Kelly v. State
311 Ga. 827
Ga.2021Background
- Paula Kelly was convicted of murder and other offenses in 2015 and sentenced.
- Kelly filed a motion for new trial; it was denied on September 11, 2018. She filed a late notice of appeal and this Court dismissed it as untimely, advising she could seek an out-of-time appeal.
- The trial court granted an out-of-time appeal on March 22, 2019 and (incorrectly) informed Kelly she could file a motion for new trial or a notice of appeal within 30 days.
- Kelly (with the same appellate counsel) filed a second motion for new trial on April 22, 2019 raising claims substantially similar to those in her first motion; that second motion was denied on September 13, 2019.
- Kelly filed a notice of appeal from the second-motion denial on October 14, 2019 (timely from that denial but more than 30 days after the March 22 out-of-time grant).
- The Supreme Court of Georgia held the second motion was improper (because it did not assert previously unavailable counsel-ineffectiveness claims), so it did not toll the 30-day appeal period from the out-of-time grant; the appeal was dismissed. A special concurrence criticized the Maxwell remedy but agreed with the result.
Issues
| Issue | Kelly's Argument | State's Argument | Held |
|---|---|---|---|
| Whether a defendant granted an out-of-time appeal may file a second motion for new trial to raise claims other than newly available ineffective-assistance-of-trial-counsel claims | The out-of-time grant restored her ability to pursue post-conviction remedies, including a second motion for new trial | Second motions are barred by OCGA § 5-5-41(b) except for extraordinary motions; Maxwell’s exception should be limited to newly available ineffectiveness claims | No; second motion is authorized only to raise trial-counsel ineffectiveness claims that were previously unavailable |
| Whether a second motion for new trial filed after an out-of-time appeal tolls the 30-day appeal period from the out-of-time grant | The second motion was timely and its denial started a new 30-day appeal period | If the second motion was not authorized, it does not toll the appeal deadline | The second motion was improper and did not toll the appeal period; the notice of appeal was untimely and appeal dismissed |
| Whether Maxwell v. State should be read to allow a broad restart of post-conviction proceedings after an out-of-time appeal | Maxwell permits restarting the post-conviction process anew | Maxwell’s scope should be cabined to permit only second motions raising previously unavailable ineffectiveness claims | The Court narrows Maxwell: out-of-time appeal restores defendant only to the position held when the right to appeal was forfeited; Maxwell’s broader language disapproved to the extent inconsistent |
Key Cases Cited
- Maxwell v. State, 262 Ga. 541 (Ga. 1992) (recognized exception allowing second motion for new trial to raise trial-counsel ineffectiveness claims unavailable earlier)
- Ponder v. State, 260 Ga. 840 (Ga. 1991) (ineffective-assistance claims must be raised at earliest practicable moment; out-of-time appeal may permit filing a new trial motion)
- Rowland v. State, 264 Ga. 872 (Ga. 1995) (out-of-time appeal restores defendant to position occupied when right to appeal was lost)
- Debter v. Stephens, 297 Ga. 652 (Ga. 2015) (an improper motion for new trial does not toll the time to appeal)
- Veasley v. State, 272 Ga. 837 (Ga. 2000) (timely filing of notice of appeal is jurisdictional)
- Maddox v. State, 278 Ga. 823 (Ga. 2005) (affirming ability to file second motion for new trial to raise ineffectiveness claims after out-of-time appeal)
- Bell v. State, 259 Ga. 272 (Ga. 1989) (discussed in Maxwell as involving ineffectiveness claims appropriate for second motion)
- Hall v. Jackson, 310 Ga. 714 (Ga. 2021) (remedies for Sixth Amendment violations must neutralize constitutional taint without granting windfalls)