Rоdney McCarthy appeals from the trial court’s order denying his request for an out-of-time appeal.
In October 1999, McCarthy, represented by retained counsel, was convicted in Quitman County of malice murder, possession of a firearm during commission of a crime, сoncealing the death of another, and tampering with evidence in connection with the death of Crystal Harewood. McCarthy requested and received a sentence review, but did not file а motion for new trial or a notice of appeal.
McCarthy took no further action in this matter until four years later, on October 17, 2004, when he wrote a letter to the judge who presided at his trial sеeking a copy of the trial transcript. The clerk of Quitman County Superior Court responded, informing McCarthy that the court reporter who took down the trial had suffered a stroke, and that the court did not have any transcripts from that time. At approximately the same time, McCarthy filed a petition for a writ of habeas corpus. The petition asserted four grounds for relief: that McCarthy’s trial аttorney was constitutionally ineffective for failing to file a notice of appeal or pursue an appeal; that the trial court erred in charging the jury on whether or not the jury could infеr an intent to kill; that the trial court erred in failing to charge the jury on voluntary manslaughter; and that McCarthy was denied due process. The special assistant attorney general assigned to McCarthy’s habeas case also requested the transcript from the clerk’s office. Several weeks later, the clerk of court filed a transcription prepared by a new court reportеr of portions of the jury trial taken down by the original reporter, including the court’s charge to the jury, the verdict, and sentencing.
The habeas court set a hearing date of March 4, 2005, and held a heаring, at which McCarthy’s trial counsel testified. McCarthy’s questioning of his trial counsel and his testimony to the court pertained entirely to whether he was informed of his right to appeal. On May 11, 2005, the habeas court issued a final order denying the writ, finding that “the gravamen of Petitioner’s claim is that he received ineffective assistance of counsel for counsel’s failure to timely file a notice of appeal.” The habeas court found that McCarthy failed to show that his trial counsel was deficient, specifically finding that both the trial court and McCarthy’s trial counsel advised him of his right to appeal and that McCarthy’s “failure to pursue a direct appeal was due solely to his own inaction.” McCarthy’s application for a certificate of probable cause to appеal to this court was denied on October 2, 2006.
Over three years later, on July 15, 2011, McCarthy again wrote to the clerk of Quitman County Superior Court seeking the trial transcript. The clerk responded that no transcripts had been received, noting that the court reporter who succeeded the original reporter had likewise retired after bеcoming ill, and suggesting that McCarthy contact his attorney. On October 3, 2011, appearing pro se, McCarthy filed a motion for an out-of-time appeal and an extraordinary motion for new trial. On February 22, 2012, McCarthy filed a motion for appointment of counsel and to proceed in forma pauperis. The trial court appointed counsel, who, on April 10, 2012, entered an appearance on McCarthy’s behalf. Over three years later, on April 30, 2015, counsel filed an amended extraordinary motion for new trial and request for an out-of-time appeal, and a brief in support. The motion and brief alleged that McCarthy was deprived of his due process rights with regard to a direct appeal of his conviction and representation by counsel. The trial court denied both motions, ruling that McCarthy’s habeas petition in 2005 and his motion for an out-of-time appeal in 2007 raised the same issues and had been decided adversely to McCarthy From this order, McCarthy appeals.
1. In McCarthy’s first enumeration of error, he asserts that the trial court erred in holding that his most recent motion for an out-of-time appeal was barred by res judicata, collateral estoppel, or issue preclusion.
The grant or denial of a motion for an out-of-time appeal is reviewed under an abuse of discretion standard.
[T]he starting point in this Court’s review of the denial оf a motion for an out-of-time appeal is the recognition that a criminal defendant has an appeal of right from a final judgment of conviction and sentence, but that such an apрeal of right has to be undertaken consistent with the laws of appellate procedure, and if it is not, the defendant may forfeit the right of appeal. Furthermore, out-of-time appeаls are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled tо assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. Whether the circumstances of a particular case warrant an out-of-time appeal is a question committed in the first instance to the trial courts.
(Citations and punctuation omitted.) Waller v. State,
Sessions v. State,
The allegations in McCarthy’s most recent request for an out-of-time appeal are all claims that were raised in earlier pleadings and resolved adversely to his position. While McCarthy asserts that his constitutional
2. McCarthy also enumerates as error the denial of his request for an out-of-time apрeal because the unavailability of the trial transcript made it impossible for him to timely file his appeal. But this claim of error was neither raised nor ruled on below, as McCarthy did not assert it in his most rеcent request for an out-of-time appeal. “Errors not raised in the trial court will not be heard on appeal. [Cit.]” Earnest v. State,
Judgment affirmed.
Notes
McCarthy does not enumerate as error the trial court’s denial, in the same order, of his extraordinary motion for new trial.
These excerpts appear to be the only portions of the takedown of McCarthy’s trial that could be located, other than several brief calendar calls.