*1 appel- Cardillo, Simon, M. for Simon, Booth, & William Cook lant. appellees. II, for Hatfield, J. Mark
Leon A. Wilson cases). (two THE STATE S97A0139, S97A0140. GRANTHAM 219) (481 SE2d Justice. Hunstein, Henry felony Lamar murder of indicted for the Grantham robbery separately at the trial on the indicted for an armed and he was Jeffcoat Riverdale Cinema. consolidated for
The indictments were of a scheme to carried out in furtherance that the crimes were basis activity. proceeds ring operate of the criminal and share the a crime charges mentally pled guilty in June 1995. ill to both but felony imprisonment murder and life for He sentenced to robbery. July 20-year armed sentence for the concurrent appeal in each case filed se motions Grantham alleging involuntary. pleas court denied the The trial that his were September order and Grantham 4, 1996 in a consolidated motions on timely pro se notice of filed a the issue of out-of-time cases have addressed
Two recent two-part analysis proper test, but consists is not a that the and held State, See Morrow v. determinations. of a series of threshold State, (1996). appeal appropriate a direct An out-of-time in counsel. But ineffective assistance of taken due to was not grounds of ineffective to be available for an out-of-time necessarily had the have defendant must judgment of con- from a A direct to file a direct if the available entered on a viction and sentence on the record. reference to facts issue on ability based on to decide Smith deciding existing factor in record thus becomes pled availability defendant has when the of an out-of-time guilty. not reached of counsel are Issues requirement reference unless the facts on the record is met. guilty pleas Appellant in does not contend erroneously record, that the determine, on the voluntary pursuant pleas Rule 33.7. Court to Uniform were hearing Rather, he maintains factors outside of the the the affected voluntariness of his that he so-called was threatened having prosecutor proceed under and was duress to trial with attorney. circumstances, an undesirable Under these is not mandated issues because the which raise cannot to facts be resolved contained the record. *2 The issues of the voluntariness of Grantham’s and the effec- post- of his tiveness plea hearing. counsel be (467 570) (1996) State, Caine v. Ga. 421 266 SE2d (direct appeal not available when defendant did not contend the that procedure failed follow established his guilty plea, involuntary but claimed that his and his coun- ineffective). Accordingly, correctly sel it follows that the trial appellant the for an denied motion out-of-time and that must pursue corpus remedy. State, habeas action as his v. Morrow Judgment except concur, Benham, J., All the Justices C. affirmed. Fletcher, Sears, J., P. J. and who dissent. dissenting.
Sears, Justice, respectfully I dissent. Grantham the denial of his request appeal. Grantham, if he appeal, is allowed an out-of-time raise as issue the volun- alleged prosecutor. tariness of his due to coercion the law, Under the case be would appeal entitled to out-of-time (1) timely if direct was not filed due to the inef- (2) fective resolved of if and the on can be “including the facts the transcript guilty plea hearing.”1 majority rejects the of his The Grant- ham’s it reasons neither that of these determinations post-plea hearing.2 can be made the benefit aof first effectiveness, criteria the not, or of counsel disposition this Court has held that the of a motion to file an out- appeal requires of-time of finder fact to determine whether the responsibility ultimate rests majority opinion, for the failure to file contrary or with counsel.3 to the particular
that issue is intended to be resolved post-plea hearing, trial court in the context of a on majority’s ruling the motion for out-of-time Under the that capable being the issue of counsel’s effectiveness of (470 436) (1996). State, Ga. 687 SE2d Hopper, v. State, App. SE2d Bell See Evans 342) (1985) App. Cannon J.). (Carley, failure to to to show that the ever be able record, no movant will on ineptitude. timely appeal due to his counsel’s file a (1) lawyer showing, his either a movant must show make this rights hence he could not inform him of his did not rights informed of his them,4 he was or exercise lawyer rights, but his to exercise those he wanted told his Rules, however, do Uniform file an nonetheless not pleas, accepting guilty to inform courts, when trial general rights record, and as on the of their defendants rights attorneys practice, clients of their do not inform their so) (or majority opinion states record, either. Yet the fail to do on timely appeal file a the failure to the issue of whether that unless was due record, the assistance can be resolved to ineffective incapable out-of-time-appeal this issue is must be denied. Because any possibil- majority precluded being has showing. making ity this precedent support for the no in relevant
Furthermore, there is majority’s a trial court not reach issues assertion that the issue unless it first determines of counsel reference to to be raised Hopper, contrary, dis- in Bell v. this Court’s record. To the *3 appellate opposite.5 fact, for an court to In above, indicates cussed effectively denying efficiently a an from an order review initially determine the trial court motion whether trate precluded a direct To illus- ineffectiveness counsel’s — majority opin- suppose court, a trial accordance sought raised ion, that an issue to be rules the motion to file such record, from the and denies decided
cannot be
appealed.
appellate
If the
will then be
That decision
erroneous, it cannot
the trial court’s decision
determines that
any dispositive
the issue of the effectiveness
make
fact, as it must be.
the finder of
not been resolved
counsel has
appellate
a
remand the matter for
court would have to
Thus, the
be taken
effectiveness, and another
would
determination
efficiency.6
judicial
hardly
ruling.
a model of
This is
from that
right
appeal a criminal conviction is
client of his
who does not inform his
A
Bell, supra.
ineffective.
5
majority opinion in State,8 I Morrow v. dissent. I am authorized to state that Chief Justice Benham and Presid- ing join Justice Fletcher in this dissent.
Christopher Grantham, T. se. Attorney, Keller, Robert E. District Sticker, A. Assistant Clifford Attorney, Attorney District Bowers, appellee. Michael J. General, for S97Y0342. IN THE MATTER OF DALE A. ALLISON, JR. Per curiam. disciplinary proceeding This questions: raises two main First, advantage two-year whether the State Bar take of the tolling provision four-year of the discipli- otherwise statute of limitation in *4 nary (a),1 matters, potential Bar Rule 4-222 where the victims or vic- gives short shrift to these constitutional mandates. provides, pertinent Bar Rule 4-222 part: (a) proceeding IV, No Chapter brought under Part shall be unless a Memoran- dum of Georgia Grievance has been headquarters received at State Bar of or insti- Investigative tuted years Panel within four after the commission of the Provided, however, act. during any period time, this limitation shall be tolled not