Steven Dean Mack v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 18, 2020
The Court of Appeals hereby passes the following order:
A20D0309. STEVEN DEAN MACK v. THE STATE.
Steven Dean Mack seeks discretionary review of a trial court order denying his
“Motion for Leave to File an Out-Of-Time Appeal.” However, Mack has had
numerous appeals in multiple courts, including three separate rulings in this Court
and three separate petitions for Writ of Habeas Corpus in state and federal courts, and
he is, therefore, not entitled to the relief he seeks.
Mack pled guilty to armed robbery in 2008 and was sentenced as a recidivist
to life in prison with the possibility of parole. He filed a pro se motion challenging
his conviction, and we affirmed in an unpublished opinion. Mack v. State, Case No.
A11A2330 (Dec. 7, 2011). We noted in our opinion that, to the extent Mack’s pro se
motion could be considered a motion to withdraw his plea, it was untimely. Mack
subsequently filed a pro se motion to modify his sentence, arguing that the trial court
failed to apply the rule of lenity. The trial court denied the motion, and we affirmed
the court’s order. Mack v. State, 323 Ga. App. 821 (748 SE2d 299) (2013). In 2017,
Mack filed a motion for leave to file an out-of-time appeal to address the validity of
his guilty plea. He argued that the trial court failed to advise him of his Boykin1 rights,
that he received ineffective assistance of counsel, and that his sentence was illegal.
The trial court denied the motion, finding that Mack’s sole remedy at that point was
1
In Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969), the
United States Supreme Court held that when a defendant pleads guilty, he must be
adequately advised of his rights (1) against self-incrimination, (2) to trial by jury, and
(3) to confront his accusers.
through habeas corpus proceedings. This Court issued an unpublished opinion
affirming the trial court’s order. Mack v. State, Case No. A18A0875 (Aug. 3, 2018).
In the opinion, we noted: (1) Because Mack already had two direct appeals, he was
not entitled to another out-of-time appeal;2 (2) Mack was barred from seeking
appellate review based upon the law of the case doctrine;3 and (3) Mack’s attempt to
challenge the validity of his guilty plea was untimely.4
In 2019, Mack again filed a “Motion for Leave to File an Out-Of-Time
Appeal.” The trial court denied the motion after concluding that Mack has had a full
and fair opportunity to pursue his available remedies, has had his case reviewed by
an appellate court, and has had state and federal habeas corpus proceedings. Mack
then filed this application for discretionary appeal. In his application, Mack argues
that “he ha[s] not been given an appeal of right that is given to a defendant who ha[s]
2
“An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9)
(2014) (citation omitted). “[T]here is no right to directly appeal the denial of a motion
for out-of-time appeal filed by a criminal defendant whose conviction has been
affirmed on direct appeal.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856)
(2002).
3
In Case Number A11A2330, we addressed Mack’s motion, which we
construed as a motion to withdraw a guilty plea. And, in Mack v. State, 323 Ga. App.
821, we addressed the legality of Mack’s sentence. Under these circumstances, Mack
is barred from seeking appellate review of these issues. Ross v. State, 310 Ga. App.
326, 327 (713 SE2d 438) (2011) (“It is well established that any issue that was raised
and resolved in an earlier appeal is the law of the case and is binding on this Court,
and that the law of the case doctrine is not confined to civil cases, but applies also to
rulings made by appellate courts in criminal cases.”) (footnotes and punctuation
omitted).
4
The time to withdraw Mack’s 2008 guilty plea has long passed. See Ward v.
State, 311 Ga. App. 53, 53 (714 SE2d 731) (2011) (“a trial court does not have
jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court
in which the defendant was sentenced under the plea. After the term of court has
expired, a defendant’s only means for withdrawing a guilty plea is through habeas
corpus proceedings.”) (citation and punctuation omitted).
gone to jury trial.” He claims that he filed the motion for an out-of-time appeal
“seeking a hearing to show substantive defects in his case that possibly led to an
involuntary and unknowing guilty plea.”
Generally, an order denying a motion for an out-of-time appeal is subject to
direct appeal under OCGA § 5-6-34 (a). See Rowland v. State, 264 Ga. 872, 876 (452
SE2d 756) (1995). In this case, however, Mack’s motion for an out-of-time appeal
was improper for the same reasons we detailed in Case No. A18A0875 (decided Aug.
3, 2018). Mack has already had multiple appeals to this Court and may not have
another one attempting to challenge the same issues. Accordingly, Mack’s appeal
from the denial of his motion for yet another out-of-time appeal on the same grounds
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”).
Based on the foregoing, Mack’s application for discretionary appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/18/2020
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.