Clark v. State

FINAL COPY

                 S20A1151. CLARK v. THE STATE.


     WARREN, Justice.

     Eddie Clark pleaded guilty to felony murder and other crimes

in connection with the stabbing death of Elizabeth Hutcheson.

Years later, he filed a motion for out-of-time appeal, which the trial

court summarily denied without a hearing.                 For the reasons

explained below, we vacate the trial court’s order and remand this

case for an evidentiary hearing.

     1. In July 2012, a Polk County grand jury jointly indicted

Cadedra Cook and Clark, charging them with malice murder of

Hutcheson, felony murder predicated on aggravated assault, armed

robbery, aggravated assault, and obstruction of a law enforcement

officer. In February 2014, Clark entered a non-negotiated plea of

guilty to all counts except malice murder.1 He was sentenced to life



     1 Cook also pleaded guilty, but at a separate hearing.
in prison for felony murder, a consecutive 20-year term of

imprisonment for armed robbery, and a concurrent 12-month term

for obstruction of an officer. The aggravated assault count merged

into the felony murder count. Clark did not file a timely appeal.

      In September 2018, Clark filed a pro se motion for out-of-time

appeal, contending (among other things) that his failure to file a

timely appeal stemmed from his plea counsel’s constitutionally

ineffective assistance. Clark asserted that he had never waived his

appeal rights and that his plea counsel did not “discuss the appeal”

with him.2 The trial court denied Clark’s motion for out-of-time

appeal without a hearing, and Clark timely appealed that decision.



      2 In his motion for out-of-time appeal, Clark also challenged the validity

of his guilty plea, contending (among other things) that it was not made freely
and voluntarily and that his plea counsel rendered constitutionally ineffective
assistance because she did not explain the murder charges to him, did not
investigate any potential line of defense, and failed to subject the State’s case
to minimal adversarial testing. The trial court did not rule on any of these
claims, and Clark repeats them in his brief to this Court. At this stage of the
proceedings, however, Clark has not been granted an out-of-time appeal, and
no valid notice of appeal from his convictions has been filed in this case. Thus,
we have no jurisdiction at this time to review any claims challenging his
convictions. See Cody v. State, 

 (

) (2004) (if a
defendant is granted an out-of-time appeal and “wishes to pursue postconviction relief in the appellate courts,” he “has 30 days from the grant to file
a notice of appeal to the appellate court with subject-matter jurisdiction”).
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       2. “We review a trial court’s denial of a motion for an out-of-

time appeal for an abuse of discretion.” Burley v. State, 

 (

) (2020). “A criminal defendant is entitled to an

out-of-time appeal if his counsel’s constitutionally deficient

performance deprived him of an appeal of right that he otherwise

would have pursued.” Collier v. State, 

 (

) (2019). See also Ringold v. State, 

 (

)     (2019)     (“‘[W]hen   counsel’s    constitutionally     deficient

performance deprives a defendant of an appeal that he otherwise

would have taken,’ the defendant is entitled to an appeal because he

effectively   has    been   deprived    of   an   appellate     proceeding

altogether.”) (quoting Roe v. Flores-Ortega, 

 (

, 145 LE2d 985) (2000)).             For this reason, “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.” Rutledge v. State, 

 (847

                

) (2020).3 And a trial court “abuses its discretion when it

fails to make such a factual inquiry.” Burley, 

 (citation

and punctuation omitted).

      Here, Clark alleged in his motion for out-of-time appeal that

his failure to file a timely appeal resulted from his plea counsel’s

constitutionally ineffective assistance.         If Clark can prove this

allegation, he would be entitled to an out-of-time appeal.                 See

Collier, 

. However, the trial court denied Clark’s

motion without conducting a factual inquiry into his claim of

ineffective assistance.4 Accordingly, as the State concedes we should



      3 To determine whether a criminal defendant has been deprived of the

effective assistance of plea counsel, such as to entitle him to bring an out-of-time appeal, a court must utilize the “familiar standard of Strickland v.
Washington, 

 (

, 80 LE2d 674) (1984).” Collier, 

 (citation and punctuation omitted). Under this standard, the
defendant must show (1) that “his appeal of right was lost as a consequence of
his counsel’s deficient performance,” and (2) that “there is a reasonable
probability that, but for counsel’s deficient performance, he would have timely
appealed.” 

 (citation and punctuation omitted). The defendant does
not need to demonstrate that his underlying claims are meritorious, however,
or “that he would have actually prevailed in a timely appeal.” 

 (citation and
punctuation omitted).
       4 We note that the trial court ruled on Clark’s motion for out-of-time

appeal before we decided Collier, in which we overruled much of our existing
precedent concerning motions for out-of-time appeals filed after the entry of
guilty pleas. See Collier, 

.
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under the circumstances presented in this case, we vacate the trial

court’s judgment and remand “for the court to conduct an

evidentiary hearing and       determine    whether plea     counsel’s

ineffective assistance was responsible for [Clark’s] failure to pursue

a timely appeal.” Rutledge, 

. See also Collier, 

 (“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.”).

     Judgment vacated and case remanded with direction. Melton,
C. J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and
McMillian, JJ., concur.



                     Decided December 7, 2020.

     Murder. Polk Superior Court. Before Judge Lim.
     Eddie Clark, pro se.
     Oliver J. Browning, District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.


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