inline">307 Ga. 168

FINAL COPY

                S19A0597. RICKS v. THE STATE.


     PETERSON, Justice.

     This appeal has a complicated procedural history. Ultimately,

it is an appeal of an order on several motions that were either

nullities, untimely, or some combination of both. Either way, the

trial court should have dismissed them. But because the trial court

decided the motions on the merits instead, we vacate the trial court’s

order and remand with instructions to dismiss.

     On May 4, 2012, while represented by counsel, Ashleigh Elaine

Ricks pleaded guilty to felony murder in Baldwin County. That same

day, the trial court entered a conviction and sentence of life

imprisonment. Later that month, during the same term of court,

Ricks filed two pro se motions, as well as a letter to the trial court,

arguing that her plea was involuntary and that her plea counsel was

ineffective; one motion asked “to appeal” the trial court’s sentencing

order and the other asked the trial court to “reduce her charge to
involuntary manslaughter and sentence her accordin[g]ly.” In June

2012, Ricks filed a motion asking the court to give her permission to

proceed pro se and to allow her plea counsel to withdraw. The next

term of court in Baldwin County Superior Court began on the second

Monday in July — July 9, 2012. See OCGA § 15-6-3 (28) (A) (fixing

the starting dates for the terms of the Superior Court in Baldwin

County as the “[s]econd Monday in January, April, July, and

October”). In August 2012, Ricks filed pro se a motion for new trial

— asserting ineffective assistance of counsel — and a motion for

change of venue.

     The record contains no written order on Ricks’s motion seeking

permission for her plea counsel to withdraw and to proceed pro se.

But new counsel (“motion-to-withdraw counsel”) represented Ricks

at an October 5, 2012 hearing on her pro se motions. Motion-to-

withdraw counsel did not file a new or amended motion seeking

withdrawal of Ricks’s plea, but cross-examined plea counsel at the

hearing and argued that Ricks should be allowed to withdraw her

guilty plea.

                                 2
      In its order filed on November 20, 2012, the trial court said it

was treating “a series of filings” by Ricks as requests to withdraw

her plea and for a reduction of sentence; the trial court denied those

motions on the merits. Motion-to-withdraw counsel filed a notice of

appeal of the trial court’s ruling, and Ricks is pursuing this appeal

through new appellate counsel.1 Ricks makes several arguments

before this Court as to why the trial court erred in denying her

request to withdraw her plea.2 But we do not reach those claims of

error.

         To the extent Ricks’s May 2012 pro se filings were a request to


      1 The notice of appeal filed by motion-to-withdraw counsel on October 25,

2012, was premature, because it was filed before the trial court entered its
written order. See Gillen v. Bostick,

 (1) (

215 SE2d 676

)
(1975) (prematurity of notice of appeal does not divest appellate court of
jurisdiction). Ricks’s counsel also filed a motion to withdraw as counsel, which
the trial court granted in an order entered on October 30, 2012. Six years later,
in August 2018, the appeal of the November 20, 2012 order was docketed in
this Court, with motion-to-withdraw counsel still listed as counsel of record.
On October 18, 2018, because no brief had been filed for Ricks and motion-towithdraw counsel had informed this Court that she no longer represented
Ricks, this Court entered an order striking the case from the docket and
remanding to the trial court for a determination of whether new counsel should
be substituted or appointed. On December 3, 2018, the trial court entered an
order approving the appointment of appellate counsel.
2 The only error that Ricks enumerates is the denial of her motion to

withdraw her guilty plea. Therefore, the denial of her motion for a reduction
in her sentence is not before us.
3
withdraw her guilty plea, those filings were nullities that presented

nothing for the trial court to decide. Here, the trial court entered a

judgment of conviction and sentence on May 4, 2012, and Ricks’s pro

se filings entered later that month came well before the next term of

court began in July 2012. See OCGA § 15-6-3 (28) (A). Given that

the record contains no order allowing plea counsel to withdraw

before she submitted her pro se filings in May 2012, Ricks was still

represented by counsel when she submitted them, such that her pro

se motions were legal nullities. Dos Santos v. State,

307 Ga. ___

, ___

(2), (3) (___ SE2d ___) (decided October 21, 2019) (“Dos Santos’s pro

se motion to withdraw her pleas was unauthorized and without

effect, because she had no right to represent herself at the same time

she was represented by a lawyer.”). And although motion-to-

withdraw counsel argued at the October 2012 hearing that Ricks

should be allowed to withdraw her guilty plea, that “could not

breathe life into [Ricks’s] inoperative pleading[s].”

Id.

 at __ (3) n.4.

The trial court therefore should have dismissed Ricks’s May 2012

pro se motions, rather than denied them.

Id.

 at 9 __ (3); see also

                                   4
White v. State,

302 Ga. 315, 319-320

 (2) (

806 SE2d 489

) (2017).

     The trial court’s order also appears to have disposed of the

August 2012 filings, as well. It is not clear from the record whether

Ricks was represented by counsel when she submitted those filings,

as the record contains neither an order relieving plea counsel of his

duties nor an order appointing motion-to-withdraw counsel.3 If

Ricks were represented at the time she purported to make filings on

her own behalf, those filings also would be legal nullities. See Dos

Santos, ___ Ga. at ___ (2), (3). But those filings were entered after

the term of court in which she was convicted and sentenced had

ended and after the period for filing a timely notice of appeal had

expired, so we do not presume that Ricks was represented by counsel

when she purported to make filings on her own behalf. See

id.

 at ___

(2), ___ (5). And yet, regardless of whether Ricks was represented

when she submitted the purportedly pro se August 2012 filings, they

were submitted after the expiration of the term of court during


     3 The record indicates that the trial court sent a notice of the hearing on

Ricks’s motions to plea counsel in September 2012, but new counsel
represented her at that hearing.
                                      5
which Ricks entered her guilty plea. Therefore, the trial court no

longer had jurisdiction to grant a motion to withdraw a guilty plea.

See

id.

 at ___ (4) n.5; White,

302 Ga. at 320

 (2); Brooks v. State,

301 Ga. 748, 751

 (2) (

804 SE2d 1

) (2017). To the extent that the trial

court construed either of the August 2012 filings as a motion to

withdraw a guilty plea and thereby disposed of them in its

November 2012 order, the trial court should have dismissed, rather

than denied, the motion. White,

302 Ga. at 320

 (2); Brooks

301 Ga. at 752

 (2).

     In short, whether Ricks’s filings were nullities or merely

untimely, the trial court should have dismissed them. But instead,

the trial court considered them on the merits, stating that it found

“no evidence of either sub-standard performance from her trial

counsel or prejudice arising from his actions” and “no grounds to

adjust or reduce the Defendant’s sentence.” We therefore vacate the

trial court’s order and remand with instructions to dismiss Ricks’s

May 2012 pro se filings, and, at least to the extent that it construed

them as a motion to withdraw a guilty plea, Ricks’s August 2012 pro

                                  6
se filings. See Dos Santos, 307 Ga. at __ (3) (“The trial court should

have dismissed Dos Santos’s pro se motion rather than ruling on its

merits. We therefore vacate the trial court’s judgment and remand

the case with direction to dismiss the motion.” (citation and footnote

omitted)); Brooks,

301 Ga. at 752

 (2) (“[B]ecause the court’s order

plainly shows that it denied Brooks’s untimely motion on the merits

. . . . we vacate the trial court’s order and remand with instructions

to dismiss.”).

     Judgment vacated and case remanded. All the Justices concur.




                    DECIDED OCTOBER 31, 2019.

                                  7
     Murder. Baldwin Superior Court. Before Judge George, Senior
Judge.
     Bentley C. Adams III, for appellant.
     Stephen A. Bradley, District Attorney, Tammy G. Coffey,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Vanessa T. Sassano,
Assistant Attorney General, for appellee.




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