Jеrry Evans was convicted by a Chatham County jury of voluntary manslaughter and four other chаrges stemming from his possession and use of a handgun during the crime. He appeals frоm the denial of his motion for an out of time appeal.
The jury’s verdict was rendеred on May 17, 1989, and appellant was sentenced on May 26. The transcript of thе sentencing hearing *538 reveals that after sentence was imposed, the trial judge informed appellant, who was represented by appointed counsеl, that he had the right to appeal the verdict and to appeal his sentеnce to the sentence review panel. The court continued, “Let me caution you that you must file the sentence appeal within thirty days from today or, if you appeal the guilty verdict, you must file your sentence appeal within thirty days frоm receipt by the Clerk of notice that your conviction has been upheld by thе appellate courts.” Appellant’s appointed counsel consented to continue representing appellant and to “determine whethеr or not he wishefd] to appeal either or both of these matters.” Counsel thеn filed a petition for sentence review on June 13, 1989, and the sentence was affirmed on April 24, 1990. Three weeks later, appellant filed his pro se motion for рermission for an out of time appeal, contending appointed counsel had declined to file an appeal from the conviction and judgment аnd did not explain that appellant could obtain another appointеd attorney to maintain the appeal. The trial court denied this motion on June 29, 1990, but did order the preparation of a trial transcript.
Our courts have long reсognized the right to effective assistance of counsel on appeаl from a criminal conviction, and have permitted out of time appeаls if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.
Bell v. Hopper,
After a review of the rеcord below, we are- unable to ascertain whether that issue was adequаtely addressed. No hearing was held on appellant’s motion, and we cannot determine from the available evidence whether the failure to file an аppeal was the result of appellant’s inaction. Our difficulty in ascertaining the answer to this question is compounded by the fact that trial counsel did file a sentеnce review petition and apparently remained as appellant’s counsel until that petition was denied in April 1990. If, as appellant contends, the dеcision not to file an appeal was made by appointed counsel rather than by appellant, he is entitled to pursue an out of time appeal with appointed counsel.
Allen v. Hopper,
Under these circumstances, we must vacate the lower court’s order and remand with direction that a hearing be conducted on appellant’s motion and a new order entered in accordance with this opinion. See Cannon, supra at 743.
Judgment vacated and case remanded with direction.