Grace v. State, 295 Ga. 657

Background

In 1991 Grace and accomplices robbed a Thomas County grocery; one employee was killed and another seriously wounded. Grace later shot two police officers in Grady County.
Grace was indicted in Thomas County for malice murder, aggravated battery and assault, and armed robbery; the State initially sought the death penalty.
After procedural disputes and interlocutory appeals, Grace entered a negotiated guilty plea in November 1993 (represented by two attorneys) in exchange for the State withdrawing the death-penalty notice. He received consecutive life terms plus 40 years.
Nearly 20 years later (Oct. 2013) Grace filed a pro se motion for an out-of-time direct appeal; the trial court denied the motion and Grace appealed to the Supreme Court of Georgia.
Grace alleged ineffective assistance of trial counsel but only as to investigation and the plea; he did not allege counsel caused his failure to file a timely direct appeal.
The Supreme Court affirmed denial of the out-of-time appeal: (1) Grace failed to allege counsel’s deficient performance caused the missed appeal, and (2) the claims he sought to raise on appeal either were waived by the plea, lacked merit on the existing record, or required expansion of the record and must be pursued via habeas corpus.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Grace is entitled to an out-of-time appeal based on ineffective assistance of counsel	Counsel was ineffective in investigating the case and in advising/handling the guilty plea, warranting an out-of-time appeal	Out-of-time appeals require alleging counsel’s deficiency caused the lack of a timely first appeal; Grace did not allege causal link	Denied — Grace did not allege counsel’s deficient performance caused his failure to file a timely direct appeal; motion properly denied
Whether the indictment failed to allege venue	Indictment insufficiently alleged venue	Indictment charged crime in “the County aforesaid” (Thomas County); that suffices absent venue as an essential element	Rejected — venue allegation was adequate
Whether the indictment failed to identify the firearm used	Indictment did not adequately identify the “certain firearm”	Form objection waived by guilty plea	Rejected — claim forfeited by plea
Whether counsel failed to advise Grace of essential elements or coerced waiver of indictment	Counsel coerced waiver and failed to advise elements of murder and armed robbery	Transcript shows plea hearing advised Grace on the record of essential elements; waiver was only of formal arraignment	Rejected — record shows Grace was advised; no deficient performance or prejudice shown
Whether counsel failed to investigate (supporting ineffective-assistance claim)	Counsel did not properly investigate the crimes	Claims needing development of the record cannot support an out-of-time appeal and should be pursued via habeas corpus	Not resolved on direct appeal — such claims require expanded record/habeas relief and cannot support out-of-time appeal

Key Cases Cited

Grace v. State, 262 Ga. 485 (1992) (interim review holding that standing mute as instructed does not waive future ineffective-assistance claims when court affords opportunity to object)
State v. Grace, 263 Ga. 220 (1993) (reversing trial court’s quash of indictment on grand-jury reconvening grounds)
Stephens v. State, 291 Ga. 837 (2012) (denial of motion for out-of-time appeal is directly appealable when no direct appeal was previously taken)
McMullen v. State, 292 Ga. 355 (2013) (affirming denial of out-of-time appeal where defendant did not allege counsel caused failure to file timely appeal)
Kemp v. State, 292 Ga. 795 (2013) (same principle)
Martin v. State, 277 Ga. 227 (2003) (form objections to indictment waived by guilty plea)
State v. Hammons, 252 Ga. App. 226 (2001) (same on waiver by plea)