FINAL COPY
S19A0297. BAILEY v. THE STATE.
BLACKWELL, Justice.
Phillip Bailey appeals from the denial of his motion for leave to
pursue an out-of-time appeal. Pursuant to a plea agreement, Bailey
pleaded guilty in 2007 to the murder of Jess Sharp and an
aggravated assault upon Lamar Sharp, and Bailey was sentenced to
imprisonment for life for the murder and a concurrent term of
imprisonment for 20 years for the aggravated assault. He did not
bring a timely appeal from the judgment of conviction entered upon
his plea.
More than eleven years later, Bailey filed a motion for leave to
pursue an out-of-time appeal. In his motion, Bailey alleged, among
other things, that he was denied the effective assistance of counsel
in connection with his plea and that his plea was involuntary. Bailey
did not allege, however, that he was denied the effective assistance
of counsel in connection with his failure to bring a timely appeal.
Nor did he allege that his failure to bring a timely appeal was
attributable to any other error of constitutional magnitude. The trial
court denied his motion without an evidentiary hearing.
The trial court was right to deny the motion. As we have
explained,
before being entitled to an out-of-time appeal, a defendant
must allege and prove an excuse of constitutional
magnitude for failing to file a timely direct appeal, which
usually is done by showing that the delay was caused by
his trial counsel’s ineffective assistance in providing
advice about or acting upon an appeal.
Deloney v. State,
) (2017).
Although Bailey alleged in his motion that he was denied the
effective assistance of counsel in other respects, he did not allege
that he was denied the effective assistance of counsel in connection
with his failure to bring a timely appeal. Accordingly, he is not
entitled to an out-of-time appeal. See Grace v. State,
) (2014) (motion for out-of-time appeal was
properly denied where defendant “did not allege that ineffective
assistance of counsel was the cause of his failure to file a timely
direct appeal from the judgment entered on his guilty plea”). See
also McMullen v. State,
) (2013)
(same).
Judgment affirmed. All the Justices concur.
Decided May 20, 2019 – Reconsideration dismissed July 1,
2019.
Murder. Cobb Superior Court, Before Judge Childs.
Phillip Ray Bailey, pro se.
D. Victor Reynolds, District Attorney, John R. Edwards,
Benjamin M. First, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Katherine D. Emerson, Assistant Attorney General, for
appellee.
