ARTURO ACEVES RAMIREZ v. BARTOW COUNTY SUPERIOR COURT ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 11, 2022
The Court of Appeals hereby passes the following order:
A22A1304. ARTURO ACEVES RAMIREZ v. BARTOW COUNTY
SUPERIOR COURT et al.
In August 2012, Arturo Aceves Ramirez pleaded guilty to multiple counts of
aggravated assault and numerous other offenses and he was sentenced to a total term
of 40 years, with the first 35 years to be served in confinement. Over six years after
he was sentenced, Ramirez filed a motion for an out-of-time appeal in May 2019,
arguing that his trial counsel was ineffective for failing to advise him of his right to
appeal. The trial court summarily denied Ramirez’s motion without an evidentiary
hearing. In an unpublished opinion, we vacated the judgment and remanded the case
in order for the trial court to conduct a hearing because we could not determine from
the record whether the failure to timely pursue an appeal was the result of plea
counsel’s deficient performance. See Ramirez v. State, Case No. A20A0629 (April
8, 2020).
After the trial court failed to conduct a hearing, Ramirez filed a mandamus
petition in this Court seeking to compel the hearing. We subsequently dismissed the
petition because there was no indication that Ramirez had sought to obtain mandamus
relief in the superior court. Ramirez v. Bartow County Superior Court et al., Case No.
A21A1648 (July 1, 2021).
In March 2022, Ramirez attempted to file a writ of mandamus against the
judges of the Superior Court of Bartow County. The trial court did not file the petition
in light of the Georgia Supreme Court’s decision in Cook v. State, ___ Ga. ___, ___
(5) (Case No. S21A1270, decided March 15, 2022). In that case, the Court held that
a trial court lacks authority to grant an out-of-time appeal because “there was and is
no legal authority for motions for out-of-time appeal in trial courts.” Id. (noting that
Cook’s holding applies “to all cases that are currently on direct review or otherwise
not yet final”). Because Ramirez had no right to file a motion for out-of-time appeal,
the trial court reasoned that he was not entitled to a hearing on his motion. The
instant appeal followed. We, however, lack jurisdiction.
While judgments and orders granting or refusing to grant mandamus relief
generally are directly appealable, see OCGA § 5-6-34 (a) (7), under the Prison
Litigation Reform Act of 1996, an appeal in a civil action filed by a prisoner must be
initiated by filing an application for discretionary review. See OCGA § 42-12-8;
Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). Because Ramirez was
incarcerated at the time he attempted to file his petition, his failure to comply with the
discretionary review procedures deprives us of jurisdiction over this direct appeal,
which is hereby DISMISSED. See Jones, 267 Ga. at 490-491.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/11/2022
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.