Rutledge v. State

FINAL COPY


             S20A0766. RUTLEDGE v. THE STATE.


     NAHMIAS, Presiding Justice.

     The trial court summarily denied appellant Marcus Rutledge’s

pro se motion for an out-of-time appeal from his murder conviction,

which was entered on his guilty plea; in the motion, Rutledge also

requested a copy of his case file and transcripts. Because the trial

court did not hold a hearing to determine whether Rutledge’s failure

to file a timely appeal was due to the ineffective assistance of his

plea counsel, we vacate the part of the court’s order denying the

motion for an out-of-time appeal and remand for such a hearing.

Because Rutledge’s request for a free copy of his case records did not

satisfy the standard for such a request made after the deadline for

a timely appeal, we affirm the trial court’s denial of that part of his

motion.

     1. In June 2016, a Houston County grand jury indicted
Rutledge for malice murder, two counts of felony murder,

aggravated battery, aggravated assault, possession of a firearm by

a convicted felon, and possession of a firearm during the commission

of a felony in connection with the April 2016 shooting death of Brian

Williams. In February 2018, Rutledge pled guilty to malice murder,

and the trial court sentenced him to serve life in prison; the

remaining counts were nolle prossed. He did not file a timely appeal.

     On July 1, 2019, Rutledge, representing himself, filed a two-

page motion for an out-of-time appeal of his conviction, in which he

asserted that “the only relevant effectiveness factor is whether the

[defendant] had a possible ground for appeal, about which his lawyer

failed to inform him.” Rutledge also asserted his alleged right to be

sent a copy of his case file and transcripts to timely amend his

motion prior to the court’s ruling. That same day, without a response

from the State or a hearing, the trial court summarily denied the

motion, saying, “Whatever remedies [Rutledge] wishes to pursue at

this late date are to be addressed through collateral review.” This

appeal followed.
     2. To be entitled to an out-of-time appeal, a criminal 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.’”

Collier v. State, 

 (

) (2019) (citation

omitted). In Collier, which was decided a few months after the trial

court’s ruling in this case, we looked to governing precedents from

the United States Supreme Court and overruled a long line of

Georgia appellate cases which had erroneously held that a

defendant seeking an out-of-time appeal from a conviction entered

on a guilty plea must show not only that he failed to file a timely

appeal due to his counsel’s deficient performance but also that such

an appeal would have had merit. See id. at 365-369.

     As Collier explains, when a defendant alleges in a motion for

an out-of-time appeal that he was deprived of his right to appeal due

to his counsel’s ineffective assistance, the trial court must hold an

evidentiary hearing to determine whether counsel was in fact
responsible for the failure to pursue a timely appeal. See id. at 365

& n.1. If the trial court did not make this factual inquiry, the case

must be remanded for such a hearing and determination. See id. at

376 (“Because the trial court denied Collier’s motion for an out-of-

time appeal without holding an evidentiary hearing, we cannot

determine from the appellate record whether Collier’s failure to

timely pursue an appeal was actually the result of his counsel’s

deficient performance.”). See also Burley v. State, ___ Ga. ___, ___

(

) (2020); Jones v. State, 

 (

) (2020).

     In this case, Rutledge alleged in his motion that he was entitled

to an out-of-time appeal from his guilty plea conviction if there was

“a possible ground for appeal, about which his lawyer failed to

inform him.” That is not much of an allegation that his plea counsel’s

ineffective assistance was responsible for his failure to file a timely

appeal, but particularly given his pro se status and the change in

the law wrought by Collier, we conclude that it is sufficient to

require a factual determination by the trial court regarding the
advice, if any, that plea counsel gave to Rutledge about an appeal.

Accordingly, we vacate the portion of the trial court’s order denying

Rutledge’s motion for an out-of-time appeal and remand the case for

the court to conduct an evidentiary hearing and determine whether

plea counsel’s ineffective assistance was responsible for Rutledge’s

failure to pursue a timely appeal. See Burley, ___ Ga. at ___; Jones,

.

     3. We turn now to Rutledge’s request for a copy of his case file

and transcripts (which we take to mean at least the transcript of his

guilty plea hearing). It has long been the law in Georgia that

although an indigent criminal defendant has “a basic right to a free

transcript to perfect a timely direct appeal,” Mydell v. Clerk,

Superior Court of Chatham County, 

 (

)

(1978), “[a]fter the time for appeal has expired there is no due

process or equal protection right to a free copy of one’s court records

absent a showing of necessity or justification,” Huddleston v. Clerk

of Superior Court, Carroll County, 

 (

)

(1977). We have said that a defendant may make such a showing by
an affidavit setting out the “particular reasons” why the transcript

or other requested record is necessary and stating that the

defendant and his attorney have never previously been supplied a

copy of the record and that it is not otherwise available to him; if the

request for records is free-standing, the defendant should also

attach a copy of the pending or proposed habeas petition or other

post-conviction relief, such as an out-of-time appeal, for which the

transcript or other record allegedly is needed. Mydell, 

.

See also Wilson v. Downie, 

 (

) (1972)

(holding that after the appeal period has expired, “[t]here must be

some justification or showing of necessity beyond a mere naked

demand for a transcript” (punctuation omitted)).

     The time for Rutledge to file a timely appeal expired long before

he requested his case records. He did make the request in

conjunction with his motion for an out-of-time appeal; however, he

made no showing by affidavit or other proof of the need for the

records or that he or his lawyer had not previously been supplied
with the records and that they are otherwise not available to him. 1

Accordingly, on the current record, the trial court did not err in

denying Rutledge’s request for his case file and transcript. See, e.g.,

McDowell v. Balkcom, 

 (

) (1980);

Flucas v. Hinson, 

 (

) (1978).2 We

therefore affirm that part of the trial court’s order.3


      1 We note, however, that no transcript of the guilty plea hearing appears

in the record on appeal. Compare Mydell, 

 (taking judicial notice
of the fact that the record in Mydell’s prior direct appeal included the trial
transcript as well as indications that a copy had been provided to his attorney).
       2 We render no opinion as to whether on remand Rutledge could make a

valid request for his case file and any specific transcripts supported by an
affidavit or other proof. We note in this respect that Georgia case law does not
elaborate on Mydell’s requirement that the defendant set forth “particular
reasons” showing the necessity for case records requested at the government’s
expense. The cases generally have been resolved based on the defendant’s bald
demand for records or on his failure to connect a request to any pending or
proposed post-conviction proceeding, failure to aver his lack of access to the
records, or evidence that he or his attorney already was provided the records,
any of which undermines the defendant’s need for the records. We need not try
to define the “necessity” requirement here, except to recognize that decisions
on this issue should take into account constitutional concerns. See, e.g., United
States v. MacCollom, 

 (

, 48 LE2d 666) (1976);
Gardner v. California, 

 (

, 21 LE2d 601) (1969).
       3 We have clarified in recent cases that a criminal defendant’s free-

standing request for case records, unconnected to a pending or proposed habeas
corpus or other cognizable post-conviction proceeding, is a legal nullity that the
trial court should dismiss and that provides nothing cognizable to appeal. See
Schoicket v. State, 

 (

) (2018); Henderson v. State,

 (

) (2018). See also Williams v. State, 

, 367 n.4 (

) (2019). Here, by contrast, the request was made
as part of Rutledge’s motion for an out-of-time appeal and thus was cognizable.
    Judgment affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur.



                     DECIDED AUGUST 10, 2020.
     Murder. Houston Superior Court. Before Judge Lukemire.
     Marcus Maurice Rutledge, pro se.
     George H. Hartwig III, District Attorney, Daniel P. Bibler,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, for appellee.