Harvey v. State, 312 Ga. 263

In August 2004, then-15-year-old Holly Harvey and a co-defendant murdered her grandparents; Harvey later pleaded guilty to two counts of malice murder.
On April 14, 2005, Harvey entered a negotiated guilty plea and was sentenced to two consecutive life terms; other counts were nol prossed.
Harvey did not immediately appeal; in 2012 she filed a pro se motion for an out-of-time appeal and later, in 2020, filed a superseding motion through counsel.
At the hearing, plea counsel testified that she explained post-plea procedures, the narrow window and burden for withdrawing a plea, and that withdrawing would likely expose Harvey to a trial and greater punishment; Harvey never asked counsel to file an appeal or to withdraw the plea at that time.
The trial court denied the out-of-time appeal motion in February 2021, finding Harvey had not reasonably demonstrated to counsel an interest in appealing; Harvey appealed to the Georgia Supreme Court.
The Georgia Supreme Court affirmed, holding Harvey failed to show plea counsel’s performance was constitutionally deficient in advising about appellate rights and thus was not entitled to an out-of-time appeal.

Issue	Harvey's Argument	State's Argument	Held
Whether plea counsel rendered ineffective assistance by failing to advise or to file a timely appeal after the guilty plea	Counsel failed to adequately advise Harvey of appellate rights; but for that deficiency she would have timely appealed	Counsel consulted adequately; Harvey never reasonably demonstrated an interest in appealing and counsel’s advice about withdrawing the plea was appropriate	Court held counsel did not perform deficiently; no entitlement to an out-of-time appeal
Whether the Sixth Amendment requires recognizing a right to file an out-of-term motion to withdraw a plea when counsel’s deficiency prevents review	Harvey urged a constitutional rule creating such a right where counsel’s deficiency blocked review	State argued no such new rule was necessary and that counsel was not deficient here	Court declined to reach/create the new rule because it found no deficient performance by counsel

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance standard)
Roe v. Flores-Ortega, 528 U.S. 470 (duty to consult about appeal and prejudice showing when counsel fails to consult)
Ringold v. State, 304 Ga. 875, 823 S.E.2d 342 (Georgia application of Flores-Ortega consultation duty)
Collier v. State, 307 Ga. 363, 834 S.E.2d 769 (out-of-time appeal entitlement when counsel’s deficiency deprived defendant of appeal)
Davis v. State, 310 Ga. 547, 852 S.E.2d 517 (standard of review for out-of-time appeal motions and Strickland framework)
McDaniel v. State, 857 S.E.2d 479 (Georgia case finding no duty to consult where defendant did not express desire to appeal)