310 Ga. 426
FINAL COPY
S20A1146. BONNER v. THE STATE.
ELLINGTON, Justice.
Ronnie Bonner entered a non-negotiated guilty plea to malice
murder and other charges in connection with a March 2012 home
invasion in Richmond County. Bonner later filed a motion to
withdraw his guilty plea, and, following a hearing, the trial court
entered an order denying the motion. Bonner appeals, challenging
the voluntariness of his plea and claiming that he received
ineffective assistance of counsel. Because the trial court lacked
jurisdiction to consider the merits of Bonner’s motion to withdraw,
as explained below, we vacate the appealed order and remand this
case to the trial court for dismissal of Bonner’s motion to withdraw
his guilty plea.
The record shows the following. On September 5, 2013, the
Superior Court of Richmond County entered judgment on Bonner’s
guilty plea to malice murder, aggravated assault, burglary,
attempted armed robbery, and possession of a firearm during the
commission of those offenses. The court sentenced Bonner to a total
of life plus 20 years in prison. Bonner did not file a notice of appeal
from the judgment entered on his guilty plea.1 Bonner filed a motion
to withdraw his guilty plea on July 3, 2014. The trial court conducted
a hearing on the motion on February 25, 2015, and entered its order
denying the motion on March 5, 2015. In that order, the trial court
found, among other things, that Bonner freely and voluntarily
entered his guilty plea and that the facts were insufficient to show
ineffective assistance of counsel. Bonner timely appealed from that
order.2
1 See Collier v. State, 307 Ga. 363, 368 (1) (
834 SE2d 769) (2019) (a
defendant who pleads guilty has a right to appeal from the judgment entered
on his guilty plea).
2 Bonner filed a notice of appeal from the order on Monday, April 6, 2015.
The Appellate Practice Act provides that “[a] notice of appeal shall be filed
within 30 days after entry of the appealable decision or judgment complained
of[.]” OCGA § 5-6-38 (a). The 30th day after the trial court entered its order
denying Bonner’s motion to withdraw his March 5, 2015 guilty plea fell on
Saturday, April 4, 2015. Therefore, Bonner’s notice of appeal was timely. See
OCGA § 1-3-1 (d) (3) (“[I]f the last day [of a statutory time period for the
exercise of any privilege or the discharge of any duty] falls on Saturday or
Sunday, the party having such privilege or duty shall have through the
following Monday to exercise the privilege or to discharge the duty.”). We note
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Although Bonner’s appeal from the order denying his motion
to withdraw is timely, the motion itself was not timely filed in the
trial court. The trial court accepted Bonner’s guilty plea and
sentenced him on September 5, 2013, during the term of court that
began on Monday, July 15, 2013. See OCGA § 15-6-3 (5) (C) (The
terms of court for the Superior Court of Richmond County
commence on the “[t]hird Monday in January, March, May, July,
September, and November.”). After Bonner was sentenced that day,
a new term of court began on Monday, September 16, 2013. See id.
Bonner filed his motion to withdraw his guilty plea on July 3, 2014,
that the trial court sua sponte entered an order purporting to dismiss Bonner’s
April 6, 2015 notice of appeal as untimely, which it lacked the authority to do,
and the clerk of the superior court did not transmit the record until the trial
court entered a consent order purporting to grant Bonner’s motion for an outof-time appeal. See Moore v. State, 308 Ga. 312, 313 (1) (
840 SE2d 353) (2020)
(“[A]n appellate court is the sole authority in determining whether a filed
notice of appeal or discretionary application is sufficient to invoke its
jurisdiction.” (citation and punctuation omitted)). Such proceedings following
the filing of a proper and timely notice of appeal are without legal effect. See
Upton v. Jones,
280 Ga. 895, 896 (1) (
635 SE2d 112) (2006) (“[T]he filing of the
notice of appeal operates as a supersedeas and deprives the trial court of the
power to affect the judgment appealed, so that subsequent proceedings
purporting to supplement, amend, alter or modify the judgment, whether
pursuant to statutory or inherent power, are without effect.” (citation and
punctuation omitted)).
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well after the expiration of the term in which he was sentenced. “It
is well settled that, when the term of court has expired in which a
defendant was sentenced pursuant to a guilty plea, the trial court
lacks jurisdiction to allow the withdrawal of the plea.” McGee v.
State, 296 Ga. 353, 353 (1) (
765 SE2d 347) (2014) (citation and
punctuation omitted).
Although the untimeliness of Bonner’s motion to withdraw his
guilty plea does not deprive this Court of appellate jurisdiction, it is
a defect that restricted the trial court’s authority. See Lay v. State,
289 Ga. 210, 212 (2) (
710 SE2d 141) (2011). Because the trial court
lacked jurisdiction to consider Bonner’s untimely motion on the
merits, the court should have dismissed the motion rather than
denying it. See Ricks v. State,
307 Ga. 168, 170 (
835 SE2d 179)
(2019); Brooks v. State,
301 Ga. 748, 752 (2) (
804 SE2d 1) (2017).
When an order states that a procedurally barred motion is “denied,”
rather than “dismissed,” without more, we assume that the order
was not an unauthorized decision on the merits, which would
require vacatur of the order. See Brooks,
301 Ga. at 752 (2). That
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presumption does not apply here, however, because the trial court’s
order plainly shows that it denied Bonner’s untimely motion to
withdraw his guilty plea on the merits, in that the order sets out
findings of fact and conclusions of law regarding the claims in
Bonner’s motion. See id. This unauthorized decision on the merits
requires vacatur of the order. After the expiration of the term of
court in which the court accepted Bonner’s plea and sentenced him,
he can only obtain the relief he seeks through a petition for a writ of
habeas corpus. See Smith v. State,
298 Ga. 487, 488 (
782 SE2d 17)
(2016); Foster v. State,
294 Ga. 400, 401 (
754 SE2d 78) (2014). We
therefore vacate the trial court’s order denying Bonner’s motion to
withdraw his guilty plea and remand the case to the trial court with
direction that it enter the appropriate order dismissing the motion.
See Ricks,
307 Ga. at 170; Brooks,
301 Ga. at 749.
Judgment vacated and case remanded with direction. All the
Justices concur, except Warren, J., not participating.
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Decided November 16, 2020.
Murder. Richmond Superior Court. Before Judge Overstreet,
Senior Judge.
Veronica E. Brinson, for appellant.
Natalie S. Paine, District Attorney, Joshua B. Smith,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant
Attorney General, for appellee.
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