578 (2) (713 SE2d 841) (2011). See also Hollman v. State,
305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019) (“It is well-established
that the law of the case doctrine” as set out in OCGA § 9-11-60 (h)
in the Civil Practice Act “applies to holdings by appellate courts in
criminal cases.”); Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d
837) (1996) (Where this Court ruled in a direct appeal that the
appellant failed to preserve any objection to a particular jury
instruction, and the appellant subsequently initiated habeas corpus
proceedings, the habeas court was bound under the law of the case
doctrine by this Court’s ruling “regardless of whether that ruling
may [have been] erroneous.”). After remittitur issued on August 7,
2019, in Case No. S19A1281, we have ever since been required to
adhere to our ruling in the July 2019 dismissal order regarding
when the judgment on Appellant’s convictions became final. When
the case returned to us on November 3, 2021, with the docketing of
Case No. S22A0300, the law of the case doctrine prevented us from
issuing a ruling that was inconsistent with that ruling, as we did in
the December 2021 order that returned the case to the trial court.
Thus, despite our holding in Seals, the trial court’s entry of an order
of nolle prosequi as to Count 4 was not required to bring finality to
the March 2014 sentence in Appellant’s case, and the January 18,
2022 nolle prosequi order could not give Appellant a new
opportunity to litigate his motion for a new trial.
As to the proceedings on Appellant’s granted out-of-time
appeal, which resulted in the November 18, 2020 order denying his
motion for a new trial, in Cook v. State, 313 Ga. 471 (870 SE2d 758)
(2022), this Court eliminated the out-of-time-appeal procedure in
trial courts, a procedure that we had created nearly fifty years
earlier. In Cook, we held that a trial court is without jurisdiction to
decide a motion for out-of-time appeal on the merits “because there
3
was and is no legal authority[,]” that is, no constitutional or
statutory authority, “for motions for out-of-time appeal in trial
courts.” Id. at 506 (5). Cook also concluded that this holding is to be
applied to “all cases that are currently on direct review or otherwise
not yet final[,]” id., and directed that “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 505 (4).
Accordingly, the trial court’s February 20, 2020 order granting
Appellant’s motion for out-of-time appeal is vacated. Without the
granted out-of-time appeal, the trial court lacked jurisdiction to
decide Appellant’s March 2, 2020 motion for a new trial; therefore,
this appeal from the trial court’s November 18, 2020 order denying
that motion is dismissed. In addition, this case is remanded for entry
of an order vacating the November 18, 2020 order and dismissing
the March 2, 2020 motion. Finally, the trial court is directed to
vacate any other rulings on filings subsequent to the granted out-of-
time appeal, which it similarly lacked jurisdiction to decide under
Cook.
All the Justices concur.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
4
ELLINGTON, Justice, concurring.
Although I reluctantly agree with this Court’s decision, under
the law of the case doctrine, to vacate the trial court’s order granting
Robert Kyle Dougherty an out-of-time appeal, to dismiss this appeal
from the order denying Dougherty’s motion for a new trial on the
merits, and to remand the case to the trial court, I write separately
to express my discomfort with where our precedent has led us: to
denying a hearing on the merits based on the simple fact that a
criminal defense attorney required his client to sign a motion for a
new trial, rather than signing it himself without ever formally
withdrawing as counsel of record.
OCGA § 5-6-30 provides:
It is the intention of this article [i.e., the Appellate
Practice Act] to provide a procedure for taking cases to the
Supreme Court and the Court of Appeals, as authorized
in Article VI, Sections V and VI of the Constitution of this
state; to that end, this article shall be liberally construed
so as to bring about a decision on the merits of every case
appealed and to avoid dismissal of any case or refusal to
consider any points raised therein, except as may be
specifically referred to in [the APA].
5
(Emphasis added.) The APA provides more reasons an appeal may
not be dismissed than it provides grounds for dismissal. See, e.g.,
OCGA § 5-6-48. Yet eight years of post-conviction litigation in this
case have culminated in a procedural disposition, not a merits-based
decision, through no fault on Dougherty’s part.
Here are the facts in rather more detail than the above order
of the Court. After Dougherty participated with Stephen Lober in a
2012 attempted armed robbery that resulted in the fatal shooting of
Trevorius Thomas, a Monroe County grand jury indicted Dougherty
on nine counts, including armed robbery (Count 4). In 2013, Lober
entered a guilty plea. At the beginning of Dougherty’s trial in March
2014, the prosecutor told the court, “I’m not going to call Count 4.
We’re not going to proceed on the armed robbery charge.”
Dougherty’s counsel responded, “we’re okay with that,” and the
court commenced jury selection. A redacted indictment, omitting
Count 4, was submitted to the jury when deliberations began. The
jury found Dougherty guilty of felony murder, predicated on
aggravated assault with intent to rob, and five related felonies. On
6
March 27, 2014, the trial court sentenced Dougherty to an aggregate
prison term of life plus 20 years. Like the verdict form and the
redacted copy of the indictment submitted to the jury, the judgment
simply skipped from Count 3 to Count 5.
On March 31, 2014, four days after entry of judgment,
Dougherty filed a motion for a new trial. The motion was typed on
his trial attorney’s letterhead. The motion contained all of the
elements of what we consider a “placeholder” motion for a new trial
that trial lawyers typically file: the motion correctly identified the
judgment, asserted the “general grounds,” requested an opportunity
to amend the motion and to have a hearing after the trial transcript
had been prepared and counsel had had sufficient time for review
and research, and contained a certificate of service on the
prosecutor. Such placeholder motions are filed by trial counsel so
that a convicted defendant’s rights to post-conviction review are not
lost by his failure to file either a motion for a new trial or a notice of
7
appeal within 30 days after judgment 1 – including the right to assert
that his trial attorney’s performance was deficient to an extent that
deprived him of his Sixth Amendment right to counsel. A convicted
defendant’s trial attorney is not permitted to assert a claim
asserting his own ineffectiveness as counsel, but new post-conviction
counsel can later amend a trial attorney’s placeholder motion to
assert the claim. But, for reasons that were never developed in the
record, Dougherty’s trial counsel did not sign the motion that was
typed on his stationery. The motion had a signature line only for
Dougherty, following the statement, “Defendant now files this
motion over his [own] signature, representing herself [sic], until he
completes financial arrangements with appellate counsel of his
choice or moves this court to appoint counsel for him due to his
inability to hire counsel.” The trial transcript was filed less than
three months later, on May 22, 2014. In August 2014, the trial court
1A placeholder motion to withdraw a guilty plea is also often filed, but
the deadline for such a motion is the end of the term of court in which sentence
is imposed, “which may be as short as the same day or as long as seven
months.” Dos Santos v. State, 307 Ga. 151, 158 (5) (834 SE2d 733) (2019).
8
ordered that Dougherty be brought to court for a motions calendar
on September 17, 2014.
On September 23, 2014, new post-conviction counsel filed an
entry of appearance along with another placeholder motion for a new
trial on Dougherty’s behalf. The trial court held a hearing on the
motion on August 18, 2018. During that nearly four-year interval,
the trial court entered multiple “bring back” orders, including one
setting the hearing on the motion for a new trial for November 17,
2016. Post-conviction counsel requested a continuance, which the
trial court granted, and the trial judge sua sponte recused himself
from the case. Just four days before the scheduled August 18, 2018
hearing, post-conviction counsel amended the placeholder motion for
a new trial she had filed. The trial court entered an order denying
the motion on January 30, 2019. Dougherty, through counsel, filed
a timely notice of appeal on February 22, 2019. In dismissing
Dougherty’s first appeal, for the reasons set out in our order above,
we advised Dougherty that he could seek an out-of-time appeal in
the trial court, citing Rowland v. State, 264 Ga. 872, 875-876 (452
9
SE2d 756) (1995). Under Rowland and other cases, an out-of-time
appeal was then an available remedy when a convicted defendant’s
rights were lost because of trial counsel’s failure to act to preserve
them.
After we remitted the case to the trial court, the trial court
entered a consent order granting Dougherty an out-of-time appeal,
finding that Dougherty
was entitled to an appeal as of right after his conviction
and in fact exercised that right by filing a timely Motion
for New Trial and subsequent Notice of Appeal. Trial
counsel was ineffective for failing to withdraw from the
case before the filing of [Dougherty’s] pro se Motion for
New Trial, which was written on said counsel’s legal
station[e]ry. [Dougherty] relied on trial counsel’s advice
in regards to protecting his appellate rights as evidenced
by the Motion for New Trial being written on trial
counsel’s station[e]ry.
Dougherty, with assistance of counsel, then filed a motion for a new
trial, and the trial court entered an order adopting its previous
ruling denying Dougherty’s motion for a new trial on November 18,
2020. Dougherty filed a timely notice of appeal on December 16,
2020.
10
Another year passed, and then this Court dismissed
Dougherty’s second appeal, Case No. S22A0300, based on a recently
issued decision under which we ruled that Dougherty’s case
remained pending in the trial court, with no final and appealable
judgment, because Count 4 was unresolved. See Seals v. State, 311
Ga. 739 (860 SE2d 419) (2021). Upon return of the case to the trial
court, the State submitted a proposed order of nolle prosequi as to
Count 4 of the indictment, and the trial court entered the nolle
prosequi order on January 18, 2022. Dougherty then filed a timely
notice of appeal on February 1, 2022.2
2 Absent application of the law of the case doctrine, instead of dismissing
Dougherty’s appeal, we would instead be sending the case back to the trial
court again. In cases like this one, but without an earlier dismissal order tying
our hands, we have deemed motions for a new trial, although not filed within
30 days after entry of judgment on fewer than all counts of a multi-count
indictment, to be merely premature, rather than untimely, under Seals. Such
motions ripen upon entry of an order of nolle prosequi or other means of
finalizing the judgment. Before the date a judgment becomes final under Seals,
any previous ruling on a motion for a new trial is a nullity under Southall v.
State, 300 Ga. 462 (796 SE2d 261) (2017), and Pounds v. State, 309 Ga. 376(846 SE2d 48) (2020). In such cases, we remand to the trial court for a valid
ruling on the pending motion for a new trial. See, e.g., Norris v. State, Case No.
S22A0797, order vacating order denying a motion for new trial, dismissing
appeal, and remanding with direction to enter an order on the motion for new
trial, entered May 17, 2022.
11
Does Dougherty, after jumping through every hoop the law
placed before him, finally get to have the last stage of the criminal
process at which he enjoys the right to counsel – appellate review of
the judgment? No. By the time Dougherty secured an out-of-time
appeal in the trial court, as we suggested when we dismissed his
first appeal, and the trial court again ruled on the merits of his
motion for a new trial, we had issued Seals. In our December 2021
dismissal order, we declared that judgment on Dougherty’s
convictions actually had never become final, because of the vanished
Count 4, and therefore his case needed another trip to the trial court
before his convictions would be appealable. That journey, pointless
according to our current ruling, kept Dougherty’s case in the
“pipeline” long enough so that the out-of-time appeal, which
otherwise would have allowed appellate review on the merits, came
to be equally meaningless by our holding in Cook that invalidated
any proceedings flowing from a granted out-of-time appeal in a court
of conviction (as opposed to in a habeas court) “if direct review of the
case remains pending or if the case is otherwise not final.”
12
By application of the law of the case rule, we are reaching
through a holding in our July 2019 dismissal order, all the way back
eight years to Dougherty’s original 30-day window for filing a motion
for a new trial. Although his trial counsel flatly abandoned him, we
nevertheless presume that, at least until that 30-day window closed,
the legal representation continued and hobbled Dougherty’s ability
to protect his rights himself. In our July 2019 dismissal order, we
cited White v. State, 302 Ga. 315 (806 SE2d 489) (2017), for this
presumption. 3 In White, we held that the defendant’s pro se motions
3 In our July 2019 dismissal order, we also cited Tolbert v. Toole, 296 Ga.
357 (767 SE2d 24) (2014), in which we held that “[a] formal withdrawal of
counsel cannot be accomplished until after the trial court issues an order
permitting the withdrawal. Id. at 362. Until such an order properly is made
and entered, no formal withdrawal can occur and counsel remains counsel of
record.” (Citation and punctuation omitted.) Based on that rule, a habeas
petitioner could not show that his pro se notice of appeal was legally valid
because he could not show from the record that he was not represented by
counsel on the date he filed the notice of appeal. Id. But see Walker v. State,
308 Ga. 749, 753 (843 SE2d 561) (2020) (Although a convicted defendant filed
pro se a timely motion for a new trial before the filing of an order allowing his
counsel to withdraw, the pro se motion was effective and not a nullity because
he filed it after the trial court found orally, on the-record, in open court, that
the defendant had freely, intelligently, and knowingly elected to waive his
right to counsel and to represent himself. “And unlike in Tolbert, nothing in
[the] record suggest[ed] that the trial court’s oral order was not understood, by
the court or the defendant’s existing or replacement counsel, to immediately
remove [the defendant’s] counsel without the entry of a written order for the
purposes of allowing [the defendant] to proceed pro se.”).
13
to withdraw his guilty plea, timely filed before the end of the term
of court in which he was sentenced, were legal nullities, because,
at a minimum, legal representation [of a defendant who
enters a guilty plea] 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 enters a judgment of conviction
and sentence on a guilty plea, during which time the court
retains authority to change its prior orders and
judgments on motion or sua sponte for the purpose of
promoting justice.
Id. at 319. 4 The purpose of the rule that a criminal defendant cannot
simultaneously exercise his constitutional right to represent himself
and his constitutional right to the assistance of counsel is to prevent
4 The reference to USCR 4.3 (1) - (3) is to the uniform superior court rule
providing the procedures to be followed for “[a]n attorney appearing of record
in any matter pending in any superior court, who wishes to withdraw as
counsel for any party” to request an order permitting such withdrawal. When
a client wishes to substitute counsel, an order allowing the former attorney to
withdraw is not required; the substitution can be accomplished by filing a
notice of substitution of counsel in the proper form. Id. See also USCR 30.2
(“Upon arraignment, the attorney, if any, who announces for or on behalf of an
accused, or who is entered as counsel of record, shall represent the accused in
that case throughout the trial, unless other counsel and the defendant notify
the judge prior to trial that such other counsel represents the accused and is
ready to proceed, or counsel is otherwise relieved by the judge.”).
14
the disruption of dueling defenses. 5 Nothing like that happened
here. In effect, at least since our decision in White, we are pitting
these important rights against each other, to the detriment of both.
5 See Brooks v. State, 265 Ga. 548, 551 (8) (458 SE2d 349) (1995) (A brief
filed by an appellant pro se, seeking to assert an additional claim of error not
asserted in the brief filed by his attorney, was not entitled to consideration
because the appellant was represented by counsel in the pending appeal and
could not also represent himself.). In Cargill v. State, 255 Ga. 616 (340 SE2d
891) (1986), overruled on other grounds by Manzano v. State, 282 Ga. 557 (651
SE2d 661) (2007), we explained:
A criminal defendant has a constitutional right of self-
representation which derives from the Sixth Amendment. Faretta
v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975).
Under the Sixth Amendment, it has been held that the assertion
of the right to be represented by counsel constitutes a waiver of the
Sixth Amendment right of self-representation. Thus, the Sixth
Amendment right does not afford the defendant the hybrid right
to simultaneously represent himself and be represented by
counsel.
Art. I, Sec. I, Par. IX of the Constitution of Georgia, 1976
provided that “no person could be deprived of the right to defend
himself, in person, by attorney, or both.” However, Art. I, Sec. I,
Par. IX, Constitution of Georgia, 1976, has been superseded by Art.
I, Sec. I, Par. XII, Constitution of Georgia, 1983, and a person no
longer has the right to represent himself and also be represented
by an attorney, i.e., the right to act as co-counsel.
Cargill, 255 Ga. at 622-623 (citations and punctuation omitted). See Ga.
Con. of 1983, Art. I, Sec. I, Par. XII (“Every person charged with an offense
against the laws of this state shall have the privilege and benefit of
counsel;[.]”); Smith v. State, 267 Ga. 372, 377 (477 SE2d 827) (1996) (“A party
does not have the hybrid right, under either the State or Federal Constitution,
to simultaneously represent himself and be represented by counsel.”); see
generally Joseph A. Colquitt, “Hybrid Representation: Standing the Two-Sided
Coin on Its Edge,” 38 Wake Forest L. Rev. 55 (2003).
15
The result of the unrebuttable presumption of continued
representation is that the right to counsel itself locks the doors of
the courthouse against a convicted defendant, abandoned by his
trial counsel, until the clock runs out on his rights. 6 There may be
the rare defendant who, in a few short weeks, potentially while
transitioning from jail into the state penitentiary system and
6 In White, we mused that “[t]here may be some period of time after which
it no longer would be reasonable to treat a convicted defendant who has not
filed a timely appeal or motion extending the time to appeal, or a timely motion
to withdraw his guilty plea, as still represented by his trial or plea counsel[,]”
but continued: “[w]e need not decide today exactly what that period is, because
Appellant filed his pro se motions seeking to withdraw his guilty pleas well
before the end of the term in which the judgments of conviction and sentence
on his guilty pleas were entered.” 302 Ga. at 319 (2). In other words, we do not
know how long the legal representation is presumed to continue, but we are
certain it is long enough to outlast the statutory time limits for initiating post-
conviction proceedings. I note that in deciding White in 2017 we expressly
invoked the availability of the out-of-time appeal remedy in trial courts then
available for defendant’s whose rights were lost due to the ineffective
assistance of counsel. A few months after we dismissed Dougherty’s first
appeal, we decided Dos Santos and doubled down on our holding in White,
chiding that
Georgia lawyers cannot simply abandon their criminal
defendant clients immediately after the defendants enter guilty
pleas and are sentenced. Defense counsel are obligated to continue
to represent their clients at least until the time for these post-
conviction remedies expires (and if such a remedy is timely
pursued, until it is resolved).
307 Ga. at 157 (5). Again, we referred abandoned defendants to the
remedy of seeking an out-of-time appeal in the trial court or in habeas corpus
proceedings. Id. at 159 (5).
16
through the diagnostic and classification process, manages either to
obtain new counsel or to have his right to self-representation
formally restored to him under Faretta v. California, 422 U. S. 806,
818-821 (III) (A) (95 SCt 2525, 45 LE2d 562) (1975), so that his pro
se filings will not be nullities. See Martin v. State, 306 Ga. 538, 539
n.1 (832 SE2d 402) (2019). Furthermore, many convicted
defendants, robbed of post-conviction review by trial counsels’
failures, can at least seek the remedy of an out-of-time appeal or
other relief in habeas proceedings, albeit without any right to
appointed counsel in such civil proceedings, 7 if they can file a
petition for a writ of habeas corpus in time. 8 Dougherty, however,
7 See Crosson v. Conway, 291 Ga. 220, 221 (1) (728 SE2d 617) (2012);
Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999).
8 It is troubling that the Court’s standard advisory in dismissal orders
(in the post-Rowland era, until our 2022 decision in Cook) – an advisory that
was included in our July 2019 dismissal order in this case – did not advise
appellants that they could seek an out-of-time appeal in the jurisdiction of
confinement in habeas corpus proceedings. We typically only advised them
that they could seek an out-of-time appeal in the trial court under Rowland.
As we know too well, and have documented in a great many first footnotes in
murder cases, it has not been uncommon for out-of-time appeal proceedings in
trial courts to take years. For some who took us at our word and filed motions
for out-of-time appeals in their trial courts under Rowland, rather than
heading directly to habeas proceedings, and whose cases unfortunately were
not final when we issued Cook, the time wasted in seeking an out-of-time
17
has already lost even that dubious opportunity: his judgment
became final in April 2014, far longer ago than the four years
allowed under OCGA § 9-14-42 to initiate habeas proceedings.
Dougherty will never have an appellate decision on the merits
of his motion for a new trial or other matters he could have raised in
a direct appeal, solely because his trial attorney refused to sign that
first motion for a new trial, in violation of his duties as a member of
the bar and an officer of the court. Decisions of this Court have
dictated this outcome.9 How far we have strayed from the intent of
OCGA § 5-6-30.
appeal in the trial court potentially consumed the time allowed for pursuing
an out-of-time appeal through habeas proceedings.
9 Given our holdings in White and Dos Santos, this is no longer a problem
that can be addressed at the trial court level. See Shank v. State, 290 Ga. 844,
849 (5) (c) (725 SE2d 246) (2012) (admonishing “that it is the duty of all those
involved in the criminal justice system, including trial courts and prosecutors
as well as defense counsel and defendants, to ensure that the appropriate post-
conviction motions are filed, litigated, and decided without unnecessary
delay”); Owens v. State, 303 Ga. 254, 260 (4) (811 SE2d 420) (2018) (noting
that, despite our admonition in Shank, “it is clear that there remain far too
many participants in our criminal justice system who are not paying sufficient
attention” to the problem of post-conviction, pre-appeal delays and directing
the Counsel of Superior Court Judges within six months to “submit to this
Court for approval a proposed Uniform Rule of Superior Court designed to
address this problem”); USCR 41.1, effective January 1, 2019 (“Counsel are
reminded of their general ethical obligation to make reasonable efforts to
18
I am authorized to state that Justice LaGrua joins in this
concurrence.
expedite litigation consistent with the interests of their clients. The motion for
new trial shall be heard and decided as promptly as possible. . . . A ruling on
the motion shall be rendered within the time period required by law upon the
record on the motion being complete and the transcript and post-hearing
motions or other matters being submitted.”).
19