Cruz v. State
311 Ga. App. 527
Ga. Ct. App.2011Background
- Cruz pleaded guilty nonnegotiated to aggravated child molestation, child molestation, and burglary on September 23, 2002.
- After sentencing, Cruz timely filed a pro se motion to withdraw his guilty plea.
- New counsel was appointed after the prior counsel was replaced; a hearing on the motion to withdraw occurred.
- On December 30, 2003, the trial court denied Cruz’s motion to withdraw the guilty plea.
- Almost seven years later, on November 3, 2010, Cruz filed a pro se motion for an out-of-time appeal alleging his right to a timely direct appeal from the denial of his motion to withdraw the plea was frustrated by failures to inform him of appeal rights.
- The trial court denied the out-of-time appeal, holding it was not the proper vehicle to challenge the plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to out-of-time appeal from denial of motion to withdraw plea | Cruz’s right to a timely direct appeal was frustrated by counsel and court. | Trial court argued out-of-time appeal was not proper to challenge the plea denial. | Remand for a hearing to determine responsibility for the failure to file timely appeal. |
| Who bore ultimate responsibility for failure to file timely appeal | Cruz asserts both counsel and court failed to inform him of appeal rights. | State contends no improper failure or remedy provided. | Abuse of discretion; requires factual inquiry on responsibility. |
| Whether the trial court should conduct a factual inquiry on the failure to inform of appeal rights | Inquiry necessary to determine entitlement to out-of-time appeal. | No explicit necessity stated beyond procedural posture. | Remand for a hearing to determine whether counsel or court failed to advise Cruz. |
Key Cases Cited
- Carter v. Johnson, 278 Ga. 202, 599 S.E.2d 170 (2004) (Ga. 2004) (right to direct appeal of denial of timely motion to withdraw plea)
- Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996) (Ga. 1996) (distinction between direct appeal from guilty plea and from motion to withdraw)
- Murray v. State, 265 Ga.App. 119, 592 S.E.2d 898 (2004) (Ga. App. 2004) (out-of-time appeal as remedy when rights frustrated)
- Leonard v. State, 293 Ga.App. 808, 668 S.E.2d 321 (2008) (Ga. App. 2008) (remedy depends on ultimate responsibility for failure to file timely appeal)
- Thorpe v. State, 253 Ga.App. 263, 558 S.E.2d 804 (2002) (Ga. App. 2002) (trial court may need to make factual inquiries in such contexts)
- Cobb v. State, 284 Ga. 74, 663 S.E.2d 262 (2008) (Ga. 2008) (out-of-time appeal considerations when rights are frustrated)