310 Ga. 651
FINAL COPY
S21A0171. BOONE v. THE STATE.
MELTON, Chief Justice.
On May 10, 2012, Odeirrick Boone entered a non-negotiated
guilty plea to malice murder and various other offenses in
connection with the robbery of a convenience store and the stabbing
death of the store owner, Balk Sung. On January 31, 2020, Boone
filed a pro se motion for leave to file an out-of-time appeal, arguing
that his trial counsel was ineffective for having failed to inform him
of his right to pursue an appeal of his convictions. The trial court
denied Boone’s motion summarily and without holding a hearing,
which prompted the current appeal. For the reasons that follow, and
as the State properly concedes, the trial court’s order must be
vacated and this case remanded to the trial court to hold a hearing
to determine whether Boone is entitled to an out-of-time appeal due
to the ineffective assistance of his plea counsel.
“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
the constitutional violation alleged by the defendant is
ineffective assistance of counsel in providing advice about
or acting upon an appeal of right [such as an appeal from
the judgment of conviction entered on a guilty plea], that
violation is reviewed under the familiar standard of
Strickland v. Washington, 466 U. S. 668 (
104 SCt 2052,
80 LE2d 674) (1984). [Cit.] To meet his burden of proving
that counsel’s ineffectiveness deprived him of his right to
an appeal, the criminal defendant must show (1) that
counsel’s representation fell below an objective standard
of reasonableness, and (2) that counsel’s deficient
performance prejudiced the defendant. [Cit.]
(Punctuation omitted.) Id. at 364-365 (1).
However, with regard to the deficient performance prong of the
Strickland test, “we cannot determine whether [Boone’s] counsel
performed deficiently in failing to file a notice of appeal because the
trial court failed to hold an evidentiary hearing on the issue.”
Blackwell v. State, 306 Ga. 577, 578 (
832 SE2d 352) (2019).
Accordingly, we must vacate the trial court’s order denying Boone’s
motion for an out-of-time appeal and remand this case to the trial
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court for a determination of whether counsel performed deficiently
in failing to inform Boone of his right to a direct appeal from his
guilty plea. See Collier, supra,
307 Ga. at 376 (3).
With respect to the prejudice prong of the Strickland test, we
emphasize that to be granted an out-of-time appeal Boone need not
prove that he would have prevailed in a timely appeal, but only that
“there is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have timely
appealed.” Ringold v. State, 304 Ga. 875, 881 (
823 SE2d 342) (2019)
(quoting Roe v. Flores-Ortega,
528 U. S. 470, 484 (II) (B) (3) (
120 SCt
1029, 145 LE2d 985) (2000)). See also
Blackwell, supra,
306 Ga. at
578;
Collier, supra,
307 Ga. at 365 (1).
We therefore vacate the trial court’s order denying Boone’s
motion for an out-of-time appeal and remand this case to the trial
court for proceedings consistent with this opinion. See Blackwell,
supra,
306 Ga. at 578.
Judgment vacated and case remanded with direction.
Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and
McMillian, JJ., concur. Warren, J., not participating.
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DECIDED DECEMBER 21, 2020.
Murder. Fulton Superior Court. Before Judge Barwick.
Odeirrek D. Boone, pro se.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Richard B. Caplan, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Meghan H. Hill, Assistant Attorney General, for appellee.
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