Lee v. State

¶1dissenting.

¶2I respectfully dissent. I do not concur in Division 1 because I discern nothing in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), which obligates this court to use the procedure it has followed. Yet it is the understanding of Evittswhich the majority of this court has, which is the genesis and catalyst for the change in our Rule 14. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985). Rule 14 authorizes and does not prohibit the dismissal of criminal appeals. Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989), are both bottomed on the interpretation of Evitts.

¶3These four appeals, brought by ten defendants, emanate from convictions following jury trials on three consecutive days in April 1990, and sentences which were modified post-appeal so as to result in fines and statutory penalties and 12-month sentences suspended on conditions which included payment of the fines. The defendants were convicted of criminal trespass, OCGA § 16-7-21, and Chris Keys was also convicted of refusal to comply with a lawful order, OCGA § 40-6-2. All except Benson were involved in incidents occurring on December 21, 1989, and January 3, 1990. Benson participated in the one in January.

¶4After notices of appeal were filed (with certificates of service signed by someone designated as “next friend”), defendants sought trial transcripts and record preparation at county expense. The motions were granted after “the Court conducted extensive hearings.” Transcripts and records were duly prepared, and the appeals were docketed in this court on September 5, 1991.

¶5No action was taken by any of these defendants to perfect their appeals.

¶6After the time for filing enumerations of error and briefs had passed, orders were entered under Rules 14 (a), 23 and 27 (b) extending the time and defendants were expressly warned that failure to comply “may result in dismissal of the appeal[s] and may subject the offenders] to contempt.” The orders were sent to the respective addresses of defendants in Georgia, California, North Carolina, and New York.

¶7The extensions were sua sponte except in the appeal of Joseph Wright, Kim Wright, and Domingo. Domingo alone moved for an extension on September 25 based on the claim that he had not received the transcript. Although the transcript in their case had been filed in *490the trial court on August 30, 1991, this court granted an extension. The times for filing have expired months ago, and no enumerations of error, briefs, or word has been received from any of the defendants.

¶8Even when enumerations of error are filed, if they are “not supported by argument, reference to the transcript, or citation of authority,” they are deemed abandoned. Grier v. State, 198 Ga. App. 840, 842 (2) (403 SE2d 857) (1991). See also, e.g., Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990); Moss v. State, 196 Ga. App. 81, 84 (5) (395 SE2d 363) (1990) (pro se appeal); Burns v. State, 196 Ga. App. 732, 733 (397 SE2d 19) (1990); Mitchell v. State, 195 Ga. App. 255, 257 (fn. 1) (393 SE2d 274) (1990); Saunders v. State, 195 Ga. App. 810, 811 (2) (395 SE2d 53) (1990). Not only are there not any arguments or citations of authority giving reasons why a certain trial court ruling is enumerated as error, we do not even have any enumerations of error. “ ‘[T]his court is without jurisdiction to consider [what is not enumerated as error].’ ” Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 747 (3) (360 SE2d 70) (1987), quoting from Riggins v. State, 128 Ga. App. 478 (197 SE2d 154) (1973).

¶9It is a long established and firm rule that, as repeated in Taylor v. State, 197 Ga. App. 678, 680 (2) (399 SE2d 213) (1990), “[t]he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Here the defendants have not even alleged error.

¶10Defendants are not entitled to have their convictions reviewed as a matter of right by an appellate court in this State, nor under the Federal Constitution. Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990). By their conduct and their inaction, they have failed to pursue their appeals and they must be dismissed because they have been abandoned and because we have no jurisdiction in the absence of enumerations of error as required by OCGA § 5-6-40.

¶11Allen v. State, supra; Conyers v. State, supra; DeBroux v. State, supra; and any other like decisions should be overruled. There are no “merits of the case” to decide.

¶12That being so, I do not reach the issues decided in Divisions 2 and 3.

¶13dissenting.

¶14For the reasons expressed herein, I would dismiss these appeals without prejudice and remand them to the trial court to determine whether they have been abandoned.

¶15Since these appellants elected to proceed pro se, and there is no claim that any of them was deprived of the right to be effectively represented by counsel on appeal, neither the holding nor the spirit of *491Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), requires that they be heard on the merits.1 In Evitts v. Lucey the U. S. Supreme Court found that the due process clause guarantees a criminal defendant effective assistance of counsel on the first appeal as of right. Even though there is no federal or state constitutional right to an appeal (see Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990)), where the State elects to create an appellate system as an integral part of adjudicating a defendant’s guilt or innocence, the procedures used in the appeals process must comply with the demands of due process. Evitts v. Lucey, supra at 393. A criminal defendant’s constitutional right to receive effective assistance of counsel is an essential means to ensuring that appeals procedures comport with due process by providing defendants with legal representation necessary to afford them adequate and effective access to the first appeal as of right. Pennsyluania v. Finley, 481 U. S. 551, 558 (107 SC 1990, 95 LE2d 539) (1987); Evitts v. Lucey, supra. Under Evitts v. Lucey, the State may not cut off a defendant’s access to the appeals system because his lawyer provided ineffective assistance by failing to follow mandatory appellate rules. However, Evitts v. Lucey, clearly did not require that an appellate court ignore violation of its procedures, and attempt to decide every case on the merits regardless of its posture before the court. “If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client’s due process rights.” Evitts v. Lucey, supra at 399 (discussing remedies which preserve fair access to the appeals system, which may be made available to a defendant whose appeal was not considered on the merits because of ineffective appellate counsel). Since the present appeals were brought pro se, and raise no issue of ineffective assistance by appellate counsel, the due process discussion in Evitts v. Lucey has no direct application, although it has had a persuasive influence on this Court’s consideration of procedurally defaulted pro se appeals.

¶16This Court’s holding in Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989) dealt with procedural defaults caused by ineffective assistance of counsel, and has no direct application to these pro se appeals. Nevertheless, to the extent Allencontinued a policy that this Court attempt to render a decision on the merits of all procedurally defaulted cases regardless of their posture before the Court, it should be disapproved. As I read Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985), both of which declined to dismiss pro se appeals after the *492appellants failed to file enumerations of error and briefs, neither case holds that Evitts v. Lucey required that this Court render a decision on the merits. Rather, both cases appear to rely on Evitts v. Lucey as persuasive authority for the decision to “make every effort to render a decision on the merits of the case.” Conyers supra at 591. In my view, the reliance of Conyersand DeBrouxon the persuasive authority of Evitts v. Lucey and other cases based on the same rationale, demonstrates a misplaced concern that defendants who err while representing themselves on appeal should not have their appeals dismissed, while we refuse to dismiss appeals for the same errors committed by appellate counsel on behalf of their clients. The difference is that where “the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State ...” which may not conduct the appeals process without ensuring the defendant has effective legal assistance. See Murray v. Carrier, 477 U. S. 478, 488 (106 SC 2639, 91 LE2d 397) (1986). No such State responsibility is imputed where a defendant, properly advised of the right to appellate counsel, elects to proceed pro se. For those represented by ineffective counsel, a procedural default has due process implications flowing from the denial of meaningful access to the appeals process. For those who waive the right to be represented by an attorney and elect to proceed pro se, the same procedural default has no such due process implications. Accordingly, I believe the holdings in Conyersand DeBrouxrequiring that this Court “make every effort to render a decision on the merits” in such pro se cases are based on the erroneous assumption that the same due process concerns are present in procedurally defaulted pro se cases that exist in cases where the appellant is represented by an attorney. Such an assumption cannot be justified by reliance on Evitts v. Lucey or any other authority cited. By requiring an effort to reach the merits in all such cases, both Conyersand DeBrouxsimply assume that due process will be violated by a dismissal, and foreclose this Court’s exercise of discretion under Court of Appeals Rule 14. For these reasons Conyersand DeBrouxshould be overruled.

¶17In my view, for this Court to adopt the position that it will attempt to render an immediate decision on the merits of every procedurally defaulted case, whether the appellant is pro se or represented by counsel, is unworkable. As Evitts v. Lucey made clear in the context of a represented appellant, the task is not to necessarily decide every case on the merits, but to ensure that every criminal defendant is provided due process of law by having adequate and effective access to the state created appeals system. When an appellant has failed to provide this Court with any enumerations of error or brief, to consider the merits we are forced in effect to assume the role of counsel for the appellant, and undertake the burdensome task of reviewing *493the entire record for possible error. The same dilemma created by this policy was rejected by the Georgia Supreme Court in Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729) (1985), when the Court finally concluded it would no longer accept Anders’ motions which forced it to review the record, without assistance of counsel, for any colorable claim of error, implicitly recognizing that “an appellate court looking at a cold record” is no substitute for effective assistance of counsel. Id. at 710.

¶18This Court laid the basis for a workable policy with respect to these defaulted appeals in Rule 14 which gives the Court the discretion to consider their disposition on a case by case basis. The Court should now undertake a consistently applied policy of exercising its discretion under Rule 14 with respect to both pro se and represented cases. Where no enumerations of error or brief has been filed despite court order to do so, if the Court is able to determine, as a matter of fact, that the appeal has been abandoned, it should be dismissed. If there is some reason to believe that the appeal has not been abandoned and should be considered on the merits, the appeal should be dismissed without prejudice and remanded to the trial court with instructions to conduct a hearing to determine whether or not the appeal has been abandoned. If the appeal has not been abandoned, the trial court should enter an order so finding, and renew instructions, if necessary, on the right to counsel, appointed counsel, or the right to proceed pro se, and make appropriate appointments or replacements of counsel. If the trial court determines the defendant has abandoned the appeal, an order should be entered making this determination, supported by the court’s findings of fact. In the former situation, the defendant should be given 30 days from entry of the trial court’s order in which to file an out-of-time appeal with respect to any of the trial court’s determinations on remand, and any claim of error which could have been made in the original appeal.2 This suggested remand procedure is consistent with the concern expressed in Evitts v. Lucey that if the appellate court chooses not to immediately consider the procedurally defaulted appeal on the merits, some alternative procedure be provided to ensure fair access to the appeals system.

¶19Accordingly, I would dismiss these appeals, and remand the cases pursuant to the above.