Watkins v. the State
340 Ga. App. 218
| Ga. Ct. App. | 2017Background
- Watkins was convicted by a jury (Jan. 15, 2015) of possession of >1 oz. marijuana and sentenced to 10 years after the State proved four prior felonies.
- At sentencing the court told Watkins he had a right of appeal and that any appeal needed to be filed within 30 days; it also referenced habeas corpus timing but did not expressly advise about appointed appellate counsel.
- Watkins had retained trial counsel who remained of record after sentencing; counsel did not file a motion for new trial or notice of appeal and did not withdraw.
- Watkins filed pro se requests for a free trial transcript and discovery after the appeal period expired; a new attorney later filed a motion for an out-of-time appeal and a certificate of indigency was issued.
- At an evidentiary hearing trial counsel admitted he did not file an appeal and thought he remained attorney of record; neither counsel nor Watkins testified about whether counsel informed Watkins of the right to appointed appellate counsel if indigent.
- The trial court denied the out-of-time appeal, finding Watkins — not counsel — bore ultimate responsibility for failing to perfect an appeal; the Court of Appeals vacated and remanded for further factual findings.
Issues
| Issue | Plaintiff's Argument (Watkins) | Defendant's Argument (State/Trial Court) | Held |
|---|---|---|---|
| Whether failure to advise a represented defendant of right to appointed appellate counsel entitles him to an out-of-time appeal | Watkins: Neither trial counsel nor the trial court informed him he could get appointed counsel if indigent, so he was denied his right to appeal | Trial court/State: When defendant has retained counsel, burden is on defendant to alert court of indigence; no duty on court to advise; retained counsel expected to protect appellate rights | Court: No automatic entitlement. Where defendant had retained counsel, the duty to advise about appointed appellate counsel rests with counsel; the record here is silent and remand is required to determine whether counsel advised Watkins. |
| Whether trial counsel’s failure to file a timely appeal requires granting an out-of-time appeal (who bore ultimate responsibility) | Watkins: Retained counsel failed to preserve his appeal; his pro se transcript requests show desire to appeal; thus counsel’s negligence entitles him to an out-of-time appeal | Trial court/State: Trial counsel was not retained to handle an appeal and defendant made no overt act to pursue appeal — failure was Watkins’s fault | Court: Remanded for factfinding. If counsel did not inform Watkins of right to appointed counsel, grant out-of-time appeal; if counsel did advise, court must determine whether Watkins thereafter slept on his rights. |
Key Cases Cited
- Wetherington v. State, 296 Ga. 451 (2015) (out-of-time appeals remedy for denial of first appeal due to counsel’s professional deficiency)
- Smith v. State, 263 Ga. App. 414 (2003) (Georgia permits out-of-time appeals when denial of appeal results from counsel’s negligence or failure to inform defendant of appeal rights)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Seay v. State, 220 Ga. App. 418 (1996) (when defendant has retained counsel, defendant must inform court of indigence; court may presume retained counsel will protect appellate rights)
- Hill v. State, 285 Ga. App. 310 (2007) (trial counsel has duty to inform client of appellate rights, including right to appointed counsel; remand appropriate when record is silent)