310 Ga. 547
FINAL COPY
S20A1318. DAVIS v. THE STATE.
ELLINGTON, Justice.
Detrik Lamon Davis appeals pro se from an order of the
Superior Court of Lincoln County denying his motion for an out-of-
time appeal. The superior court found that Davis failed to carry his
burden of showing that the lack of an appeal from the judgment of
conviction entered following his guilty plea was the result of
counsel’s ineffective assistance. Davis contends that he was “forced
to improperly proceed pro se on his first appeal from his conviction
based on a guilty plea.” He also argues that he was entitled to
appointed counsel to assist him with his motion for an out-of-time
appeal. For the following reasons, we find no merit to these claims
of error and affirm.
The record shows that, with the assistance of counsel and
pursuant to a plea agreement, Davis entered a guilty plea in October
1997 to felony murder, aggravated assault, and attempted feticide
in connection with the death of Quatasha Cheeley.1 The court
sentenced Davis to life imprisonment for felony murder, plus ten
years concurrent imprisonment for attempted feticide.2 No appeal
was taken. In November 2019, Davis filed a pro se motion for an out-
of-time appeal in the court of conviction. After a hearing at which
Davis and defense counsel testified, the superior court denied the
motion on February 19, 2020.3
1 Cheeley was Davis’s 13-year-old stepsister. When she refused to have
sex with Davis, he knocked her unconscious, poured gasoline on her, and set
her on fire. Cheeley was eight months’ pregnant with Davis’s child. The child
was delivered alive a few days before Cheeley died of her injuries.
2 The aggravated assault count merged with the felony murder
conviction. (Davis had also been indicted for malice murder and two other
counts of aggravated assault. Those counts were nolle prossed as part of the
plea agreement.)
3 On February 24, 2020, Davis filed a notice of appeal in the superior
court and an application for a certificate of probable cause. Davis did not
specifically indicate a desire to appeal the superior court’s February 19 order;
rather, his pleading was styled as a “motion to remand.” Nevertheless, the
pleading indicates that Davis urged this Court to direct the superior court to
appoint him counsel to help him pursue whatever post-conviction remedies he
may have. Because Davis is entitled to a direct appeal from the February 19
order denying his motion for an out-of-time appeal and because his notice of
appeal was timely filed from that order, this Court has construed Davis’s
appeal as challenging the merits of the superior court’s denial of his motion for
an out-of-time appeal. On September 23, 2020, Davis also filed in this Court a
“Request for a Dismissal of Direct Appeal, Only for the Purpose of a Remand.”
Again, Davis asked this Court to remand the case “with direction to grant the
defendant an attorney for the purposes of pursuing leave to appeal a
substantive right violation claim,” citing Collier v. State, 307 Ga. 363, 364 (1)
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1. Davis contends he was entitled to appointed counsel to assist
him in preparing and filing his motion for an out-of-time appeal.
This argument is without merit. See Pierce v. State, 289 Ga. 893, 894
(1) (
717 SE2d 202) (2011) (“[B]ecause a motion for an out-of-time
appeal cannot be construed as part of a criminal defendant’s first
appeal of right, [defendant] was not entitled to the assistance of
appointed counsel.” (citations and punctuation omitted)).
2. Davis also contends that the trial court erred in denying his
motion for an out-of-time appeal on ineffective assistance of counsel
grounds. For the following reasons, we find no abuse of discretion.4
“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, 307 Ga. 363, 364 (1) (
834 SE2d 769) (2019).
Where a defendant alleges that he was deprived of an
appeal of right that he otherwise would have pursued by
(834 SE2d 769) (2019). Given our decision in this opinion, Davis’s request for
a dismissal is denied as moot.
4 We review a trial court’s denial of a motion to file an out-of-time appeal
for an abuse of discretion. (Citations and punctuation omitted.) Jones v. State,
308 Ga. 337, 337-338 (
840 SE2d 357) (2020).
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his counsel’s constitutionally deficient performance in
providing advice about or acting upon such appeal, that
alleged violation “is reviewed under the familiar standard
of Strickland v. Washington, 466 U. S. 668 (
104 SCt 2052,
80 LE2d 674) (1984).” Collier, 307 Ga. at 365 (1) (citation
and punctuation omitted). With respect to the first
component of the Strickland standard, the defendant
must show that his appeal of right was lost as a
consequence of his counsel’s deficient performance, and
the trial court must make a factual inquiry into those
allegations. With respect to the second component of the
Strickland standard, the defendant is required to
demonstrate only that there is a reasonable probability
that, but for counsel’s deficient performance, he would
have timely appealed. Id. (citations and punctuation
omitted).
Moore v. State, 308 Ga. 312, 313-314 (2) (
840 SE2d 353) (2020)
(punctuation omitted).
The transcript of the hearing on Davis’s motion for an out-of-
time appeal shows the following. Davis testified that he filed the
motion when a fellow inmate advised him to seek an out-of-time
appeal. The inmate prepared the motion on Davis’s behalf. Davis
testified that he did not seek an appeal after he entered his guilty
plea because he was “ready to do” the sentence negotiated by his
trial counsel. Davis was unable to articulate specifically what his
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trial counsel should have done for him; rather, he complained that
he should have been paroled after serving 14 years. He also said that
he would not have pleaded guilty had he been more informed. Of
what counsel should have informed him, Davis could not say.
A few days after Davis’s arrest, a public defender was
appointed to represent him. Defense counsel testified that he met
with Davis regularly, discussed discovery with him, and prepared
the case thoroughly for trial. He obtained funds for a private
investigator. Given Davis’s youth and suspected mental health
problems, counsel investigated theories of defense based on
diminished capacity or culpability. He sought and obtained two
psychological evaluations of Davis. Davis, however, was found
competent to stand trial, and the psychiatric evaluations, in
counsel’s estimation, were not helpful to the defense.
As the trial date approached, Davis wrote counsel and
informed him that he wanted to plead guilty. In the letter, Davis
complained that the psychiatrists did not understand “how he was
feeling when he did what he did,” that he believed that “all arrows
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point to guilty,” and that he did not want to risk a sentence of life
without parole.5 Davis wrote that, while his decision may seem
“radical,” he believed it was the only alternative that he had left.
Counsel testified that he thought Davis was being overly emotional;
nevertheless, he began informal plea discussions with the
prosecutor handling the case while he continued to prepare for trial.
On the eve of trial, the prosecutor wrote counsel, offering Davis a
one-time-only plea offer of life imprisonment for felony murder and
ten years concurrent jail time for attempted feticide. Counsel
explained the offer to Davis, but he also told Davis that he was ready
to go to trial if Davis rejected the offer. Davis accepted the offer and
agreed to plead guilty.
Counsel discussed with Davis the rights he was waiving by
entering the plea and had him read and sign a plea form. He also
informed Davis that he would be eligible for parole in 14 years, but
that parole was up to the Parole Board and there was no guarantee
5 According to defense counsel, the prosecutor was threatening to re-
arraign Davis and to seek the death penalty or life without parole.
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he would be granted parole.6 Counsel testified that Davis never
wavered in his desire to plead guilty. He also explained to Davis that
he had a right to appeal a conviction following trial, but he did not
discuss the right to an appeal from a judgment of conviction entered
on a guilty plea because Davis had expressed no interest in an
appeal. Rather, Davis appeared eager to plead guilty and to spare
his family the trauma of a trial. After counsel testified, Davis told
him, on the record:
I would actually like to say thank you again, man, I
appreciate everything you did. I just read that letter and I
remember just — you actually begged me to fight and go to
trial. I just didn’t understand, you know what I’m saying? It’s
like I ain’t here to say you didn’t do your job, man, you did
great.
The record shows that, although Davis asserted no fault with
counsel’s performance, the superior court found that counsel failed
to consult with Davis about his right to appeal following the entry of
a guilty plea. Nevertheless, the court also concluded that counsel’s
failure to consult did not constitute a breach of his professional duty
6 Davis did, in fact, have a parole hearing in 2010, but he was denied
parole. He was also denied parole in 2018.
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because that failure was not objectively unreasonable performance
under the totality of the circumstances.
[C]ounsel has a constitutionally-imposed duty to consult
with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want
to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was
interested in appealing. In making this determination,
courts must take into account all the information counsel
knew or should have known. See [Strickland,] 466 U.S. at
690 (focusing on the totality of the circumstances).
Although not determinative, a highly relevant factor in
this inquiry will be whether the conviction follows a trial
or a guilty plea, both because a guilty plea reduces the
scope of potentially appealable issues and because such a
plea may indicate that the defendant seeks an end to
judicial proceedings. Even in cases when the defendant
pleads guilty, the court must consider such factors as
whether the defendant received the sentence bargained
for as part of the plea and whether the plea expressly
reserved or waived some or all appeal rights. Only by
considering all relevant factors in a given case can a court
properly determine whether a rational defendant would
have desired an appeal or that the particular defendant
sufficiently demonstrated to counsel an interest in an
appeal.
Roe v. Flores-Ortega, 528 U. S. 470, 480 (II) (A) (
120 SCt 1029, 145
LE2d 985) (2000).
In this case, the record shows that Davis got the benefit of the
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plea bargain offered by the prosecutor. He did not express any
dissatisfaction with the plea agreement, and he reserved no grounds
for an appeal. There is no evidence that Davis ever wavered in his
desire to plead guilty. To the contrary, Davis was the one who sought
to end the judicial proceedings to save his family the trauma of a
trial and to avoid the possibility of a harsher sentence after a trial.
Nothing in the record before the trial court supported a finding that
a rational convicted defendant would have sought an appeal under
these circumstances. Moreover, it is clear from the record that, even
if counsel had advised Davis of his right to appeal from a conviction
entered following a guilty plea, Davis would not have pursued an
appeal. For 22 years, Davis expressed no interest whatsoever in
challenging his conviction. Davis expressed only satisfaction with
his counsel’s performance. It appears his true complaint is that he
has been twice denied parole.
Finally, the record shows that the superior court reviewed the
entire record, made the appropriate inquiry into the relevant factors
following an evidentiary hearing, and found that “[a]fter considering
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the evidence, there appears to have been no nonfrivolous grounds
for appeal which a rational defendant would have wanted to pursue,
and there is no evidence to indicate that this particular defendant
demonstrated to his counsel that he was interested in appealing.”
Because Davis has failed to show that his appeal of right was lost as
a consequence of his counsel’s deficient performance, he has failed
to show that he was entitled to an out-of-time appeal on ineffective
assistance grounds. See Collier, 307 Ga. at 365 (1). See also Fields
v. United States,
577 Fed. Appx. 916, 920 (II) (11th Cir. 2014) (per
curiam) (The district judge did not err in finding that plea counsel
had no duty to consult under the circumstances, including that “no
rational convicted defendant would have wanted to appeal in these
circumstances, because of the guilty plea and Fields having received
the sentence he had sought.”).
For these reasons, the trial court did not abuse its discretion in
denying Davis’s motion for an out-of-time appeal.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, and McMillian, JJ., concur. Warren, J., not
participating.
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DECIDED DECEMBER 7, 2020.
Murder. Lincoln Superior Court. Before Judge Dunaway,
Senior Judge.
Detrik L. Davis, pro se.
William P. Doupé, District Attorney, Steven T. Normandia,
Assistant 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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