Harvey v. StateHarvey v. State
Holly Harvey entered a negotiated guilty plea to two counts of malice murder for the killing of her grandparents, Carl and Sarah Collier.1 While serving consecutive life sentences, Harvey sought to challenge that plea through a motion for an out-of-time appeal,
which the trial court denied. Harvey appeals from the denial of that
1. At the hearing on the entry of her guilty plea, Harvey testified about the following. At the time of the August 2, 2004 murders, Harvey, who was 15, lived with her grandparents, the Colliers, and was in a relationship with 16-year-old Sandy Ketchum.2 On the day of the murders, Harvey and Ketchum decided to kill the Colliers and take their truck. They tested several knives together inside the residence to determine if they were sharp enough to stab someone. Harvey testified that there were several reasons she wanted to kill her grandparents. First, she explained that she wanted to kill her grandmother because her grandmother had called her a “slut” and would often tell her that the only reason Harvey
lived there was so that she did not “go to [DFCS].”
On the afternoon of the murders, Harvey and Ketchum smoked marijuana so that the odor would lure Harvey‘s grandparents to Harvey‘s downstairs bedroom to investigate. When her grandparents entered the room, Harvey retrieved a knife concealed in her pants and repeatedly stabbed her grandmother in the back. When Mrs. Collier screamed, Mr. Collier turned around, saw what was occurring, and punched Harvey in the face. Mr. Collier attempted to pin Harvey down, but Harvey stabbed him in the chest. Harvey called to Ketchum to help. Mr. Collier retreated up the stairs and Harvey handed Ketchum the knife. Fearing her grandfather was going to call 911, Harvey chased him up the stairs. Harvey testified that when she saw her grandfather in the kitchen with a telephone in his hand, she pulled the cord out of the wall, took the knife Mr. Collier had grabbed to defend himself out of his hand, and
Meanwhile, downstairs, Ketchum had stabbed Mrs. Collier in the heart, the back of the head, and the arm. Harvey and Ketchum then stole the Colliers’ truck, took the murder weapons, and drove to Tybee Island, where the police arrested them the following day. Harvey entered a plea of guilty to two counts of malice murder, was sentenced to consecutive life terms of imprisonment, and began serving her sentences. Around 15 years later, Harvey filed a motion for an out-of-time appeal through new counsel.
Plea counsel testified as follows at the hearing on Harvey‘s motion. Harvey asked plea counsel where she would be taken after she entered the guilty plea, and counsel explained what would happen. Plea counsel also told Harvey about the possibility of withdrawing her plea. Plea counsel explained to Harvey that there was a limited time to withdraw the plea and that she would need to
In denying Harvey‘s motion for an out-of-time appeal, the trial court found, among other things, that Harvey did not establish that she had reasonably demonstrated to plea counsel that she was interested in appealing. This appeal followed.
2. Harvey first argues that the trial court erred in rejecting her
A trial court‘s ruling on a motion to file an out-of-time appeal is reviewed for an abuse of discretion. See Davis v. State, 310 Ga. 547, 548 n.4 (2) (852 SE2d 517) (2020). A defendant “is entitled to an out-of-time appeal if [her] counsel‘s constitutionally deficient performance deprived [her] of an appeal of right that [s]he otherwise would have pursued.” Collier v. State, 307 Ga. 363, 364 (1) (834 SE2d 769) (2019). Where, as here,
a defendant alleges that [s]he was deprived of an appeal of right that [s]he otherwise would have pursued by [her] counsel‘s constitutionally deficient performance in providing advice about or acting upon such appeal, that alleged violation is reviewed under the familiar standard of Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). With respect to the first component of the Strickland standard, the defendant must show that [her] appeal of right was lost as a consequence of [her] counsel‘s deficient performance, and the trial court must make a factual inquiry into those allegations. With
respect to the second component of the Strickland standard, the defendant is required to demonstrate only that there is a reasonable probability that, but for counsel‘s deficient performance, [s]he would have timely appealed.
(Citation and punctuation omitted.) Davis, 310 Ga. at 549 (2).
To determine whether plea counsel was constitutionally ineffective for failing to file a timely notice of appeal, the first question that must be answered is whether counsel “consulted” with the defendant about an appeal – that is, whether counsel “advis[ed] the defendant about the advantages and disadvantages of taking an appeal, and ma[de] a reasonable effort to discover the defendant‘s wishes.” If counsel adequately consulted with the defendant, counsel performed deficiently only if he failed “to follow the defendant‘s express instructions with respect to an appeal.”
Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019) (quoting Roe v. Flores-Ortega, 528 U. S. 470, 478 (II) (A) (120 SCt 1029, 145 LE2d 985) (2000)). “However, if counsel did not consult with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel‘s failure to consult with the defendant itself constituted deficient performance.” (Citation and punctuation omitted.) Ringold, 304 Ga. at 879.
Counsel has a constitutionally imposed duty to consult
(Citation and punctuation omitted.) Id.
Here, Harvey does not raise any argument that a duty to consult existed because “a rational defendant would want to appeal.” Id. Instead, Harvey argues that plea counsel had a constitutional duty to consult with her about an appeal because she demonstrated an interest in appealing through her post-plea questions to counsel and because she asked plea counsel whether she should move to withdraw the plea. However, under the facts of this case, we disagree that this exchange created a duty to consult beyond the scope of counsel‘s responses to Harvey‘s questions.
Even assuming plea counsel failed to properly consult with
3. Harvey next argues that the Sixth Amendment to the United States Constitution requires this Court to create a right to file an out-of-term motion to withdraw a guilty plea when counsel‘s deficient performance has frustrated her ability to seek review of that plea. However, because we hold that Harvey‘s plea counsel did not perform deficiently in advising Harvey regarding her appellate rights, we need not address this argument.
Judgment affirmed. All the Justices concur, except Colvin, J., not participating.