Burley v. State, 308 Ga. 650

In 1992 Douglas Burley pleaded guilty to malice murder and was sentenced to life; he did not file a timely direct appeal.
In May 2019 Burley filed a pro se motion for an out-of-time appeal, claiming plea counsel told him he could not appeal a conviction following a guilty plea, which frustrated his right to appeal.
The trial court denied the motion, finding Burley failed to identify an issue in the record and concluding ineffective-assistance claims cannot be resolved where the only record is a guilty-plea transcript.
Burley sought review in the Georgia Supreme Court, which accepted jurisdiction in this murder case and treated his filings to ensure appellate review.
The Supreme Court relied on Collier v. State, which requires a factual inquiry/evidentiary hearing when a defendant alleges counsel’s ineffectiveness deprived him of the right to appeal.
The Supreme Court vacated the trial court’s denial and remanded with directions to hold an evidentiary hearing to determine whether plea counsel’s performance prevented a timely appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying an out-of-time appeal without an evidentiary hearing where ineffective assistance of plea counsel is alleged	Burley: counsel’s erroneous advice that a guilty plea cannot be appealed frustrated his right to a timely appeal	State: Burley failed to identify an appealable issue in the record; ineffective-assistance claim cannot be resolved from the plea transcript alone	Vacated and remanded — trial court abused its discretion; must hold a hearing to determine if counsel’s ineffectiveness caused the failure to appeal
Whether a defendant seeking an out-of-time appeal must show he would have prevailed on a timely appeal	Burley: need only show counsel’s ineffectiveness frustrated appeal, not the merits of an appeal	State: emphasized lack of identifiable issues in the record as grounds to deny relief	Held that a defendant need not show he would have prevailed; showing counsel’s ineffectiveness can excuse the failure to timely appeal

McCarthy v. State, 301 Ga. 803 (2017) (reviews denial of an out-of-time appeal for abuse of discretion)
Collier v. State, 307 Ga. 363 (2019) (requires trial court to conduct factual inquiry/evidentiary hearing when defendant alleges counsel’s ineffectiveness deprived him of the right to appeal)
Bailey v. State, 306 Ga. 364 (2019) (a defendant must allege an excuse of constitutional magnitude for failing to file a timely appeal; counsel ineffectiveness can supply that)