COOK v. THE STATE
S21A1270
In the Supreme Court of Georgia
Decided: March 15, 2022
WARREN, Justice.
When a convicted criminal defendant is unconstitutionally deprived of an appeal of right, which typically occurs because her counsel provided ineffective assistance in failing to file a timely appeal, she is entitled to an untimely or “out-of-time” appeal. In this case, we examine the difficult question of whether this Court should overrule our precedent allowing a criminal defendant who alleges that she was unconstitutionally deprived of her appeal as of right to file a motion for out-of-time appeal in the trial court, as opposed to seeking a writ of habeas corpus as an exclusive remedy. After explaining the underpinnings of our precedent and engaging in an exhaustive stare decisis analysis, we conclude that the trial court out-of-time appeal procedure is not a legally cognizable vehicle for a
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In the Habeas Corpus Act of 1967, now codified as
Nevertheless, the following year, without mention of Neal or the Habeas Corpus Act, this Court began to review appeals of trial court orders denying motions for out-of-time appeals on the merits and appeals following orders by trial courts granting out-of-time
This Court did not examine how the trial court out-of-time appeal procedure had been created and evolved; the inconsistencies that had developed between that procedure and other areas of established Georgia law; or how the procedure had become an unwitting breeding ground for legal errors made by both appellate and trial courts until we decided Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019), in 2019. Collier raised the profile of the trial court out-of-time appeal process, and given that the only way rules have been established for this judicially created procedure is by judges making them on a case-by-case basis, we have since seen additional cases that have called upon this Court to create the rules and parameters of the trial court out-of-time appeal procedure.
In Collier, and in a case that soon followed, Schoicket v. State, 312 Ga. 825 (865 SE2d 170) (2021), this Court determined that our precedent endorsing the trial court out-of-time appeal procedure as an alternative to habeas corpus had no valid legal foundation. See Collier, 307 Ga. 371-373, 376; id. at 379-382 (Peterson, J., concurring specially); Schoicket, 312 Ga. at 825. The question that follows is whether to maintain that precedent as a matter of stare decisis. We asked the parties in this case, as well as amicus curiae for major participants in the criminal justice system, to address that question. Based on their input and our extensive consideration of the issue, we conclude that stare decisis considerations do not weigh against overruling our precedent that created the trial court out-of-time
This Court has consistently held that the most important stare decisis factor is the soundness of the reasoning of the precedent at issue, and everyone involved in this case agrees that the reasoning supporting our precedent allowing motions for out-of-time appeal in trial courts—to the extent there has been any reasoning at all—is wholly unsound. There also is agreement that the precedent is not ancient and that it does not implicate traditional reliance interests.
With respect to the fourth stare decisis factor that this Court typically considers—workability—we conclude that our precedent creating the trial court out-of-time appeal procedure has a fundamental and insurmountable workability problem, because it will perpetually require this Court to fill in the details of the procedure we created. Judicial administration of habeas corpus, which everyone agrees is an appropriate procedure for seeking an out-of-time appeal when a convicted criminal defendant is unconstitutionally deprived of an appeal of right, does not require judges to make up the rules that regulate that process because the
The dissent has no real answer to this problem. It also undervalues the unsoundness of our precedеnt and overstates the ways in which the procedure we created may work better than the habeas procedure that is legally proper. In the end, the dissent seeks to overcome our customary stare decisis analysis with a focus on the “entrenchment” of our precedent—a concept we have considered before in stare decisis analyses, but never to outweigh all other stare decisis factors and perpetuate an unworkable and wholly unsound precedent, as the dissent proposes here.
For these reasons, which are explained more fully below, we conclude that principles of stare decisis do not require us to maintain
1. Procedural Posture of Cook‘s Appeal
In November 2013, Cook entered a negotiated plea of guilty to charges of felony murder and armed robbery, based on which the trial court entered a judgment of conviction and sentenced her to life in prison with the possibility of parole for felony murder and a concurrent 20-year term in prison for armed robbery.1 She did not
Should this Court reconsider whether a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel‘s alleged ineffective assistance under Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), be permitted to seek a remedy for that alleged constitutional violation by filing a motion for out-of-time appeal in the trial court, as opposed to filing, as her exclusive remedy, a petition for writ of habeas corpus?
How do considerations of stare decisis apply in this analysis?
2. Legal Background
(a) The Judicial Creation and Propagation of the Motion for Out-of-Time Appeal in Georgia Trial Courts.
In 1965, the United States Supreme Court granted certiorari to consider “whether the Fourteenth Amendment [to the United States Constitution] requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.” Case v. Nebraska, 381 U.S. 336, 337 (85 SCt 1486, 14 LE2d 422) (1965). But
Among those states was Georgia, which in 1967 enacted the Habeas Corpus Act. See Ga. L. 1967, p. 835 (codified as amended at
About two years after the enactment of Georgia‘s Habeas Corpus Act, the United States Supreme Court held, in a federal case in which counsel failed to file a notice of appeal as requested by the defendant and thereby deprived the defendant of an appeal as of
In the years that followed, this Court began to hold that convicted defendants who were unconstitutionally deprived of their right to appeal as a result of a denial of counsel or as a result of trial counsel‘s constitutionally ineffective assistance could obtain an “out-of-time appeal” as relief in Georgia habeas corpus proceedings. See Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444) (1973) (reversing the denial of habeas relief because the petitioner “was denied appellate counsel on his first appeal,” and remanding the
Accordingly, when this Court first encountered a motion for out-of-time appeal filed in a trial court (rather than in a habeas court) shortly after the Habeas Corpus Act‘s enactment, we deemed the motion invalid. In Neal, we affirmed a trial court‘s order dismissing an inmate‘s motion seeking an untimely appeal from his conviction on a guilty plea entered seven years earlier, explaining that a petition for a writ of habeas corpus was “an adequate post-conviction remedy” for “denial of the right of appeal or of the effective assistance of counsel on appeal.” 232 Ga. at 96 (citing McAuliffe, 231 Ga. at 745). In so doing, we specifically held that the
Nevertheless, a year after Neal, without acknowledging our holding in that case or the existence of the Habeas Corpus Act, this Court began to review appeals from trial court denials of motions for out-of-time appeal, as well as appeals from convictions pursuant to the grants of suсh motions by trial courts, without addressing whether the out-of-time appeal procedure in the trial court was authorized in the first place. In King, 233 Ga. at 630-631, we considered on the merits an appeal from the trial court‘s denial of a motion for out-of-time appeal, and in Furgerson, 234 Ga. at 595-596, we considered on the merits an appeal that followed the trial court‘s grant of a motion for out-of-time appeal. Notably, neither King nor Furgerson constituted precedent on the trial court out-of-time appeal procedure, because in those cases we merely considered the merits of an appeal following a trial court ruling on a motion for out-of-time appeal; we did not address whether the trial court procedure was
Then, two decades later in Rowland, this Court for the first time held squarely that an out-of-time appeal could properly be obtained in the trial court as well as in habeas corpus. Specifically, we concluded that the out-of-time appeal “granted where [counsel‘s] deficiency involves not the trial but the denial of the right to appeal . . . serves as a remedy” not only “for a habeas corpus petitioner who suffered a constitutional deprivation,” but also for “the criminal defendant who has shown ‘good and sufficient reason’ to a trial court.” Rowland, 264 Ga. at 875 (citations and punctuation omitted). We reached that conclusion without citing any applicable legal authority and without acknowledging or overruling our contrary holding in Neal. See id. at 875-876. However unreasoned it was, Rowland, rather than Neal, became the governing precedent on the trial court out-of-time appeal procedure in Georgia courts. See White v. State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) (explaining that when discord exists between older and newer
In sum: even though the General Assembly statutorily established habeas corpus as the exclusive procedure for vindicating a convicted defendant‘s constitutional rights, including the deprivation of the right to appeal, and established the contours of the procedure to seek such relief, this Court allowed and then expressly endorsed a procedure parallel to, but distinct from, habeas corpus for convicted defendants to seek vindication of alleged constitutional violations that frustrated their right to appeal. And allowing convicted defendants to do so in turn allowed them to circumvent the requirements and restrictions imposed by the Habeas Corpus Act.
Our error was significant. By judicially creating this trial court out-of-time appeal procedure—a procedure that is neither authorized by our common law6 nor established by statute—this
(b) Two Decades of Misinterpretation and More Recent Course-Correction With Respect to the Availability of Out-of-Time Appeals After Guilty Pleas.
As it turns out, our unsupported and seemingly unthinking creation of the trial court out-of-time procedural vehicle was matched by our long-standing erroneous application of the substantive standard for granting an out-of-time appeal following a conviction by guilty plea. Indeed, over the course of many years, “this Court and the Court of Appeals [ ] in hundreds of cases”
A review of those overruled cases—40 from this Court and 46 from the Court of Appeals—reveals that, for the 20-plus years that Georgia‘s appellate courts endorsed an incorrect ineffective-assistance-of-counsel standard for the analysis of motions for out-of-time appeals from guilty-plea convictions, trial courts routinely denied such motions without a hearing and appellate courts affirmed those denials in short order. Rejecting those motions was, in most cases, an unsurprising result, given that our courts were applying a standard that required a defendant seeking an out-of-time appeal from her guilty-plea conviction—a defendant who almost always was not represented by counsel—not only to allege
In 2019—the same year we decided Collier—this Court also reaffirmed that “‘habeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right.‘” Mitchum v. State, 306 Ga. 878, 883 (834 SE2d 65) (2019) (quoting State v. Smith, 276 Ga. 14, 15 (573 SE2d 64) (2002); emphasis supplied in Mitchum). In explaining our holding in Mitchum—that an extraordinary motion for new trial “was not the appropriate vehicle” for a convicted defendant to pursue alleged constitutional deprivations because “habeas corpus provided an adequate remedy“—we explained the foundational principle that “when the General Assembly in 1967 expanded the scope of matters that could be addressed through habeas corpus tо include constitutional deprivation claims, an adequate statutory remedy was created to address those constitutional claims.” Id. at 884. We concluded that the Habeas Corpus Act amounted to the “creation of a comprehensive statutory means through which constitutional (and
(d) Recent Skepticism About the Trial Court Out-of-Time Appeal Procedure.
It was not until Collier in 2019 that this Court first examined in a published opinion how the trial court out-of-time appeal procedure had been created, how it evolved, and how it had persisted as a parallel procedure for convicted defendants who could also use habeas corpus proceedings to vindicate their constitutional rights. Although we did not determine in Collier “whether the out-of-time appeal process in the trial court should be maintained,” we began expressing skepticism in that regard, recognizing that “the trial court process is certainly an exception to the general rule that a trial court‘s jurisdiction ends following a final conviction and the end of the term of court.” Collier, 307 Ga. at 376. Our review of the history of that process made apparent that the relevant precedents were conspicuously short on reasoning and authority; Collier explained that “our out-of-time appeal jurisprudence . . . focused more on the
Moreover, given the concern the State raised in Collier about “long-delayed out-of-time appeal motions filed in the trial court,” id. at 370, we acknowledged that motions for out-of-time appeal in trial courts were “not directly barred by the application of any statute of limitаtion” and considered whether the common-law doctrine of laches (also known as “prejudicial delay“) could apply to the proceedings to bar a convicted defendant from obtaining relief, id. at 375. The majority opinion concluded that the State could “raise the defense of ‘prejudicial delay’ to out-of-time appeal motions filed in the trial court,” id. at 370, and further noted that the State could argue “and the trial court [could] consider the time periods, factors, and other criteria set out in the most analogous limitation and laches provisions—those found in the Habeas Corpus Act—in determining whether the State‘s defense has merit and the
Not long after Collier, in Kelly v. State, we addressed another outgrowth of our out-of-time-appeal jurisprudence: our prior holding in Maxwell v. State, 262 Ga. 541, 542-543 (422 SE2d 543) (1992), that if an out-of-time appeal is granted in the trial court, the defendant “is permitted to file a second motion for new trial in order to raise claims of trial counsel ineffectiveness that could not have been raised in the initial motion for new trial.” Kelly, 311 Ga. at 829. Maxwell stated “that the grant of an out-of-time appeal permits
Most recently, in Schoicket, we were faced with the question of whether to implement a “logical extension” of our precedents to allow a defendant who had obtained an out-of-time appeal in the trial court also to file an otherwise-untimely motion to withdraw her guilty plea, or whether to draw the line and stop “trail-blazing” with our “invented remedy.” 312 Ga. at 825-826, 832. In declining to extend our out-of-time appeal jurisprudence to motions to withdraw guilty pleas, Justice Peterson, writing for the majority, acknowledged that “this Court ignored contrary precedent and
[a]t multiple points, we could have retracted our recognition of the out-of-time appeal procedural vehicle and once again adhered to our conclusion in Neal that the General Assembly in the Habeas Corpus Act provided an adequate remedy—and the exclusive one—for the right of appeal frustrated by the ineffective assistance of counsel.
Schoicket, 312 Ga. at 838 (Ellington, J., dissenting in part).
In recognition of these concerns, in this case we asked the parties and amici curiae for briefs and oral arguments addressing whether the procedural vehicle of a motion for out-of-time appeal in a trial court should continue to be available to a convicted defendant who alleges that she was deprived of her right to appeal because of her counsel‘s alleged ineffective assistance, as opposed to a petition for writ of habeas corpus serving as the exclusive procedural vehicle through which to seek that remedy. That question is a difficult one: given that the judicially created motion for out-of-time appeal procedure in the trial court has existed for many years now, do principles of stare decisis require that it be perpetuated? See Nalls v. State, 304 Ga. 168, 179 (815 SE2d 38) (2018) (“Before we overrule our incorrectly decided case law on this point, we must consider whether stare decisis counsels us not to.“); Ramos v. Louisiana, ___ U.S. ___, ___ (140 SCt 1390, 1412, 206 LE2d 583) (2020) (Kavanaugh, J., concurring in part) (“[A]pplying the doctrine of stare decisis, this Court ordinarily adheres to precedent, but sometimes
(a) Background Principles
Stare decisis is a “principle of policy,” State v. Jackson, 287 Ga. 646, 658 (697 SE2d 757) (2010) (citation and punctuation omitted), under which courts “generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process,” Pounds v. State, 309 Ga. 376, 382 (845 SE2d 48) (2020) (citation and punctuation omitted). This Court has a longstanding tradition of considering stare decisis when evaluating whether to overrule its precedents, and we invoked such аn analysis even before we articulated in Jackson a more consistent set of factors
“But stare decisis is not an inexorable command.” Pounds, 309 Ga. at 382 (citation and punctuation omitted). See also Woodard v. State, 296 Ga. 803, 812 (771 SE2d 362) (2015) (stare decisis is not a “mechanical formula of adherence to the latest decision“) (citation and punctuation omitted). “[I]n reconsidering our prior decisions, we must balance the importance of having the question decided against the importance of having it decided right.” Gilliam v. State, 312 Ga. 60, 62 (860 SE2d 543) (2021) (citation and punctuation omitted; emphasis in original). See also Harper, 286 Ga. at 218 (“While ‘the rule of stare decisis is a wholesome one, it should not be used to sanctify and perpetuate error. Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own
Here, because the few actual precedents we are reconsidering are cases in which this Court ignored or contravened the statutory scheme established by the Habeas Corpus Act, we apply greater
Thus, considerations of stare decisis apply with less force to Rowland and its progeny than they otherwise would to precedents rooted in statutory interpretation. That is because Rowland and its pre-Collier progeny utterly ignored the statutory text and context of the Habeas Corpus Act and indeed contradicted Neal‘s earlier and definitive holding that correctly applied the statutory scheme set forth in the Act “without engaging in any analysis of stare decisis.” Willis v. State, 304 Ga. 686, 706 (820 SE2d 640) (2018). Keeping these principles in mind, we turn to the stare decisis analysis in this case.
(b) Soundness of the Reasoning
We have consistently said that the soundness of the reasoning
As is apparent from our review of Georgia law in Division 2 (a) above, the separate procedure that this Court created for obtaining an out-of-time appeal in the trial court has neither a statutory nor a common-law basis. The initial cases in which we considered the merits of an appeal following a trial court ruling on a motion for an out-of-time appeal, King and Furgerson, did not acknowledge the existence of the Habeas Corpus Act, let alone distinguish between motions for out-of-time appeals sought in a trial court and similar filings made in a habeas court. Rowland, on the other hand, acknowledged that the defendant in that case could seek relief in habeas, but offered no analysis of the import of that point, and was otherwise devoid of reasoning showing why a trial court out-of-time-
[I]t is unsurprising that the Court would expend the judicial time and resources to write an extensive analysis of stare decisis mostly in cases in which the Court decides to depart from the usual rule that we adhere to our precedents, and it is equally unsurprising that we would say little about stare decisis in the numerous cases in which we stand by our precedents. Indeed, there are plenty of recent cases in which we have adhered to and applied our statutory precedents without any discussion of—or any express reference to—the doctrine of stare decisis, even when a party has asked us to revisit those precedents. In a perfect world in which judicial time and resources were not so limited, perhaps it would be better to write about stare decisis whenever a court unremarkably adheres to its precedents. But that is not reality for very busy courts like ours.
Id. at 62 n.15 (majority opinion) (citations omitted).
(c) Age of Precedent, Traditional Reliance Interests, and “Entrenchment”
Two other familiar stare decisis factors—age and reliance interests—are nominally distinct, but can also be intertwined. This makes sense: the older a precedent is, the more opportunity it has to become part of the legal landscape on which the public, the bench and bar, and others rely. But cf., e.g., Frett v. State Farm Employee Workers’ Compensation, 309 Ga. 44, 60 (844 SE2d 749) (2020) (pointing out, in the course of overruling an 85-year-old precedent, the opposite phenomenon and noting that we had “never cited [the states that “the basis for the creation of an out-of-time appeal is unwieldy, contradictory, and unsound, as it creates two paths to relief, contradicts statute, and does not lead to finality in judgment.” And even GACDL concedes that “[t]he out-of-time appeal is a jerry-rigged remedy, illegitimate but practical,” and that “[t]here can be little doubt at this point that [this] Court was without authority to craft the out-of-time-appeal [procedure] in the first instance.” We note that in her supplemental brief, Cook appears to focus her stare-decisis analysis exclusively on Schoicket instead of on the earlier out-of-time-appeal precedent disсussed above in Division 2 (a), and as a result does not offer her views on that precedent.
precedent] for its specific holding . . . and ha[d] not cited [the precedent] for any proposition at all in the past 60 years“) (emphasis
Rarely, if ever, is the age of a precedent itself dispositive in a stare decisis analysis, and that is so here. See Southall v. State, 300 Ga. 462, 468 (796 SE2d 261) (2017) (“[W]ithout more, that we have been wrong for many years is no reason to persist in the error.“) (citation and punctuation omitted). As discussed above in Division 2 (a), the first actual precedent approving and applying the trial court out-of-time appeal procedure was Rowland, a 27-year-old case that we can hardly call “ancient.” Willis, 304 Ga. at 705 (citation and punctuation omitted). We have overruled statutory precedents of comparable, and sometimes older, ages. See, e.g., Duke, 306 Ga. at 184 (overruling 19-year-old precedent); City of Cumming v. Flowers, 300 Ga. 820, 832 (846 SE2d 48) (2020) (overruling 21-year-old precedent); Woodard, 296 Ga. at 812 (overruling 24-year-old precedent); State v. Burns, 306 Ga. 117, 123-124 (829 SE2d 367) (2019) (overruling 30-year-old precedent); Jackson, 287 Ga. at 659
When it comes to reliance interests, we have traditionally looked to whether the precedent at issue affects property or contract issues, and whether it establishes a substantive right; reliance interests are at their apex when they involve these types of interests. See, e.g., Savage v. State, 297 Ga. 627, 641-642 (774 SE2d 624) (2015) (“[S]tare decisis is especially important where judicial decisions create substantial reliance interests, as is more common with rulings involving contract and property rights.“) (citing cases). See also Olevik, 302 Ga. at 245 (“Substantial reliance interests are an important consideration for precedents involving contract and property rights, ‘where parties may have acted in conformance with existing legal rules in order to conduct transactions.‘“) (citation omitted). Compare Jackson, 287 Ga. at 658 (explaining that the precedent at issue “affects no property or contract issues and
No such reliance interests are at stake here. We have repeatedly held that precedents—like the ones at issue here—relating to procedures, including post-conviction procedures, create no substantive rights “in which anyone has a significant reliance interest.” Duke, 306 Ga. at 184-185 (precedent that “disregard[ed]” the statutory requirement for a certificate of immediate review before pursuing an interlocutory appeal did “not involve substantial reliance interests“). See also, e.g., Pounds, 309 Ga. at 382 (“[T]he issues involved are ones of appellate procedure, not . . . substantive rights in which anyone has a significant reliance interest.“) (citation and punctuation omitted); Willis, 304 Ga. at 706 (“As to the reliance issues potentially at stake, we note that the holdings in [our prior precedents] are procedural in nature and establish no substantive rights.“) (citation and punctuation omitted). Moreover, Rowland and its progeny did not establish any substantive rights in the first instance; they merely created an alternative procedural vehicle—
The dissent seizes on the concept of entrenchment and focuses almost myopically on it in its stare decisis analysis. Characterizing
We cannot say, however, that entrenchment of the trial court out-of-time-appeal procedure in Georgia weighs so heavily in the stare decisis analysis that we should retain our erroneous precedents. First, the actual number of precedents on the trial court out-of-time appeal procedure in Georgia—i.e., cases holding that a motion for an out-of-time appeal in the trial court was a proper procedure such that the case needs to be overruled if the trial court out-of-time appeal procedure were eliminated—are few. That limited universe of cases includes Rowland—our first real precedent addressing and approving the trial court out-of-time appeal
We acknowledge the value—at least in a case like this one—in
Nor is the second entrenchment-related point the dissent makes dispositive: that when our out-of-time appeal precedents are applied, “it often makes a substantial difference,” because when such a motion is granted “it permits an appeal that would otherwise be barred without the years-long delay of habeas.” To be sure, when
The dissent‘s stronger claim—which we address more fully below as part of our workability analysis—is that motions for out-of-time appeals in trial courts are quicker and more efficient than habeas corpus proceedings. That may well be true in many cases. But habeas corpus is the procedure the General Assembly has established to provide the remedy for the unconstitutional deprivation of the right to appeal; this Court has determined that “habeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right,” Mitchum, 306 Ga. at 883 (citation and punctuation omitted; emphasis in original); and even if the alternate procedural vehicle
(d) Workability
That brings us to workability. As the dissent notes and as we discuss below, some aspects of the trial court out-of-time appeal procedure we created may be more workable or even preferable (at least in the view of some Justices) to the statutorily authorized habeas corpus process. But there is a fundamental—and in our view, insurmountable—workability problem with our precedents: there is no end in sight to our Court being asked to fill in the details of the trial court out-of-time appeal procedure we created. See Harper, 286 Ga. at 217-218 (overruling prior precedent in part because of workability problems stemming from the lack of “rules or precedents guiding individuals in the filing of, or courts in their consideration of,” the post-appeal procedure that our Court had created in a prior case).
Administration of the Habeas Corpus Act, by contrast, does not
Yet no cоrresponding requirements for motions for out-of-time appeals in trial courts are clearly applicable—at least not from the common law, statutes, or court rules, which do not establish or recognize such motions. The only rules that govern the operation of
For example, because no deadline or statute of limitation expressly restricts a convicted defendant‘s ability to file a motion for out-of-time appeal in a trial court, in Collier the State argued that the Court should “abolish the practice of allowing defendants to file a motion for an out-of-time appeal in the trial court” to prevent defendants from filing motions for out-of-time appeal years or
The questions did not stop after Collier. If anything, Collier begged even more questions, which Schoicket illustrates: the defendant in that case asked us to decide whether we would
We had held in Collier that whether a defendant “seeks an out-of-time appeal from a final judgment of conviction entered following a trial or following a guilty plea” did not matter, and we overruled cases that held otherwise. See Collier, 307 Ga. at 366-367. Nevertheless, in Schoicket we decided that the very same distinction—whether a defendant was adjudicated guilty by trial versus by entering a plea—actually did matter, because we did not allow the defendant in that case, who had been granted an out-of-time appeal after judgment of conviction was entered on her guilty
These examples of the issues we have faced point to another aspect of this workability problem: the lines we have drawn in our trial court out-of-time appeal precedents are often based on considerations of policy rather than law. The line we drew in Schoicket—where we acknowledged that the defendant‘s requested extension of our out-of-time appeal precedents was logical and anticipated by the Court, but nonetheless rejected it to avoid “further complicat[ing] our post-conviction jurisprudence,” 312 Ga. at 826—amply illustrates this concern. Indeed, we have already admitted that “our inventions” in this area “have never purported to be even-handed.” Id. at 832 (emphasizing that “a motion for out-of-
In this regard, we have already identified two additional issues that arise in the trial court out-of-time appeal procedure—how claims of ineffective assistance of counsel may be presented, and when defendants are legally entitled to appointed counsel—that will likely require this Court at some point to provide answers about
As the dissent points out, in some cases in which a convicted defendant‘s lawyer misses an appellate filing deadline inadvertently and notices the oversight not long thereafter, it appears that the lawyer files a motion for out-of-time appeal in the trial court admitting his error, the State concedes that the motion should be granted, and the trial court grants the motion. See, e.g., Waller v. State, 311 Ga. 517, 518 n.1 (858 SE2d 683) (2021) (“Appellant filed a motion for out-of-time appeal through trial counsel.“); Swan v. State, 276 Ga. App. 827, 829 (625 SE2d 97) (2005) (“Trial counsel filed a motion for an out-of-time appeal . . . .“); Brown v. State, 199 Ga. App. 856, 856 (406 SE2d 516) (1991) (“The record shows defendant‘s trial counsel filed a motion for out-of-time appeal . . . .“). Asserting a claim of ineffective assistance in that way may be a relatively fast and efficient means of getting the appellate process moving again. But that process appears to conflict with this Court‘s precedent holding that a lawyer cannot assert his own ineffective
And there‘s more. When questions arise about the propriety of counsel raising an ineffective assistance claim, the trial court can attempt to ensure that a new lawyer—one who does not have a conflict of interest that precludes him from asserting his own ineffectiveness—is appointed to represent the defendant. See, e.g., Garland, 283 Ga. at 203. But that creates yet another issue in the out-of-time appeal context, because our precedent squarely holds that a motion for out-of-time appeal is a proceeding as to which a defendant is not entitled to the appointment of counsel. See, e.g., Davis v. State, 310 Ga. 547, 548 (852 SE2d 517) (2020) (“‘[B]ecause a motion for an out-of-time appeal cannot be construed as part of a criminal defendant‘s first appeal of right, [the defendant] was not
As with the other examples of unanswered questions mentioned above, we do not know with certainty what the resolution of these issues would be if presented properly in a case before this Court. But it seems likely that at some point, based on our precedent, a trial court will dismiss a motion for out-of-time appeal in which a lawyer asserts his own ineffectiveness, or uphold a public defender‘s decision not to appoint new counsel for a convicted defendant whose trial counsel was constitutionally ineffective in failing to file a notice of appeal; the defendant will appeal that ruling; and this Court will have to decide what to do. We could apply our precedent as it would seem to apply in other contexts, and thereby undermine many of the benefits of the trial court out-of-time-appeal procedure on which the dissent relies heavily, or we could endorse additional deviations from precedent to maintain what we consider to be preferable policy results for the procedure we
The entire Court agrees that we erred, and that we overstepped our limited constitutional role, by creating the trial court out-of-time appeal procedure. But we cannot simply wash our hands of that error; the need to determine the details of the procedure we created will require us (and trial judges) to perpetually overstep our judicial bounds. That makes our precedent unworkable, as this Court has repeatedly held in similar situations. See Duke, 306 Ga. at 186 n.4 (that the precedent at issue was “in need of refining only emphasizes the unworkable nature of [the precedent] as it was decided“); Harper, 286 Ga. at 217-218 (prior precedent that created the motion to vacate a criminal conviction, which was “a new post-appeal procedure for challenging a criminal conviction, . . . proved unworkable inasmuch as Georgia law is silent as to the procedural framework and rules applicable to this newly created remedy,” especially given that “[u]nlike the myriad rules governing previously
The dissent pushes back, contending that we should not focus only on the workability of the precedents we are considering overruling, and that we should instead compare the workability of the current, erroneous precedents with the workability of the alternative: here, the statutory habeas scheme that will function as the exclusive procedure for convicted defendants to assert the denial of constitutional rights if the trial court out-of-time appeal procedure is eliminated.21
In that vein, the dissent compares the current out-of-time appeal system to a world in which only habeas exists and argues that the current out-of-time appeal system is more workable. These arguments, many of which GACDL also highlights, can be organized into three primary claims: (1) that the current out-of-time appeal system is more efficient for resolving a criminal defendant‘s claim that ineffective assistance of trial counsel resulted in a loss of the defendant‘s appeal as of right; (2) it is more likely under the current system that an indigent defendant will have access to counsel when filing the defendant‘s claim of ineffective assistance of counsel; and (3) eliminating the out-of-time appeal procedure will result in a significant shift in workload among government entities—especially with respect to district attorney offices, the Attorney General‘s office, public defenders, and judges. None of those arguments is
With respect to its first set of arguments, the dissent contends that the out-of-time appeal procedure is more efficient because, among other reasons, the same judge who presided over the defendant‘s trial can decide the motion for out-of-time appeal, which in turn avoids having to transfer the record between a trial court and a habeas court and also reduces travel costs for everyone involved. These practical observations may be correct, but the differences between the Habeas Corpus Act and our out-of-time appeal procedural vehicle reflect policy choices the General Assembly made in enacting the former. To the extent the Habeas Corpus Act can or should be improved to make post-conviction proceedings more efficient, or a trial court out-of-time appeal process for certain cases should be established, the General Assembly can make those changes legislatively. See Duke, 306 Ga. at 186 (recognizing that if “the General Assembly determines that the established framework does not adequately safeguard the interests of litigants in particular classes of cases, it is for that body to change
The dissent similarly argues that the trial court out-of-time appeal procedure is faster than habeas—particularly when counsel has missed a jurisdictional filing deadline by only a few days or weeks, the parties involved in the case are willing to consent to an out-of-time appeal, and the defendant is able to proceed to her motion for new trial or appeal as of right expeditiously.22 That, too, may be true, although—as discussed above—it appears to be inconsistent with our precedent on counsel raising her own alleged ineffectiveness. But putting aside the anomaly of trial courts permitting counsel to raise their own ineffective assistance against
The dissent also contends that defendants often have more “access to counsel” in the trial court out-of-time appeal procedure than they do in habeas. But that concern is largely undermined by the dissent‘s acknowledgement that indigent defendants do not have a right to counsel in either scenario. See Davis, 310 Ga. at 548 (“‘Because a motion for an out-of-time appeal cannot be construed as part of a criminal defendant‘s first appeal of right, defendant was not entitled to the assistance of appointed counsel.‘“) (quoting Pierce v. State, 289 Ga. 893, 894 (717 SE2d 202) (2011)) (punctuation omitted); Gibson v. Turpin, 270 Ga. 855, 857 (513 SE2d 186) (1999) (“It is well settled that there is no federal or state constitutional
Finally, the dissent expresses concern that eliminating the alternative trial court out-of-time appeal procedure and relying
We are certainly mindful of the resources required for government entities—including courts—to get their work done. But resource considerations such as these must be directed to the General Assembly, whose constitutional duty includes appropriating funds for the operations of our State‘s government. See
The dissent greatly underestimates the unworkability of the current trial court out-of-time-appeal procedure while overvaluing its own speculation about the disruption to the legal system that will ensue if motions for out-of-time appeals in trial courts are eliminated. The workability factor therefore weighs in favor of
(e) We Overrule our Precedents and Eliminate the Judicially Created Motion for Out-of-Time Appeal Procedure in Trial Courts.
In light of the analysis conducted above, we conclude that stare decisis does not preclude overruling our precedents that created or endorsed the trial court out-of-time appeal procedural vehicle. Accordingly, we overrule Rowland v. State, 264 Ga. 872, 874-875 (452 SE2d 756) (1995), and any other decisions that approved the judicially created motion for out-of-time appeal in trial courts, to the extent that they endorsed this procedure. We also disapprove King v. State, 233 Ga. 630, 630 (212 SE2d 807) (1975), Furgerson v. State, 234 Ga. 594, 595 (216 SE2d 845) (1975), and any other decisions that have allowed out-of-time appeal claims to be litigated in trial courts without addressing the propriety of that procedure. We note that in overruling and disapproving these cases, we do not undo what has been done with respect to out-of-time appeals that already have been granted where the ensuing appeal has concluded. And that
4. Our Holding Applies to this Case, Cases in the Appellate “Pipeline,” and Future Cases.
Amicus curiae GACDL сontends that if this Court concludes it must eliminate out-of-time appeal motions in trial courts, it should announce its intention to do so “well ahead of the change” and “set a date certain after which no motion for out-of-time appeal may be filed.” In short, GACDL asks us to apply any new rule we announce prospectively.24 But we decline that proposal because prospective application would run afoul of the “pipeline” approach Georgia has long followed for the application of new rules of criminal procedure to criminal cases that are pending on direct review or not yet final.
In Taylor v. State, 262 Ga. 584 (422 SE2d 430) (1992), this Court held that
[i]n order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, . . . it [is] . . . appropriate to adopt the “pipeline” approach, that is, that a new [state] rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.
Id. at 586.25 We have consistently recognized or followed this holding regardless of whether the judicial decision setting forth a new state rule of criminal procedure was based on a statute or on decisional law. See, e.g., Mobley v. State, 265 Ga. 292, 294 (455 SE2d 61) (1995); Smith v. State, 268 Ga. 196, 201 (486 SE2d 819) (1997); Smith v. State, 268 Ga. 860, 861 & n.10 (494 SE2d 322) (1998); Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001); Green v. State, 279 Ga. 455, 456 (614 SE2d 751) (2005); Stubbs, 308 Ga. at
Neither Cook nor GACDL argues that we should overrule Taylor and its progeny, let alone engages in a stare decisis analysis of that precedent. Indeed, neither Cook nor GACDL argues that our holding in this case is somehow not the sort of judicial decision that is governed by Taylor or offers a compelling reason to reconsider Taylor or its progeny. See Collins v. State, 312 Ga. 727, 735 (864 SE2d 85) (2021) (appellant “does not offer any compelling reason to abandon precedent that has been a settled part of our law for 35 years, is straightforward in its application, and [is] not obviously unsound“). We therefore decline the invitation to apply today‘s holding only prospectively. Instead, pending and future motions for
5. Conclusion
We are faced with two choices in this case: We can overrule our trial court out-of-time appeal precedents, return to the habeas corpus process the General Assembly established for seeking post-conviction relief of this sort, and—to the extent that procedure is problematic—allow the General Assembly to fix any flaws by statute. Or we can retain our erroneous trial court out-of-time appeal precedents, maintain an alternative procedure for obtaining post-conviction relief for this one type of constitutional claim, and perpetuate our roles of judges-as-legislators who must continue to
We hold that there was and is no legal authority for motions for out-of-time appeal in trial courts and that the out-of-time appeal procedure allowed in King and Furgerson, approved in Rowland, and followed in other cases, is not a legally cognizable vehicle for a convicted defendant to seek relief from alleged constitutional violations. Our holding applies to this case and to all cases that are currently on direct review or otherwise not yet final.
Accordingly, the trial court was without jurisdiction to decide Cook‘s motion for out-of-time appeal in this case, and “because the trial court‘s order plainly shows that it denied” the motion “on the merits,” Bonner v. State, 310 Ga. 426, 428 (851 SE2d 578) (2020), the trial court‘s order must be vacated and the case remanded to the trial court with direction that the motion be dismissed. See McDaniel v. State, 311 Ga. 367, 373 (857 SE2d 479) (2021) (“[W]hen a trial court is presented with a motion that it lacks jurisdiction to
Judgment vacated and case remanded with direction. All the Justices concur, except for Boggs, P.J., who concurs specially in Division 3 (c) and (d), and Peterson, Bethel, and Ellington, JJ., who dissent.
LAGRUA, Justice, concurring.
I write separately to emphasize that this matter presents a challenging question of law with a fairly straightforward answer. The question is whether a criminal defendant, who has alleged that she has been deprived of an appeal of right due to ineffective assistance of counsel, may seek an out-of-time appeal as her remedy in the trial court instead of pursuing her remedy through habeas. The answer is no.
The majority opinion and the dissent agree that this Court‘s creation of the out-of-time appeal procedural vehicle in the trial court was unsupported by sound reasoning or relevant authority.27 Where we part ways is on the question of whether stare decisis
Under the doctrine of stare decisis, “courts generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Pounds v. State, 309 Ga. 376, 382 (3) (846 SE2d 48) (2020) (citation and punctuation omitted). “Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow preсedent. Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.” Woodard v. State, 296 Ga. 803, 812 (3) (b) (771 SE2d 362) (2015) (citation and punctuation omitted). As explained in the majority opinion, the stare decisis factors include: (1) the soundness of our precedents, which we all agree are entirely unsound; (2) the age of the precedents, which are not especially old; (3) the reliance interests involved, including that our precedents
As this Court initially held correctly in Neal v. State, 232 Ga. 96 (205 SE2d 284) (1974), in the Habeas Corpus Act of 1967, the General Assembly established habeas corpus as the procedure for a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel‘s alleged ineffective assistance. And “it is not the job of judges to usurp that [legislative] power . . . by rewriting laws enacted by the people‘s democratically elected representatives.” Barrow v. Raffensperger, 308 Ga. 660, 692 (842 SE2d 884) (2020) (Melton, C. J., concurring). Accordingly, I agree with the majority opinion that Cook‘s remedy, if any, lies in habeas
I am authorized to state that Justice McMillian joins in this concurrence.
I agree with most of what is said in the majority opinion and concur fully in the judgment and in Divisions 1, 2, 3 (a), (b), and (e), 4, and 5. I do not necessarily agree with all that is said in Division 3 (c) and 3 (d), however, so I concur specially in those parts of the opinion.
PETERSON, Justice, dissenting.
The majority today overrules decades of nonconstitutional precedent recognizing a trial court power that is entrenched within our system, it does so without a clear sense of the likely consequences, and it does so while overreading some of our precedents in a way that would prohibit the General Assembly from fixing at least some adverse consequences. If stare decisis means anything, it should preserve longstanding and oft-applied nonconstitutional precedent at least until we know the effect of overruling. I respectfully dissent from the majority‘s refusal to wait for that day.
As an initial matter, I should note that I agree with much of the majority‘s opinion. I agree that our approval of the motion for out-of-time appeal happened without analysis or the articulation of a рroper legal basis. I don‘t dispute that we held in Neal v. State, 232 Ga. 96 (205 SE2d 284) (1974), that the habeas statute provided the exclusive remedy for claims that a right to appeal was frustrated
But concluding that our decades-old precedent was misguided is not sufficient to reject it. Given the importance of stare decisis, I
1. Stare decisis is a question of judicial policy, not an
Whether stare decisis should preserve a legally incorrect precedent is a question of policy, not of law. See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“[S]tare decisis is not an inexorable command, nor a mechanical formula of adherence to the latest decision. Stare decisis is instead a principle of policy.” (citation and punctuation omitted)). That policy question weighs the value of having an issue decided against the value of deciding it right. Almost always, questions of policy are for the other two branches of government. But stare decisis is that rare kind of policy that — since the very beginning of our Court — we have consistently understood to be within the judicial power to apply. See, e.g., Leary v. Durham, 4 Ga. 593, 601 (1848) (observing in case involving property rights that “where a rule of law has been firmly established for half a century[] at least, though originally, perhaps, on mistaken or erroneous principles, and no greater evil is to be apprehended from an adherence to it, than may be expected from a departure from it, that stare decisis ought to be our motto“).
Understanding stare decisis as a matter of judicial policy, our primary precedent setting the framework for deciding questions of stare decisis does not limit us to an exhaustive list of factors to consider. Rather, we have framed this as a balancing of considerations in which we consider factors “such as” — not limited to — “the age of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.” Jackson, 287 Ga. at 658 (5). The United States
Apart from the four factors identified in Jackson, we have identified other considerations that are quite germane to the question before us in this case. We have made clear that stare decisis applies with greater force to statutory precedents than to constitutional precedents, as it is more difficult for the legislature to undo a constitutional decision. Compare, e.g., Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998) (“Even those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.” (citation and punctuation omitted)), with Olevik v. State, 302 Ga. 228, 245 (2) (c) (iv) (806 SE2d 505) (2017) (“[S]tare decisis carries less weight when our prior precedent involved the interpretation of the Constitution, which is more difficult than statutory interpretation for the legislative process to correct. This doesn‘t mean that we disregard stare decisis altogether, though; what it actually means is that the first stare decisis factor (soundness of reasoning) becomes even more critical. The more wrong a prior precedent got the Constitution, the less room there is for the other factors to preserve it.” (citation omitted)).
Another important consideration in determining whether to retain prior precedent is the extent to which it has become entrenched in the legal system — meaning, in a narrow sense, that its relevant holding has been applied frequеntly. See, e.g., Frett v. State Farm Employee Workers’ Compensation, 309 Ga. 44, 60 (3) (c) (844 SE2d 749) (2020) (considering the extent to which a precedent is “entrenched” in our jurisprudence by examining how often and how recently it has been cited, particularly for its relevant holdings). Although this concept of entrenchment can include the age of the precedent, the extent to which others have relied on it, and its
2. In my view, stare decisis counsels that we retain our
Here, we are dealing with the sort of nonconstitutional precedent to which stare decisis applies more strongly. The precedent at issue here is of the sort that the General Assembly might easily alter or eliminate, and thus eliminating that precedent ourselves should give us greater pause. Although the majority opinion posits that stare decisis applies with less force here because Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995), and its pre-Collier progeny ignored the relevant statutory text, I‘ve already explained that Neal did not engage with the text of the habeas statute, either.
As noted above, I don‘t dispute Neal‘s holding. But the majority opinion‘s focus on the soundness of the reasoning (or lack thereof) in the decisions that subsequently deviated from that holding, while important, is only the beginning of the application of stare decisis. “[S]tare decisis does not even begin to apply until we doubt the correctness of a previous precedent.” Frett, 309 Ga. at 65 (Peterson, J., dissenting). If we believe a precedent to be correct, we simply
(a) The motion for out-of-time appeal plays a significant role in our legal system.
Turning to those other considerations, they include the extent to which the precedent has become entrenched in our legal system. And here, nearly 50 years after it first appeared in our case law, the motion for out-of-time appeal has become deeply entrenched, at least in the senses that (1) it is regularly applied in a significant number of cases and (2) when it is applied, it often makes a substantial difference — when the motion is granted, it permits an appeal that would otherwise be barred without the years-long delay of habeas. Thus, although I suggested otherwise in Schoicket, the briefing and argument in this case has convinced me that jettisoning our precedent here could be enormously disruptive.
Undoubtedly, our precedent allowing out-of-time appeals
The majority opinion first responds by dismissing the significance of these cases on the basis that they are not “precedent” for stare decisis purposes because they did not decide whether the existence of a motion for out-of-time appeal was appropriate. But that misunderstands the nature of precedent for these purposes. At least by the time of our 1995 decision in Rowland, our precedent definitively established that motions for out-of-time appeal are
(b) Shifting all out-of-time appeals to habeas will have significant negative effects.
The majority‘s argument that the long delays of habeas are not meaningful because some motions for out-of-time appeal are filed years or decades later is unavailing. Long-belated motions are a problem (although, as the majority would presumably agree, not one beyond the power of the General Assembly to end). But they seem relatively rare; the majority cites only a handful. Most of the motions that the majority consigns to the often years-long delays of habeas are far more frequently filed shortly after deadlines are missed. In the vast majority of the 14 cases we considered last year from the
Particularly in those sorts of cases, where the only issue is whether counsel failed to file timely, allowing post-conviction proceedings to be resolved by granting a motion for out-of-time appeal in the trial court is much more efficient than requiring a convicted defendant to turn to the much lengthier habeas process. Granting a motion for out-of-time appeal allows the claims to be resolved promptly by the judge who presided over the trial. It avoids the need for an inmate to grapple with the procedural hurdles of
The majority responds that the strictures of habeas “reflect policy choices the General Assembly made.” But some of the most important strictures were not in place when we created the out-of-time appeal vehicle. It was not until 2004 that the General Assembly imposed a limitations period for seeking habeas corpus relief from
Moreover, our precedent reveals anecdotally that the State often agrees that the trial court should grant a motion for out-of-time appeal, limiting the amount of litigation required to resolve such an issue. But it‘s one thing for the trial prosecutor — familiar with the case and defense counsel — to agree that ineffective assistance likely occurred and should be remedied. It‘s another thing altogether for the State‘s habeas counsel — likely unfamiliar with
And finally, our prior approach often had the effect of affording indigent defendants access to counsel for their motion for out-of-time appeal,37 something that will be — at best — less certain if we suddenly require inmates to turn to habeas. See Gibson v. Turpin, 270 Ga. 855, 860-61 (1) (513 SE2d 186) (1999).38 Moreover, they won‘t be able to bring only their claim regarding a frustrated appeal without seriously risking waiving all other habeas-eligible claims.
(c) Neither lawyer ethical rules nor our decisions interpreting them are cause to abandon our precedent allowing motions for out-of-time appeals.
In Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985), we denied an application for interlocutory appeal from a trial court order disqualifying a lawyer. See id. at 558. The only analysis in the opinion was the trial court order, which we quoted in full without
The trial court reasoned that the habeas petition sought to
Sixteen years later, the State Bar proposed, and we approved, a wholesale set of new rules modeled after the ABA model rules. The old rule language quoted by the trial court largely no longer exists in our current rules (which were again significantly revised in 2018). The current binding rules on lawyers serving as witnesses generally prohibit it, but expressly allow it where “the testimony relates to an uncontested issue.”
Over two decades after Castell and six years after the adoption of the new rules, we cited Castell as the sole authority for the proposition that “[b]ecause a lawyer may not ethically present a claim that he/she provided a client with ineffective assistance of counsel, a claim of ineffective assistance of trial counsel cannot be pursued unless trial counsel is no longer representing the convicted
Hood and Garland are the only decisions of ours the majority cites41 for the proposition that trial counsel are ethically prohibited from raising a claim of ineffective assistance of counsel in a motion for out-of-time appeal, even when uncontested. They do not stand for that proposition. The only analysis on this point that any of these cases included was the quotation of the trial court‘s order in Castell, which applied now-superseded rules regarding lawyers serving as witnesses.42 Now, the current rules generally prohibit lawyers from
In short, neither the Rules nor our precedent interpreting them prohibit trial counsel from seeking an out-of-time appeal when the facts underlying the claim to which the lawyer would have to testify are uncontested (and which, if the trial lawyer is still counsel, naturally will be sought soon after the deadline has passed). Allowing this kind of motion is the key value of the system that presently exists relative to the system that will exist following the majority‘s opinion.
3. The majority‘s workability concerns do not warrant overruling our precedent.
The majority‘s response to these concerns is to observe that the General Assembly could rectify any of these possible consequences of tossing aside the current system. And the majority takes the position that because we created the current situation, it is our responsibility to fix it. But this is always true when we‘ve gotten a case wrong. The majority‘s approach places a perpetual thumb on the scale in favor of overturning precedent, which is backwards. The idea that it doesn‘t matter how much we break the legal system because the General Assembly can glue the pieces back together is simply not an argument compatible with stare decisis. Moreover, all of the problems with the existing system also can be remedied by
To be sure, our invention of the motion for out-of-time appeal has led to problems, only some of which are identified at length in my concurrence in Collier and our decision in Schoicket (and, of course, the majority‘s decision today). But we have only a binary choice of retaining or overruling precedent; stare decisis allows us to keep a wrong precedent, not to improve on it. And this binary choice is a blunt instrument for solving the problems we have recognized. The General Assembly, on the other hand, has far more options. For instance, it might limit the filing of such motions to a six-month period after the deadline for the filing of a notice of appeal. Or it might tie the ability to file such a motion to the appointment of new counsel for appeal, requiring counsel to file the motion within, say, 60 days of appointment.
And to the extent that parties ask us to expand those procedures, such tinkering is not ours to do. We made clear in Schoicket our intention to cease inventing new procedural mechanisms in this area. See 312 Ga. at 832 (1). But for the reasons outlined above, neither should we jettison the mechanisms that have existed ever since we erroneously invented them decades ago. We should leave the next move — if any — for the General Assembly.
I am authorized to state that Justice Bethel and Justice Ellington join in this dissent.