Johnson v. State ( 2023 )

SUPREME COURT OF GEORGIA
March 15, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It appearing that the attached opinion decides a second-term
appeal, which must be concluded by the end of the December Term,
it is ordered that a motion for reconsideration, if any, must be
received in the Supreme Court E-Filing/Docket (SCED) System by
2:00 p.m. on Wednesday, March 22, 2023.
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.
In the Supreme Court of Georgia
Decided: March 15, 2023
S22A0964. JOHNSON v. THE STATE.
PINSON, Justice.
Over the past two decades, this Court has applied an absolute
rule that anything filed by a criminal defendant on his or her own
while still represented by counsel is a “legal nullity.” In this case, we
asked the parties and amici whether that rule is correct. In other
words, is a pro se filing made by a defendant who is actually or
presumptively represented by counsel always a nullity?
For the reasons set out below, we now answer that question in
the negative. Although a defendant does not have a constitutional
or statutory right to represent himself while he is also represented
by counsel, nothing in our Constitution or Code prohibits such
“hybrid representation,” either. And courts otherwise have broad
discretion to control their processes and the conduct of those
appearing before them. In keeping with these points, a few of our
decisions have correctly recognized that courts retain the discretion
to allow hybrid representation.
Our decisions adopting and applying the contrary rule are
virtually unreasoned. At most, these decisions point out that a
defendant does not have a right to hybrid representation—but of
course, not having a right to do something does not mean one is
prohibited from doing it. And our decisions offer nothing further in
support of an absolute rule against recognizing a pro se filing by a
counseled defendant. Put simply, those decisions were just wrong.
And this error is not harmless. After a judgment of conviction,
defendants have a short window within which they can preserve
their right of appeal, but absent an order allowing their counsel to
withdraw, they are presumptively represented by counsel. In cases
like this one, where counsel for some reason fails to take the steps
that would preserve the right to appeal, an attentive and diligent
defendant could save the appeal with a simple pro se filing, but our
nullity rule leaves the defendant powerless to do so. And after our
2
recent decision in Cook v. State, 1 which eliminated the judge-made
“motion for out-of-time appeal,” that direct appeal is lost—unless the
defendant can somehow revive it in a habeas corpus proceeding,
where the defendant no longer has the right to counsel, may assert
only constitutional claims, and is subject to a four-year statute of
limitations.
In sum, our absolute nullity rule has no basis in either
Constitution or statute, and it is virtually unreasoned, in conflict
with our own decisions, and potentially destructive of the appeal
rights of criminal defendants. Stare decisis does not require us to
perpetuate a legal rule that is so obviously and harmfully wrong,
and so we overrule our past decisions to the extent they held that a
pro se filing by a counseled defendant is always a legal nullity.
As a result, our past decisions recognizing that courts retain
discretion to allow hybrid representation control. This means a court
has the discretion to recognize a timely and otherwise procedurally
proper pro se filing made by a defendant who is still formally
1 313 Ga. 471, 506 (5) (870 SE2d 758) (2022).
3
represented by counsel. Given the logistical and legal problems
hybrid representation can cause, we expect that courts will exercise
this discretion only rarely, as when trial counsel has failed to act
within the prescribed time period to preserve the defendant’s right
to appeal and a pro se filing would preserve that right. And when a
court chooses to recognize such a filing, it should make that exercise
of discretion clear on the record.
In this case, this means that the trial court must be given the
chance in the first instance to determine whether to recognize any
of the defendant’s pro se post-conviction filings and consider them
on their merits. We therefore vacate the judgment and remand with
direction, as explained more fully below.
1. Garry Deyon Johnson was convicted of malice murder and
robbery in connection with the 1997 killing of Irene Shields. Johnson
was sentenced to life in prison without the possibility of parole plus
a consecutive 20-year term. 2 The judgment of conviction and
2 The State had sought the death penalty, but the jury recommended a
sentence of life without parole.
4
sentence was entered on November 17, 2000.
On December 12, 2000, Johnson’s lead trial counsel, Jack
Boone, filed a motion to withdraw, which the trial court granted on
the same day. Johnson’s other appointed attorney, Luther
McDaniel, did not move to withdraw at that time or any time
thereafter.
The next day, Johnson filed a pro se “Extraordinary Motion for
New Trial.” 3 Two days later, Johnson sent a letter to the trial court
clerk requesting his trial transcript, stating that “[a]t this time I
have no attorney and wish to proceed with my appeal pro se.” In
January 2001, Johnson again wrote to the clerk, requesting copies
of filings, and the clerk responded with the requested materials.
In September 2001, in response to further correspondence from
Johnson, the clerk sent a letter informing him that an attorney, Paul
David, had been appointed for his appeal and that Johnson would
3 Before this filing, Johnson had also filed a pro se “Preliminary Motion
to Vacate Judgment and/or Motion for New Trial” (filed on the day the verdicts
were rendered) and a pro se “Motion for Judgment Not With Standing the
Verdict” (filed on the day of his sentencing).
5
need to seek copies of any additional filings from the attorney. But
later correspondence from September and October reflects that
Johnson continued to seek transcripts directly from the court,
informing the clerk that “[t]he appointed attorney . . . has not
responded to any of my requests at all.” 4 David never entered an
appearance in the case.
Johnson continued corresponding with the clerk on his own.
The record shows correspondence through August 2004, followed by
a more-than twelve-year gap until December 2016, when Johnson
sent a letter asking for various filings. In April 2017, Johnson sent
a letter to the clerk stating that he had never gotten a ruling on his
motions for new trial, that his trial attorneys were deceased or not
practicing law, and that he was indigent.
In December 2017, Johnson’s current appellate counsel entered
an appearance in the case. At counsel’s request, the court appointed
4 Evidence from Johnson’s eventual motion-for-new-trial hearing reflects
that the supposed appointed attorney, Paul David, had no recollection of
having been appointed and was disbarred in 2007 for, among other things,
abandoning ten criminal-defendant clients during a period from 1999 through
2002. See In re David, 282 Ga. 517 (651 SE2d 743) (2007).
6
a special master to reconstruct, to the extent possible, Johnson’s
trial counsel’s case file and to obtain other information, evidence,
and transcripts from court staff, the court reporter, the Burke
County Sheriff’s Office and District Attorney’s Office, and the GBI
to assist in Johnson’s counsel’s review of the case.
In December 2018, the trial court entered a consent order
granting Johnson leave to file an “out of time motion for new trial
and appeal.” Hearings were held on the motion in December 2018,
May 2019, and May 2021. On January 28, 2022, the trial court
denied the motion.
Through counsel, Johnson filed a notice of appeal on February
21, 2022. When the appeal was docketed in this Court, we initially
dismissed it. We explained that the December 13, 2000 motion for
new trial was a legal nullity because it was filed pro se at a time
when Johnson was presumed to be represented by counsel, relying
on White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489) (2017); 5 the
5 In White, we held that after conviction, a defendant is presumed to be
represented by trial counsel, absent a formal withdrawal or substitution, at
7
later motion filed by counsel was untimely; and, to the extent it was
filed with leave from the trial court as an out-of-time motion for new
trial or appeal, those remedies were no longer cognizable after Cook.
But on reconsideration, we vacated the dismissal order and
reinstated the appeal. In doing so, we asked the parties and invited
amici curiae to address whether “a pro se filing made by a defendant
who is actually or presumptively represented by counsel [is] always
a nullity.” 6
2. The answer to this legal question should be an easy “no.”
Although defendants in Georgia do not have a constitutional or
statutory right to hybrid representation, neither is there any
constitutional or statutory prohibition against it, and courts
otherwise have broad discretion to control their processes and those
appearing before them. See, e.g., OCGA § 15-1-3. But although some
least through the end of the term of court in which the judgment of conviction
was entered.
6 We thank the Solicitor General’s Unit of the Office of the Attorney
General of Georgia, the Prosecuting Attorneys’ Council of Georgia, the Georgia
Association of Criminal Defense Lawyers, and the Public Defender Council for
their helpful amicus curiae briefs.
8
of our earlier decisions recognized as much, later decisions began to
apply an absolute rule that pro se filings by counseled defendants
are legal nullities. That shift was not only in conflict with our earlier
decisions but also unreasoned and obviously wrong.
(a) We begin with the concept of “hybrid representation.”
Speaking generally, hybrid representation refers to when a
defendant acts on his or her own behalf in court while he is at the
same time represented by counsel. See, e.g., Cargill v. State, 255 Ga.
616, 622 (3) (340 SE2d 891) (1986), overruled on other grounds,
Manzano v. State, 282 Ga. 557, 560 (3) (b) (651 SE2d 661) (2007).
In the courts of our State today, there is no right to hybrid
representation. No such right is recognized under the United States
Constitution because asserting the right to be represented by
counsel is considered a waiver of the Sixth Amendment right of self-
representation. See McKaskle v. Wiggins, 465 U.S. 168, 183 (104 SCt
944, 79 LE2d 122) (1984); Cargill, 255 Ga. at 622 (3); Burney v.
State, 244 Ga. 33, 35-36 (2) (257 SE2d 543) (1979). In the past, a
right to hybrid representation was recognized under our state
9
Constitution, which provided that “[n]o person shall be deprived of
the right to prosecute or defend his own cause in any of the courts of
this state, in person, by attorney, or both.” Ga. Const. of 1976, Art.
I, Sec. I, Par. IX (emphasis added). See Burney, 244 Ga. at 36-37 (2)
(construing “the express terms” of the 1976 Constitution as
guaranteeing the right to represent oneself even while being
represented by counsel); see also Bloomfield v. Liggett & Myers, Inc.,
230 Ga. 484, 484 (198 SE2d 144) (1973) (noting that this same
provision was first adopted in the Constitution of 1877). But the
right was eliminated from our current Constitution, which contains
a provision almost identical to the earlier ones but notably omits the
key phrase “or both”:
No person shall be deprived of the right to prosecute or
defend, either in person or by an attorney, that person’s
own cause in any of the courts of this state.
Ga. Const. of 1983, Art. I, Sec. I, Par. XII. See Cargill, 255 Ga. at
622-623 (3) (noting elimination of “or both” language from 1983
version). That revision was apparently proposed in order to
“eliminate the problems created by” allowing “an individual who had
10
an attorney representing him at trial to assert his right of self-
representation . . . and actively participate in the trial as co-counsel.”
Nelms v. Georgian Manor Condo. Assn., Inc., 253 Ga. 410, 412-413
& n.7 (321 SE2d 330) (1984). And soon after our current
Constitution was ratified, we held that this change indeed meant
that “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 623 (3) (citation and punctuation omitted). Accord
Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989) (“a
layperson does not have the right to represent himself and also be
represented by an attorney”).7
But the mere absence of a right to hybrid representation says
nothing about whether hybrid representation may be permitted. Put
7 We have, however, held that litigants who are lawyers cannot be barred
from representing themselves as co-counsel. See Seagraves, 259 Ga. at 39;
Cherry v. Coast House, Ltd., 257 Ga. 403, 406 (3) (359 SE2d 904) (1987). In
those situations, trial courts have broad authority to impose limits on the
mechanics of the hybrid representation to prevent the potential for courtroom
disorder and ensure that the litigant and his counsel “speak with one voice.”
Id. See also Seagraves, 259 Ga. at 39 (recognizing right to hybrid
representation for lawyer-litigants, subject to trial court’s authority to impose
limits “‘to insure the orderly disposition of matters before it’”).
11
another way, that a court may deny a defendant’s request for hybrid
representation without violating a right does not answer the
separate question whether a court may allow hybrid representation
in any given case. As to that question, no one before us has identified
anything in our Constitution or Code that prohibits hybrid
representation. And in fact, our Code recognizes that a court retains
wide discretion to control its “processes” as well as “the conduct of
its officers and all other persons connected with a judicial proceeding
before it.” OCGA § 15-1-3 (4), (6). In short, even absent a right to
hybrid representation, we are aware of no constitutional or statutory
provision that precludes a court from exercising discretion to allow
it when appropriate.
Some of our decisions have recognized this distinction. Soon
after we first recognized that the right to hybrid representation had
been eliminated from the current Georgia Constitution, we made
clear that this change did not affect trial courts’ discretion to allow
hybrid representation. As we put it at the time, “although a
defendant may not insist on acting as co-counsel, the trial court may,
12
as here, allow him to do so.” Hance v. Kemp, 258 Ga. 649, 650 (1)
(373 SE2d 184) (1988). We explained that, as with the choice to
proceed pro se, “the record should reflect that [the defendant’s]
choice to proceed as co-counsel was made after the defendant was
made aware of his right to counsel and the dangers of proceeding
without counsel.” Id. (cleaned up). Since then, a few of our decisions
have reaffirmed these points. See Isaacs v. State, 259 Ga. 717, 731
(24) (386 SE2d 316) (1989) (explaining that “[e]ven if the court
allows a defendant to act as co-counsel,” the court retains discretion
to require just one counsel to conduct voir dire of each juror because
the defendant “does not have the right to act as co-counsel”); Colwell
v. State, 273 Ga. 634, 638-639 (3) (544 SE2d 120) (2001) (rejecting
argument that “a hybrid form of representation was forced upon” the
defendant, but explaining that “although a defendant may not insist
on acting as co-counsel, the trial court may allow him or her to do so
once he or she has been advised of his or her right to counsel and of
the dangers inherent in proceeding as one’s own co-counsel” (cleaned
up)); Rivera v. State, 282 Ga. 355, 362-363 (8) (647 SE2d 70) (2007)
13
(same).
The above decisions recognized that courts have discretion to
allow hybrid representation when a defendant seeks to actively
represent himself as co-counsel. A couple of other decisions
suggested that this discretion also covered the decision whether to
allow the more limited form of hybrid representation where a
counseled defendant seeks merely to submit his own pro se filings.
In Eagle v. State, 264 Ga. 1, 3 (5) (440 SE2d 2) (1994), the defendant
filed a pro se brief in addition to the one submitted by his counsel.
Noting that the defendant was represented by counsel and that he
had no right to hybrid representation, we said that “the additional
claims raised in Eagle’s pro se brief will not be considered.” Id. And
in Smith v. State, 267 Ga. 372, 378 (12) (477 SE2d 827) (1996), we
declined to “separately consider[]” a counseled defendant’s
“untimely supplemental enumerations of error filed pro se.”
Although we declined to recognize the pro se filings of counseled
defendants in these decisions, we did not suggest that a court’s
discretion to allow hybrid representation (or not) worked any
14
differently for pro se filings than it would for defendants who wanted
to serve as active co-counsel.
(b) But our decisions on pro se filings by counseled defendants
soon lost the thread.
It started innocently enough: In Johnson v. State, 266 Ga. 775,
779 (9) (470 SE2d 637) (1996), we held that a trial court erred in
“addressing the merits” of a motion for new trial filed pro se by a
counseled defendant on the issue of ineffectiveness of trial counsel
“while [the defendant] was still being represented by the trial
counsel.” This conclusion was not necessarily inconsistent with our
prior decisions acknowledging a court’s discretion to allow hybrid
representation as a general matter. The problem in Johnson was not
the defendant’s attempt at hybrid representation as such, but that
the defendant had brought—and the trial court had addressed—a
pro se claim of ineffective assistance based on the conduct of the very
counsel who was still representing him. Id. And our conclusion was
not that the pro se filing itself was entirely without effect—to the
contrary, we remanded the case for the trial court to “consider the
15
allegation of ineffective assistance” from the pro se filing on remand
once the defendant was represented by new counsel. Id. (emphasis
added). In short, Johnson stood for the narrow proposition that a
trial court could not “address” a pro se claim of ineffective assistance
of trial counsel while the defendant was still represented by that
same trial counsel. See id. Accord Kennebrew v. State, 267 Ga. 400,
402 (2) (480 SE2d 1) (1996).
But after Johnson was decided, we began citing it for a
different and much broader proposition: an absolute rule that pro se
filings made while a defendant is represented by counsel are
“invalid,” Ware v. State, 267 Ga. 510, 511 & n.2 (2) (480 SE2d 599)
(1997), or put another way, “unauthorized and without effect,”
Cotton v. State, 279 Ga. 358, 361 (5) (613 SE2d 628) (2005). See also
Britt v. Conway, 283 Ga. 474, 476 n.3 (660 SE2d 526) (2008) (citing
Johnson in concluding that pro se filing challenging trial court order
did not put that order “at issue” on appeal because “an appellant
does not have the right to be represented by counsel and also to
represent himself” (cleaned up)). More recently, we have described
16
such filings as “legal nullities.” See, e.g., Sims v. State, 312 Ga. 303,
303 n.2 (862 SE2d 507) (2021) (pro se filings made by counseled
defendant were “legal nullities”); White v. State, 302 Ga. 315, 319 (2)
(806 SE2d 489) (2017) (trial court correctly treated pro se filings by
counseled defendant as “legal nullities”). And based on this rule, we
have held that trial courts err when they rule on the merits of such
filings. See, e.g., Meheux v. State, 309 Ga. 857, 858-859 (848 SE2d
844) (2020) (vacating order ruling on merits of counseled defendant’s
pro se motion for new trial); Ringold v. State, 309 Ga. 443, 445-446
(847 SE2d 181) (2020) (vacating order ruling on counseled
defendant’s pro se motion to withdraw plea); Pounds v. State, 309
Ga. 376, 384 (4) (846 SE2d 48) (2020) (holding that trial court was
not authorized to rule on counseled defendant’s pro se motion for
new trial); Ricks v. State, 307 Ga. 168, 169-170 (835 SE2d 179)
(2019) (vacating order ruling on counseled defendant’s pro se
filings); Dos Santos v. State, 307 Ga. 151, 160 (6) (834 SE2d 733)
(2019) (vacating order ruling on counseled defendant’s pro se motion
to withdraw guilty pleas).
17
Unlike some of our earlier decisions addressing hybrid
representation after the Constitution of 1983 was ratified, these
decisions leave no apparent room for courts to exercise discretion to
allow hybrid representation—not even in the limited form of a pro
se filing. Instead, they each rejected the pro se filing at issue based
only on the fact that a defendant was counseled when the pro se
filing was made. See, e.g., Sims, 312 Ga. at 303 n.2 (“the pro se
filings . . . are legal nullities because Sims was still represented by
counsel when he filed them”) (emphasis added); White, 302 Ga. at
319 (2) (“The trial court therefore correctly treated [the defendant’s]
pro se filings as legal nullities, because he was represented by counsel
when he made them.”) (emphasis added); Johnson v. State, 300 Ga.
252, 256 n.6 (2) (794 SE2d 60) (2016) (“Appellant was represented by
counsel when he filed that [speedy trial] demand, so it was invalid.”)
(emphasis added); State v. Porter, 288 Ga. 524, 529 n.2 (2) (c) (4) (705
SE2d 636) (2011) (“This [speedy trial] demand was filed while [the
defendant] was represented by counsel. For this reason, the [courts
below] correctly ruled that the demand had no legal effect.”)
18
(emphasis added); Williams v. Moody, 287 Ga. 665, 668-669 (2) (697
SE2d 199) (2010) (“A pro se motion filed by a convicted defendant
while represented by counsel is ‘unauthorized and without effect.’”);
Cotton, 279 Ga. at 361 (“Since he was represented by new appellate
counsel at the time he filed this pro se motion, however, it was
unauthorized and without effect.”) (emphasis added).
The absolute rule applied in these decisions—that a pro se
filing by a counseled defendant is a nullity, full stop—is not only in
outright conflict with our earlier decisions recognizing a court’s
discretion to allow hybrid representation. Compare Rivera, 282 Ga.
at 362 (8); Colwell, 273 Ga. at 638-639 (3); Isaacs, 259 Ga. at 731(24); Hance, 258 Ga. at 650 (1). It is also based in an explanation
that is both cursory and obviously wrong. When these decisions offer
any support at all for this absolute rule, they pin it only on the point
that a defendant in Georgia no longer has the right to hybrid
representation. See, e.g., Lopez v. State, 310 Ga. 529, 536 (5) (852
SE2d 547) (2020) (“[A] criminal defendant ‘does not have the right
to represent himself and also be represented by an attorney.’ [Cit.]
19
Thus, a pro se filing by a represented party is a legal nullity without
effect.”) (emphasis added); Dos Santos, 307 Ga. at 154 (3) (“Dos
Santos’s pro se motion to withdraw her pleas was unauthorized and
without effect, because she had no right to represent herself at the
same time she was represented by a lawyer”) (emphasis added);
Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“A
criminal defendant in Georgia does not have the right to represent
himself and also be represented by an attorney, and pro se filings by
represented parties are therefore ‘unauthorized and without effect.’”)
(emphasis added); see also White, 302 Ga. at 319 (2) (quoting that
exact language from Tolbert); Smith v. State, 297 Ga. 214, 216 (4)
(773 SE2d 209) (2015) (same). This is true, but it is not support for
the absolute rule that follows. Not having a protected right to do
something, without more, does not mean one is not allowed to do
that thing. Yet these decisions offer nothing else to justify a flat
prohibition against pro se filings made by counseled defendants.
(c) This wrong turn in our precedent is not a harmless one.
The problem rears its head in the important period right after
20
the entry of final judgment on a defendant’s convictions and
sentence. During that period, transitions in legal representation are
common, and the defendant also faces tight deadlines for pursuing
post-conviction review or an appeal. See, e.g., OCGA §§ 5-6-38 (a)
(30-day deadline from entry of judgment for filing notice of appeal);
5-5-40 (a) (30-day deadline from entry of judgment for filing motion
for new trial); 17-9-61 (b) (motion in arrest of judgment must be
made during term in which judgment entered); McKiernan v. State,
286 Ga. 756, 757 (692 SE2d 340) (2010) (explaining that “a motion
to withdraw a guilty plea may be entertained by the trial court . . .
within the same term of court in which the plea was entered and the
defendant sentenced”). See also White, 302 Ga. at 318 (2) (describing
the post-conviction period as “a point in the proceeding when
important decisions need to be made and actions potentially taken,
often with short deadlines” for the filing of post-trial or post-plea
motions or notices of appeal).If everything works like it is supposed
to, either trial counsel or new appellate counsel, after conferring
with the defendant, makes the proper filing to seek any appropriate
21
review. But sometimes that doesn’t happen: although a defendant
wishes to appeal, or move for a new trial, or withdraw a guilty plea,
counsel fails to timely file the proper papers out of neglect or for any
number of other reasons. In those cases, a defendant’s pro se filing
could save the right to these important kinds of review, including a
defendant’s one shot at a direct appeal. But our absolute rule deems
such filings nullities if the defendant is still represented by counsel,
eliminating that self-help option for preserving the defendant’s
rights.
And some of our more recent decisions have foreclosed
arguments that might have relieved the harsh effect of that rule.
First, we have rejected arguments that a pro se filing could be
treated as valid where a defendant who was formally represented at
trial was effectively without counsel at the time of a post-conviction
filing. In Tolbert, we held that a trial court’s on-the-record
“indication” that it would grant a motion to remove counsel and
counsel’s later filing of a motion to withdraw were not enough to
show that the defendant was no longer represented. Tolbert, 296 Ga.
22at 362 (3). Instead, we concluded that the defendant remained
represented—making any pro se filings nullities—because he could
not point to a “formal withdrawal” demonstrated by an order
allowing withdrawal. Id. And then in White, we held that “at a
minimum,” a defendant continues to be represented by his trial
counsel until the end of the term of court in which his judgment of
conviction is entered, “unless interrupted by entry of an order
allowing counsel to withdraw or compliance with the requirements
for substitution of counsel.” 302 Ga. at 319 (2). 8 So when a defendant
has been abandoned by counsel during the critical post-conviction
period, these rules can interact with our nullity rule to prevent even
an attentive and diligent defendant from preserving his right to
8 We have carved out a narrow exception to White’s rule that applies
“when a criminal defendant invokes his constitutional right to self-
representation and that request is granted on the record in open court.” Walker
v. State, 308 Ga. 749, 753 (1) (843 SE2d 561) (2020). In Walker, we held that a
pro se notice of appeal was valid, despite the absence of an order relieving
counsel of his duties, where the defendant had expressly invoked his right to
self-representation on the record after his sentence was pronounced, and the
trial court, after engaging in a colloquy with the defendant, made a finding on
the record that the defendant was freely, intelligently, and knowingly waiving
his right to counsel. Id. Under these circumstances, the defendant’s pro se
motion for new trial, filed one day after the trial court’s on-the-record finding,
was deemed valid. Id.23
appeal. See, e.g., Jones, 308 Ga. at 338 (noting that formal
representation continued absent an order allowing withdrawal or
proper substitution, and even “if Jones in fact was abandoned by her
counsel while she was still formally represented, she could not have
filed a notice of appeal”).
We acknowledged this “unfortunate” consequence in Dos
Santos, but we pointed out that defendants whose appeal rights
were frustrated by ineffective assistance of counsel “have a remedy”
because they “may seek an out-of-time appeal in the trial court or in
habeas corpus.” Dos Santos, 307 Ga. at 159 (5). See, e.g., Jones, 308
Ga. at 338 (holding that defendant was entitled to merits
consideration of her motion for out-of-time appeal where she alleged
her failure to file an appeal was due to trial counsel’s abandoning
her after sentencing). 9 The option of seeking an out-of-time appeal
9 In the guilty-plea context, we have also admonished criminal defense
lawyers that they “cannot simply abandon their . . . clients immediately after
the defendants enter guilty pleas and are sentenced” and suggested that “plea
counsel may protect their client’s interests by filing a timely, bare-bones
‘placeholder’ motion to withdraw guilty plea,” which preserves the defendant’s
right to pursue such relief and “might be amended later (by conflict-free new
counsel if necessary).” Dos Santos, 307 Ga. at 157, 159 (5). Accord Ringold, 309
Ga. at 446 n.2.
24
in the trial court, however, is no more. Last year, this Court held
that the motion for out-of-time appeal was “not a legally cognizable
vehicle for a convicted defendant to seek relief for alleged
constitutional violations” in the court of conviction. Cook v. State,
313 Ga. 471, 506 (5) (870 SE2d 758) (2022). Although Cook did not
eliminate the out-of-time appeal as a remedy in habeas proceedings,
it significantly narrowed the opportunities for defendants to revive
appeal rights lost as a result of ineffective counsel. See Dougherty v.
State, 315 Ga. 188, 196 n.6 (880 SE2d 523) (2022) (Ellington, J.,
concurring) (alluding to the effect of eliminating motions for out-of-
time appeal on defendants whose counsel abandon them post-
conviction).
In sum, after Cook, the potential that the nullity rule will apply
in a way that prevents defendants from ever exercising their rights
of appeal and other post-conviction review is even greater. In cases
where a defendant’s counsel fails to preserve those rights—whether
because of abandonment or some other reason—and the defendant
cannot secure an order allowing withdrawal in time, those rights are
25
lost. And the sole remedy for such a defendant is in habeas corpus,
a proceeding in which the defendant no longer enjoys the right to
counsel, may assert only constitutional claims, and is subject to a
four-year statute of limitations. See OCGA § 9-14-42 (a), (c) (making
habeas relief available for asserting “substantial denial of [one’s]
rights under the Constitution of the United States or of this state”
and requiring such actions to be brought “within four years in the
case of a felony”); Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d
186) (1999) (noting that habeas is “‘not designed as a substitute for
direct review’” and that “there is no federal or state constitutional
right to appointed counsel in Georgia habeas corpus proceedings”
(citation and punctuation omitted)). 10
3. For all of these reasons, we asked the parties in this case and
amici to address the nullity rule in its current form. Their collective
response is telling. Although they differ some in their views on the
10 The extraordinary motion for new trial is not a viable solution for every
forfeited direct appeal because we have held that such motions are not vehicles
for asserting constitutional claims. See Mitchum v. State, 306 Ga. 878, 885 (1)
(c) (834 SE2d 65) (2019).
26
wisdom of the current nullity rule as a policy matter and on potential
alternatives to it, no one appears to dispute what we have covered
so far: (1) Nothing in our Constitution or Code either prohibits
hybrid representation as a general matter or requires treating pro
se filings by counseled defendants as always nullities. (2) To the
contrary, courts have broad discretion to control their processes and
the conduct of those before them. (3) Our decisions adopting and
applying the nullity rule offer no reasoning in support of it beyond
the implicit and obviously wrong suggestion that the absence of a
right to hybrid representation somehow prohibits it. (4) There is no
serious argument that these decisions can be reconciled with our
earlier decisions recognizing a court’s discretion to allow hybrid
representation. And (5) in the current legal landscape, the rule
works real and irreparable harm to the appeal rights (and other
rights of review) of criminal defendants whose counsel have
abandoned them or otherwise failed to discharge their duties.
So the question reduces to whether to follow our decisions that
have applied the absolute nullity rule. When we consider whether to
27
follow past decisions, stare decisis is the strong default rule. The
doctrine not only keeps our law more consistent and stable, but it is
essential to preserving the rule of law. See State v. Jackson, 287 Ga.
646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important
principle that promotes the rule of law . . . .”); Cobb v. State, 187 Ga.
448, 452 (200 SE 796) (1939) (“The application of the doctrine of
stare decisis is essential to the performance of a well-ordered system
of jurisprudence.”); Ammons v. State, 315 Ga. 149, 169 (880 SE2d
544) (2022) (Pinson, J., concurring) (following past decisions
“promotes a system of equal treatment under the law rather than
one built on ‘arbitrary discretion’” (citing The Federalist No. 78, at
529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)).
In rare cases, however, following a past decision would do more
harm to the rule of law than overruling it would. Our nullity rule
presents one of those rare cases. As we have explained at length
above, that rule is not only wrong but obviously so; unreasoned
(bordering on accidental); in conflict with our own decisions; and can
and does work genuine harm to important review rights of even the
28
most attentive and diligent criminal defendants. Moreover, stare
decisis applies with less force to a judge-made rule that governs only
“internal Judicial Branch operations” and so does not affect parties’
out-of-court affairs. Pearson v. Callahan, 555 U.S. 223, 233-234 (II)
(B) (129 SCt 808, 172 LE2d 565) (2009) (reasoning that “revisiting
precedent is particularly appropriate” where doing so “would not
upset expectations, the precedent consists of a judge-made rule that
was recently adopted to improve the operation of the courts, and
experience has pointed up the precedent’s shortcomings”). Accord
Cook, 313 Ga. at 490-491 (3) (c). Compare Olevik v. State, 302 Ga.
228, 245 (2) (c) (iv) (806 SE2d 505) (2017) (explaining that reliance
interests are an “important consideration for precedents involving
contract and property rights” because “parties may have acted in
conformance with existing legal rules in order to conduct
transactions”). For all of these reasons, stare decisis does not require
preserving the nullity rule. See Ammons, 315 Ga. at 171-172
(Pinson, J., concurring) (“If the past decision in question is
unreasoned, or if it disregards the basic legal principles that courts
29
use to do law, the argument for overruling is easier to make.”); Cook,
313 Ga. at 487 (3) (b) (overruling decisions recognizing motions for
out-of-time appeal because that remedy “ha[d] neither a statutory
nor a common-law basis,” and the decisions recognizing it failed to
acknowledge the Habeas Corpus Act, were “devoid of reasoning
showing why [the remedy] could or should exist,” and “ignored
precedent from this Court” rejecting such a remedy); Gilliam
v. State, 312 Ga. 60, 63 (860 SE2d 543) (2021) (overruling decision
that took jurisdiction over certain appeals for “judicial economy,”
“ignor[ing] the constitutional parameters of [the Court’s]
jurisdiction without any significant analysis”); Pounds, 309 Ga. at
382 (3) (overruling decision regarding effect of untimely motion for
new trial as “unsound” and “inconsistent with applicable legal
principles articulated in our other case law in this area”); State v.
Hudson, 293 Ga. 656, 661-662 (748 SE2d 910) (2013) (overruling
decision that “contain[ed] no analysis supporting its adoption of the
count-by-count approach but instead adopt[ed] that approach as
though there were no other alternative” (emphasis in original)).
30
In considering whether to overrule precedent, this Court has
typically considered “factors such as” the “soundness” of the
precedent’s reasoning, its “age,” its “workability,” and “the reliance
interests at stake.” Jackson, 287 Ga. at 658. This “list of factors . . .
has never purported to be exclusive,” Cook, 313 Ga. at 485, and
several of us have expressed concerns with those factors, or at least
with how they are usually applied, see Ammons, 315 Ga. at 173 n.21
(Pinson, J., concurring) (criticizing factors as “inherently malleable”
and not focused on rule-of-law concerns with overruling precedent);
Cook, 313 Ga. at 510 (Peterson, J., dissenting). But in any event,
those factors cut in favor of overruling the precedent at issue here,
for many of the reasons explained at length above. We have already
explained that the rule’s reasoning was “unsound,” which this Court
has called “the most important factor” in that analysis. Id. We have
overruled a number of decisions similar in age to the decisions from
the 1990s and 2000s that adopted and applied the nullity rule. See,
e.g., Cook, 313 Ga. at 503 (3) (e) (overruling 27-year-old precedent);
City of Cumming v. Flowers, 300 Ga. 820, 832 (6) (a) (797 SE2d 846)
31
(2017) (overruling 21-year-old precedent); Ga. Dept. of Nat.
Resources v. Ctr. for a Sustainable Coast, 294 Ga. 593, 601-602 (2)
(755 SE2d 184) (2014) (overruling 19-year-old precedent); Jackson,
287 Ga. at 660 (6) (overruling nearly 30-year-old precedent). Rules
of appellate procedure usually do not create significant reliance
interests. See Pounds, 309 Ga. at 382 (3) (precedent about legal
effect of late-filed motions for new trial and orders disposing of such
motions involved only appellate procedure that did not implicate
significant reliance interests); Southall v. State, 300 Ga. 462, 467 (1)
(796 SE2d 261) (2017) (precedent about effect of prematurely filed
motions for new trial involved only an issue of appellate procedure
that did not implicate significant reliance interests). And as for
“workability,” however easy to administer an absolute nullity rule
might be, it does not adequately account for the high cost to criminal
defendants whose lawyers fail to act to preserve their appeal rights
during the critical post-conviction period.
So we overrule our past decisions to the extent that they hold
that pro se filings by counseled defendants are always legal
32
nullities. 11
4. Having overruled the nullity rule in its absolute form, we are
left with our past decisions that correctly recognized that courts
retain discretion to allow hybrid representation. See Rivera, 282 Ga.
11 Those decisions include but are not limited to Meheux, 309 Ga. at 858;
Ringold, 309 Ga. at 446; Pounds, 309 Ga. at 384 (4); Ricks, 307 Ga. at 169-170;
and Dos Santos, 307 Ga. at 154-155 (3).
We also disapprove any language in our prior decisions suggesting that
pro se filings by counseled defendants are always nullities. See, e.g.,
Dougherty, 315 Ga. at 188 (noting that earlier appeal was dismissed because
pro se motion for new trial that trial court had ruled on was “‘a legal nullity’”);
Walker, 308 Ga. at 752-753 (1) (noting with tacit approval our holding in
Tolbert that because “Tolbert was represented by counsel when he filed his pro
se notice of appeal,” his notice of appeal was “a legal nullity”); Jones, 308 Ga.
at 338 (noting in dicta that defendant “could not have filed” a notice of appeal
while she was still formally represented by counsel and that “any pro se filing
in this regard would have been a nullity”); Sims v. State, 312 Ga. 303, 303 n.2
(862 SE2d 507) (2021) (noting in dicta that pro se motions that trial court had
not ruled on were “legal nullities”); Howard v. State, 307 Ga. 12, 12 n.1 (834
SE2d 11) (2019) (noting that earlier appeal was dismissed because pro se
motion for new trial that trial court had ruled on was “a nullity”); Veal v. State,
301 Ga. 161, 167 (3) n.3 (800 SE2d 325) (2017) (noting in dicta that defendant’s
pro se motion to vacate conviction “had no legal effect”); State v. Porter, 288
Ga. 524, 529 n.2 (2) (c) (4) (705 SE2d 636 (2011) (noting in dicta that courts
below had correctly ruled that pro se defendant’s speedy-trial demand “had no
legal effect”).
Similarly, any Court of Appeals decisions are overruled to the extent
they hold that pro se filings by counseled defendants are always legal nullities,
and any language in any Court of Appeals decisions suggesting the same is
disapproved.
33
at 362 (8); Colwell, 273 Ga. at 638-639 (3); Isaacs, 259 Ga. at 731(24); Hance, 258 Ga. at 650 (1). See also Eagle, 264 Ga. at 3 (5);
Smith, 267 Ga. at 377 (12). That includes the discretion to recognize
pro se filings: a pro se filing by a counseled defendant is not a legal
nullity per se. Instead, consistent with a court’s general discretion to
control its processes and the conduct of those who appear before it,
a court has the discretion to recognize a timely and otherwise
procedurally proper pro se filing made by a defendant who is still
formally represented by counsel. 12
We expect that courts will exercise discretion to recognize pro
se filings by counseled defendants sparingly. As some amici note,
hybrid representation usually “creates more problems than [it] can
solve,” United States v. Couch, 758 Fed. App’x 654, 656-657 (10th
12 The Attorney General contends that allowing pro se post-conviction
filings would “muddy counsel’s ethical and constitutional obligations”—
effectively letting attorneys off the hook for protecting their clients’ appeal
rights by giving clients the ability to fend for themselves. But this rule has no
effect on counsel’s ethical duties to their clients, including their duty to
preserve their clients’ appeal rights. See Dos Santos, 307 Ga. at 157 (5)
(“Defense counsel are obligated to continue to represent their clients at least
until the time for [seeking] post-conviction remedies expires (and if such a
remedy is timely pursued, until it is resolved).”).
34
Cir. 2018), and courts undoubtedly are sensitive to those problems,
which may include the potential for undue delay, conflicting claims
and arguments, and more. See, e.g., State v. Debra A.E., 523 NW2d
727, 737 (Wis. 1994) (noting that “the arguments raised in a pro se
brief may contradict and undermine the issues advanced in counsel’s
brief” and “the consideration of every argument that a defendant
chooses to raise, in addition to those an attorney submits, could
strain judicial resources”); California v. Clark, 833 P2d 561, 637
(Cal. 1992) (citing “undesirability of fruitlessly adding to the
burdens of this court the time-consuming task of reading pro se
documents” submitted by counseled defendants). But any such
concerns may give way when recognizing a pro se filing would
preserve a right of appeal that would otherwise be lost through no
fault of the defendant. Exercising discretion under these
circumstances would seem to us squarely “in the furtherance of
justice.” OCGA § 15-1-3 (4).13
Such appeal-preserving filings include not only a notice of appeal but
13
also those motions, such as motions for new trial, that extend the time for filing
35
Because we expect that the recognition of pro se filings by
counseled defendants will be the exception and not the rule, unless
the record indicates that the court recognized the filing, it will be
presumed that the court did not do so. So when a court chooses to
recognize such a filing—as when trial counsel has failed to act
within the prescribed time period to preserve the defendant’s right
to appeal and the defendant timely makes a pro se filing that would
preserve that right—it should make that exercise of discretion clear
on the record. 14 That decision whether to recognize a pro se filing by
a notice of appeal. See OCGA § 5-6-38 (a) (“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 [of appeal] shall be filed within 30 days after
the entry of the order granting, overruling, or otherwise finally disposing of the
motion”). For convictions on a guilty plea, a motion to withdraw the plea should
also be considered an appeal-preserving filing.
14 This is not to say that allowing an appeal-preserving pro se filing alone
triggers a Faretta hearing, see Faretta v. California, 422 U.S. 806 (95 SCt 2525,
45 LE2d 562) (1975), or requires an express finding that the defendant made
the choice to file knowingly and intelligently. Unlike the decision to allow
active self-representation—whether as co-counsel or fully pro se—recognizing
the validity of a pro filing merely allows the filing to preserve the defendant’s
rights and may well invite further inquiry from the court as to the status of the
defendant’s legal representation. Compare Wiggins v. State, 298 Ga. 366, 369
(2) (782 SE2d 31) (2016) (citing Faretta for principle that “[w]hen a defendant
asserts the right to self-representation, it is the responsibility of the trial judge
to ensure that the decision to dismiss counsel and proceed pro se has been
knowingly and intelligently made and that the defendant has made the choice
36
a counseled defendant is committed to the court’s sole discretion. 15
In so holding, “we do not undo what has been done” with
respect to any pro se filings in cases that have already been
adjudicated through direct appeal. See Cook, 313 Ga. at 504 (3) (e).
We have “long followed” the “pipeline” approach for determining
how new rules of criminal procedure apply to criminal cases. Id. at
504 (4). Under this approach, “a new state rule of criminal procedure
will be applied to all cases then on direct review or not yet final.” Id.
(cleaned up). Thus, our holding here applies to future cases and
those pending cases whose direct appeals have not yet been
adjudicated.
5. Which brings us back to Johnson’s case. When we asked the
parties and amici to address the nullity rule, we did so with the
understanding that, to the extent the trial court’s order purported
to rule on Johnson’s out-of-time motion for new trial, Cook would
to proceed without the benefit of counsel with ‘eyes open’”).
15 Although many such decisions will be made by trial courts, the decision
whether to recognize a pro se notice of appeal remains one for appellate courts
to make. See Jones v. Peach Trader Inc., 302 Ga. 504, 510 (II) (807 SE2d 840)
(2017).
37
require that we vacate that order (as well as the order granting the
motion seeking to file the motion) and direct the dismissal of those
motions. See, e.g., Polanco v. State, 313 Ga. 598, 598-599 (872 SE2d
268) (2022) (vacating order denying motion for out-of-time appeal
and remanding with direction to dismiss); Rutledge v. State, 313 Ga.
460, 461 (870 SE2d 720) (2022) (same). We thus recognized that our
ability to reach the merits of Johnson’s long-awaited appeal would
depend on how we resolved the nullity-rule question.
Our holding today leaves open the possibility of a merits review
for Johnson down the road, but not in this appeal. That is because
the only order currently before us is the January 28, 2022, order
denying Johnson’s out-of-time motion for new trial. That order does
not purport to rule on any motion other than the now-non-cognizable
out-of-time motion for new trial. It does not purport to rule on the
December 13, 2000 “Extraordinary Motion for New Trial,” or on
either of Johnson’s other two pro se motions filed before that, see
note 2. In fact, the order on its face reflects the court’s view that
those earlier motions were invalid, describing Johnson’s efforts to
38
obtain an appeal as “belated.” So it is clear that the proper
disposition of the appeal now before us is to vacate the trial court’s
order and remand for the trial court to dismiss Johnson’s motion for
out-of-time motion for new trial and the motion seeking leave to file
it. See Cook, 313 Ga. at 506 (5). However, on remand, the trial court
is directed to exercise its discretion to determine whether to
recognize and rule on any of the pro se post-conviction motions
Johnson filed.16
Judgment vacated and case remanded with direction. All the
Justices concur.
16 Johnson has argued in the alternative that, despite the absence of an
order permitting the withdrawal of co-counsel McDaniel, the order permitting
the withdrawal of lead counsel Boone should be construed as extending to
McDaniel as well. In support of this contention, Johnson cites Uniform
Superior Court Rule 4.5, which at the time provided:
[t]he entry of appearance or request for withdrawal by an attorney
who is a member or an employee of a law firm or professional
corporation shall relieve the other members or employees of the
same law firm or professional corporation from the necessity of
filing additional entries of appearance or requests for withdrawal
in the same action.
Johnson contends that Boone and McDaniel should be treated as members of
the same “law firm” or “professional corporation” for purposes of the
withdrawal because both attorneys were appointed by the Indigent Defense
Committee and acted in concert to represent him. We are not persuaded.
39