Tyrus Lane v. State ( 2019 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
October 28, 2019
In the Court of Appeals of Georgia
A19A1110. LANE v. THE STATE. DO-037 C
DOYLE, Presiding Judge.
Tyrus Lane appeals pro se from a superior court order denying his motion for
leave to file an out-of-time appeal. For the following reasons, we vacate and remand
the case to the trial court.
The record shows that on April 27, 2012, Lane entered a non-negotiated guilty
plea to multiple offenses in four separate indictments in DeKalb County Superior
Court: robbery and two counts of battery in Case No. 09CR4122 ; theft by receiving
stolen property in Case No. 09CR8519 ; two counts of aggravated assault, robbery,
and false imprisonment in Case No. 10CR1206 ; and three counts of armed robbery
in Case No. 11CR2297. Lane was sentenced on each individual case, for a total
sentence of 20 years to serve 15 years in custody. On December 4, 2017, Lane filed
a motion for an out-of-time appeal in each of the four cases, arguing, among other
things, that his right to appeal was frustrated by plea counsel.1 The trial court denied
the motions on August 24, 2018, and this appeal followed.
On appeal, Lane contends that plea counsel was ineffective: (1) by failing to
adequately investigate and prepare his case; (2) by failing to inform him of his rights
under Boykin v. Alabama2; (3) by misinforming him that he faced four possible life
sentences in Case No. 11CR2297; and (4) by failing to file a motion to withdraw his
plea.
In the recent case of Collier v. State,3 the Supreme Court of Georgia overruled
decades of prior precedent, holding “that a defendant has an unqualified right to
1
On appeal, Lane maintains that immediately after entering his plea, he
“attempted to have trial counsel withdraw the plea.” He states that he sent family
members to counsel’s office to make such a request, but counsel responded that he
needed to “hear that from [Lane].” According to Lane, he was not able to contact
counsel before the expiration of the term of court shortly thereafter, and counsel made
no attempt to contact him or to file a motion to withdraw his plea.
2
395 U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969).
3
___ Ga. ___, ___ (1) (Case No. S19A0658, decided Oct. 21, 2019), citing
Garza v. Idaho, ___ U. S. ___ (139 SCt 738, 203 LE2d 77) (2019); Roe v.
Flores-Ortega, 528 U.S. 470 (120 SCt 1029, 145 LE2d 985) (2000); and Ringold v.
State, 304 Ga. 875 (823 SE2d 342) (2019).
2
appeal directly from a judgment entered on a guilty plea.”4 “[W]hen counsel’s
deficient performance forfeits an appeal that a defendant otherwise would have taken,
the defendant gets a new opportunity to appeal.”5 With regard to such a claim, Collier
holds that
[b]ecause the trial court denied [the defendant’s] motion for an
out-of-time appeal without holding an evidentiary hearing, we cannot
determine from the appellate record whether [the defendant’s] failure to
timely pursue an appeal was actually the result of his counsel’s deficient
performance. Moreover, we recognize that, given the clear, though
incorrect, mandate of the case law overruled by this opinion, [the
defendant] has not had a full and fair opportunity to pursue his motion
for an out-of-time appeal before the trial court, the State has not had a
full and fair opportunity to raise defenses, and the trial court has not had
the benefit of this opinion to guide its consideration of the parties’
evidence and argument.6
4
Santos v. State, ___ Ga. ___, ____ (5) (Case No. S19A1352, decided Oct. 21,
2019).
5
Collier, ___ Ga. at ___ (1), quoting Garza, ___ U. S. at ___ (III).
6
Collier, ___ Ga. at ___ (3).
3
Consistent with that holding, we therefore “vacate the order denying [Lane’s]
motion for an out-of-time appeal, and we remand the case to the trial court for
proceedings consistent with [Collier].”7
Judgment vacated and remanded with direction. Coomer and Markle, JJ.,
concur.
7
Id.
4