Mcgee v. State, 304 Ga. 683

Background

Jeffrey McGee pleaded guilty under North Carolina v. Alford in 2001 to malice murder, aggravated battery on a police officer, and possession of a firearm by a convicted felon in exchange for the State withdrawing the death penalty; he stipulated an aggravating circumstance allowing life without parole.
The trial court sentenced McGee to life without parole for murder, 20 years concurrent for aggravated battery, and 5 years concurrent for possession; no timely direct appeal was taken.
Over many years McGee pursued multiple collateral challenges and motions (habeas, motions to withdraw pleas, motion for out-of-time appeal); this case represents his appeal following denial of an out-of-time appeal after remand and evidentiary hearing.
The trial court later merged the aggravated battery conviction into the murder conviction and vacated the 20-year sentence for aggravated battery; the State did not appeal that merger/resentencing.
McGee argued his trial counsel was ineffective for failing to inform him of or pursue a timely direct appeal and that his pleas were coerced and thus not knowing and voluntary.
The trial court found McGee failed to prove ineffective assistance caused his failure to appeal; McGee timely appealed that ruling.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McGee is entitled to an out-of-time direct appeal based on ineffective assistance for failing to file or advise on a direct appeal	McGee: counsel failed to inform or file a timely appeal; this prevented a direct appeal	State: McGee must show both deficient performance and prejudice (a reasonable probability an appeal would succeed); he has not shown prejudice	Denied — McGee failed to demonstrate required prejudice under Strickland; trial court's denial of out-of-time appeal affirmed
Whether sentencing error (aggravated battery should have merged with murder) entitles McGee to relief via out-of-time appeal	McGee: counsel's failure to appeal prejudiced him because aggravated battery was separate	State: Any sentencing error has been corrected by the trial court's merger and vacatur of the 20-year sentence	No prejudice shown because the merger and vacatur remedied the alleged error
Whether plea was involuntary/coerced, affecting voluntariness and meriting an appeal	McGee: counsel coerced him into accepting the plea; plea therefore not knowing and voluntary	State: Record of plea hearing shows McGee affirmed plea was knowing and voluntary; an appeal would have been meritless	Denied — no reasonable probability an appeal on coercion claim would have succeeded given the plea colloquy and trial court's finding
Whether failure to hold a hearing or other procedural rulings below warranted reversal	McGee: procedural errors (timeliness, notice) affected his ability to appeal	State: Trial court held evidentiary hearing on remand and found no ineffective assistance; re-entered order properly denies out-of-time appeal	Affirmed — trial court's re-entered order denying out-of-time appeal is upheld

Key Cases Cited

North Carolina v. Alford, 400 U.S. 25 (1970) (plea in which defendant maintains innocence but admits enough facts to allow conviction)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficiency and prejudice)
Stephens v. State, 291 Ga. 837 (2012) (defendant who pleaded guilty must show counsel was ineffective for failing to file a timely appeal and resulting prejudice)
Mims v. State, 299 Ga. 578 (2016) (applying Strickland prejudice requirement to out-of-time appeal requests)
Hickman v. State, 299 Ga. 267 (2016) (post-conviction correction of sentencing error can eliminate appellate prejudice)
Manley v. State, 287 Ga. App. 358 (2007) (same principle regarding correction of sentencing errors)
McGee v. State, 296 Ga. 353 (2014) (McGee I) (remanding for a hearing on out-of-time appeal/ineffective assistance claim)
McGee v. State, 301 Ga. 169 (2017) (McGee II) (affirming denial of untimely motions to withdraw plea)