Moore v. State, 308 Ga. 312

Background

In 2001 Moore was tried for two murders and related charges; after the guilt phase he pled guilty pursuant to a negotiated plea and received life without parole on one murder count plus consecutive sentences on seven other counts. Moore alleges he expressly told trial counsel he wanted to appeal, but no direct appeal was filed.
Post-conviction counsel filed a motion in 2011 challenging one life-without-parole sentence under Roper v. Simmons because Moore was 17 at the time of the crimes; the Georgia Supreme Court held that sentence void and remanded for resentencing.
Moore was resentenced in May 2014; in October 2014 he filed a pro se motion for an out-of-time direct appeal alleging counsel’s deficient performance deprived him of an appeal.
The trial court summarily denied Moore’s 2014 motion in November 2018 without a hearing or factual inquiry and without a State response; Moore timely filed a notice of appeal.
In February 2019 the trial court sua sponte dismissed Moore’s notice of appeal as not appealable and moot under OCGA § 5-6-48(b)(2)-(3); the Georgia Supreme Court reversed that dismissal and vacated the denial of the out-of-time motion because the trial court failed to make the required factual inquiry into Moore’s ineffectiveness claim, and remanded for merits consideration.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court may dismiss a timely notice of appeal under OCGA § 5-6-48(b)	Moore: trial court lacked authority to dismiss; appeal should go to appellate court	State/trial court: dismissal proper because judgment not appealable and questions moot	Court: trial courts may not dismiss appeals for § 5-6-48(b) reasons; reversed the dismissal
Whether the trial court abused its discretion by denying an out-of-time appeal without a factual inquiry into counsel’s performance	Moore: counsel was constitutionally deficient and he asked counsel to appeal; trial court must inquire	State: (focused in appellate brief on waiver/mootness) argued sentencing proceedings cured issues	Court: abused discretion by failing to make required factual inquiry under Strickland/Collier; vacated denial and remanded
Whether resentencing that corrected a void sentence renders Moore’s claim of lost direct appeal moot	Moore: he never directly appealed any convictions and still entitled to out-of-time appeal	State/trial court: resentencing addressed the sentence; original sentence issues are moot	Court: resentencing of one sentence does not resolve whether Moore was deprived of a direct appeal; remand for factual inquiry
Whether an appeal waiver in a plea forecloses an out-of-time appeal based on counsel’s ineffectiveness	Moore: counsel’s failure to appeal entitles him to an out-of-time appeal despite any waiver	State: argues appellate waiver bars review	Court: noted Garza v. Idaho—an ineffective-assistance deprivation of appeal can entitle defendant to an appeal despite waivers; waiver argument should be addressed first in trial court

Key Cases Cited

Jones v. Peach Trader Inc., 302 Ga. 504 (trial courts should not dismiss appeals; appellate court determines jurisdiction)
Collier v. State, 307 Ga. 363 (out-of-time appeals analyzed under Strickland; trial court must make factual inquiry into lost-appeal claim)
Strickland v. Washington, 466 U.S. 668 (established counsel-performance and prejudice standard for ineffective-assistance claims)
Roper v. Simmons, 543 U.S. 551 (juveniles may not be sentenced to death; ground for voiding certain sentences)
Moore v. State, 293 Ga. 705 (Georgia Supreme Court decision holding certain life-without-parole sentence void for juvenile offender)
Williams v. State, 287 Ga. 192 (distinguishing challenges to convictions from challenges to sentences)
Ringold v. State, 304 Ga. 875 (counsel’s failure to follow defendant’s express instructions about appeal can be deficient)
Garza v. Idaho, 139 S. Ct. 738 (an appeal waiver does not bar a remedy where counsel’s deficient performance deprived defendant of an appeal)