¶1In the Supreme Court of Georgia
¶2 Decided: April 5, 2021
¶3 S21A0217. MCDANIEL v. THE STATE.
¶4 WARREN, Justice.
¶5 Appellant Robert McDaniel appeals pro se from the trial court’s
¶6denial of his motion for out-of-time appeal, his general demurrer,
¶7and his motion in arrest of judgment. For the reasons that follow,
¶8we affirm in part and dismiss in part.
¶9 On May 12, 2014, a Paulding County grand jury indicted
¶10McDaniel for malice murder (Count 1); felony murder (Count 2);
¶11possession of a firearm during the commission of the offense of
¶12murder (Count 3); aggravated assault, family violence (Count 4);
¶13possession of a firearm during the commission of aggravated assault
¶14(Count 5); and aggravated stalking (Count 6) in connection with the
¶15shooting death of Maria Nunez-McDaniel. The grand jury also
¶16indicted McDaniel for aggravated assault (Count 7) and possession of a firearm during the commission of a felony (Count 8) in
¶17connection with an assault on Julia Olmos.
¶18 On November 4, 2014, McDaniel entered a negotiated guilty
¶19plea to malice murder, possession of a firearm during the
¶20commission of the offense of murder, and aggravated stalking, as
¶21well as to the aggravated assault against Olmos. As part of the plea,
¶22Counts 2, 5, and 8 were nolle prossed, and Count 4 was merged with
¶23the malice murder count. McDaniel was sentenced to serve life with
¶24the possibility of parole for malice murder, a probated five-year
¶25consecutive sentence on Count 3, and two ten-year concurrent
¶26sentences on Counts 6 and 7.
¶27 In 2018, McDaniel filed a motion for out-of-time appeal, which
¶28the trial court denied without a hearing. McDaniel filed an
¶29application for discretionary appeal, which we granted under OCGA
¶30§ 5-6-35 (j) because McDaniel had a right of direct appeal. See Case
¶31No. S18D1312 (June 15, 2018). McDaniel then filed a notice of
¶32appeal, and we ultimately vacated the trial court’s order denying his
¶33motion for out-of-time appeal and remanded the case for the trial
¶34 2 court to hold an evidentiary hearing and determine whether plea
¶35counsel’s constitutionally ineffective assistance was responsible for
¶36McDaniel’s failure to pursue a timely appeal. See Case No.
¶37S19A0660 (Oct. 21, 2019); Collier v. State, 307 Ga. 363, 376 (834
¶38SE2d 769) (2019).
¶39 Following that remand, McDaniel filed a general demurrer and
¶40motion in arrest of judgment in the trial court, contending that the
¶41malice murder and aggravated assault counts of his indictment were
¶42defective because they failed to allege essential elements of those
¶43crimes. In July 2020, the trial court held a hearing on McDaniel’s
¶44motion for out-of-time appeal, his general demurrer, and his motion
¶45in arrest of judgment. On August 27, 2020, the trial court entered
¶46an order denying McDaniel’s motion for out-of-time appeal, ruling
¶47that his plea counsel did not perform deficiently in failing to file an
¶48appeal on McDaniel’s behalf. The next day, the trial court entered
¶49an order denying McDaniel’s general demurrer and his motion in
¶50arrest of judgment, ruling that they were “untimely and
¶51substantively lack[ed] any merit.”
¶52 3 1. In his notice of appeal, McDaniel specified that he was
¶53appealing from the trial court’s August 27, 2020 order denying his
¶54motion for out-of-time appeal. However, he did not challenge that
¶55order in his initial brief on appeal. And even to the extent his reply
¶56brief could perhaps be construed as challenging that order,
¶57McDaniel is not entitled to have the challenge considered when it is
¶58not raised in his initial brief. See Williams v. State, 307 Ga. 689,
¶59689 n.2 (838 SE2d 314) (2020) (holding that a pro se appellant “‘who
¶60raises an argument for the first time in a reply brief is not entitled
¶61to have that argument considered’”) (citation omitted). In any event,
¶62however, a claim that the trial court erred in denying McDaniel’s
¶63motion for out-of-time appeal would be without merit. 1
¶64 Where, as here, “a defendant alleges that he was deprived of
¶65an appeal of right that he otherwise would have pursued by his
¶66counsel’s constitutionally deficient performance in providing advice
¶67about or acting upon such appeal, that alleged violation ‘is reviewed
¶68 1 It appears that McDaniel may have thought that this Court granted him an out-of-time appeal when it granted his application for discretionary appeal under OCGA § 5-6-35 (j), but that is not so. 4 under the familiar standard of Strickland v. Washington, 466 U. S.
¶69668 (104 SCt 2052, 80 LE2d 674) (1984).’” Davis v. State, ___ Ga.
¶70___, ___ (852 SE2d 517, 519) (2020) (quoting Moore v. State, 308 Ga.
¶71312, 313 (840 SE2d 353) (2020) (punctuation omitted)).
¶72 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.
¶73Id. (citation and punctuation omitted).
¶74 To determine whether counsel was constitutionally ineffective for failing to file a timely notice of appeal, the first question that must be answered is whether counsel “consulted” with the defendant about an appeal—that is, whether counsel “advis[ed] the defendant about the advantages and disadvantages of taking an appeal, and ma[de] a reasonable effort to discover the defendant’s wishes.” If counsel adequately consulted with the defendant, counsel performed deficiently only if he failed “to follow the defendant’s express instructions with respect to an appeal.”
¶75Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019)
¶76(quoting Roe v. Flores-Ortega, 528 U.S. 470, 478 (120 SCt 1029,
¶77 5 145 LE2d 985) (2000)). “However, if counsel did not consult
¶78with the defendant, ‘the court must in turn ask a second, and
¶79subsidiary, question: whether counsel’s failure to consult with
¶80the defendant itself constitute[d] deficient performance.’”
¶81Ringold, 304 Ga. at 879 (quoting Flores-Ortega, 528 U.S. at
¶82478). And
¶83 “[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.”
¶84Id. (quoting Flores-Ortega, 528 U.S. at 480).
¶85 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
¶86 6 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.
¶87Davis, ___ Ga. at ___ (852 SE2d at 521) (quoting Flores-Ortega, 528
¶89 At the hearing on McDaniel’s motion for out-of-time appeal,
¶90plea counsel testified that at the time of the plea proceedings,
¶91McDaniel did not indicate to her that he wanted to appeal his plea
¶92and sentence and that he never contacted her about the case from
¶93the time of the plea in November 2014 to the time plea counsel left
¶94the public defender’s office in November 2015. She also testified
¶95that McDaniel, who was 46 years old at the time of the plea, was
¶96concerned about receiving a sentence of life without the possibility
¶97of parole. When asked if “a big part of [the] plea negotiations” was
¶98“to ensure” that McDaniel received a sentence of life with the
¶99possibility of parole, plea counsel testified, “Yeah, I mean . . . , I can’t
¶100remember exactly . . . my line of thought . . . . But from my
¶101experience, I can tell you that with a murder charge, yes, that is
¶102 7 always going to be a concern and part of the thought process.” Plea
¶103counsel acknowledged that she discussed with McDaniel paragraph
¶10418 of the plea agreement, which provided that McDaniel understood
¶105“that any motion to withdraw this guilty plea must be filed within
¶106this term of court.” But she testified that apart from the plea
¶107agreement, she did not advise McDaniel about his right to appeal
¶108from the plea.
¶109 The trial court found that plea counsel did not consult with
¶110McDaniel about his right to appeal following the entry of his plea,
¶111and the State does not dispute that finding on appeal. Nonetheless,
¶112the trial court concluded that plea counsel’s failure to consult was
¶113not constitutionally deficient based on the considerations set forth
¶114in Flores-Ortega, 528 U.S. at 480, and we conclude that the trial
¶115court did not err in reaching that conclusion.
¶116 First, plea counsel testified that McDaniel never expressed to
¶117her an interest in appealing from his guilty plea, either immediately
¶118following the plea or at any time before she left the public defender’s
¶119office about a year later. Second, a “highly relevant factor in this
¶120 8 inquiry” is that McDaniel’s convictions followed his plea of guilty.
¶121Id. Moreover, McDaniel “received the sentence bargained for as part
¶122of the plea.” Id. Indeed, plea counsel explained to McDaniel during
¶123the plea proceedings that he could seek to withdraw his plea, but
¶124McDaniel never indicated to plea counsel a desire to do so. Finally,
¶125we note that, at the guilty plea hearing, McDaniel apologized to the
¶126victims’ families, saying that he was “so sorry for what happened,”
¶127and apologized to his mother, telling her that he was sorry that he
¶128had disappointed her. He also added that “[t]he time that I have to
¶129serve I will serve it with my head focused, with my spirit focused.”
¶130Plea counsel and the trial court could have reasonably viewed such
¶131a statement as indicative of a defendant who was pleading guilty to
¶132“seek[] an end to judicial proceedings.” Id. For these reasons, we
¶133conclude that the trial court did not err when it determined that plea
¶134counsel would not have had reason to think that a rational
¶135defendant would have wanted to appeal, or that McDaniel
¶136reasonably demonstrated to counsel that he was interested in
¶137appealing. See id.
¶138 9 Accordingly, because the trial court did not err by concluding
¶139that McDaniel failed to show that his appeal of right was lost as a
¶140result of his counsel’s constitutionally deficient performance, it also
¶141did not abuse its discretion in denying McDaniel’s motion for out-of-
¶142time appeal. See Davis, ___ Ga. at ___ (852 SE2d at 521) (concluding
¶143that the trial court did not abuse its discretion in denying the
¶144defendant’s motion for out-of-time appeal based on ineffective
¶145assistance of counsel because “[n]othing in the record before the trial
¶146court supported a finding that a rational convicted defendant would
¶147have sought an appeal” where, among other things, “the record
¶148show[ed] that [the defendant] got the benefit of the plea bargain
¶149offered by the prosecutor,” “did not express any dissatisfaction with
¶150the plea agreement,” and “reserved no grounds for an appeal”). See
¶151also Fields v. United States, 577 Fed. Appx. 916, 919 (11th Cir. 2014)
¶152(per curiam) (cited in Davis, ___ Ga. at ___ (852 SE2d at 521), for the
¶153proposition that “[t]he district judge did not err in finding that plea
¶154counsel had no duty to consult under the circumstances, including
¶155that ‘no rational convicted defendant would have wanted to appeal
¶156 10 in these circumstances, because of the guilty plea and Fields having
¶157received the sentence he had sought’”).
¶158 2. McDaniel contends that the trial court erred in denying his
¶159general demurrer. However, to the extent McDaniel claims that we
¶160should review the denial of his general demurrer as part of an appeal
¶161from his convictions, we have no jurisdiction to do so. Indeed,
¶162because McDaniel “has not been granted an out-of-time appeal,”
¶163there has been “no valid notice of appeal from his convictions,” and
¶164we therefore “have no jurisdiction . . . to review any claims
¶165challenging his convictions.” Clark v. State, 310 Ga. 489, 490 n.2
¶166(852 SE2d 522) (2020). Accord Cole v. State, ___ Ga. ___, ___ n.1 (852
¶167SE2d 533, 534 n.1) (2020). Accordingly, we dismiss that portion of
¶168McDaniel’s appeal.
¶169 3. McDaniel also contends that the trial court erred in denying
¶170his motion in arrest of judgment in which he raised the same claims
¶171regarding the alleged defects in his indictment that he raised in his
¶172general demurrer. See State. v. Heath, 308 Ga. 836, 840 n.2 (843
¶173SE2d 801) (2020) (explaining that a general demurrer may be
¶174 11 “raised in the form of a motion in arrest of judgment”). But we need
¶175not decide the merits of McDaniel’s claims because his motion in
¶176arrest of judgment was untimely.
¶177 “A motion in arrest of judgment must be made during the term
¶178[of court] at which the judgment was obtained.” OCGA § 17-9-61 (b);
¶179see Ballard v. State, 304 Ga. 67, 67 (815 SE2d 824) (2018). McDaniel
¶180was convicted in November 2014 during the July term of the
¶181Paulding County Superior Court. See OCGA § 15-6-3 (31.1)
¶182(providing that the terms of court for the Paulding County Superior
¶183Court begin on the “Second Monday in January and July”). Because
¶184McDaniel filed his motion in arrest of judgment on December 11,
¶1852019, it was not filed timely, and “the trial court was without
¶186jurisdiction to rule on [it].” Ballard, 304 Ga. at 67.
¶187 When a trial court lacks jurisdiction over a motion, it should
¶188dismiss, rather than deny, the motion. 2 See Moore v. State, 303 Ga.
¶189 2 We note that a motion in arrest of judgment is an authorized motion in a criminal case, just one that “must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 (b). Therefore, assuming that there is no factor that would make such a motion a legal nullity, such as being filed
¶190 12 743, 747 (814 SE2d 676) (2018). So when a trial court is presented
¶191with a motion that it lacks jurisdiction to decide and denies the
¶192motion solely on the merits, we vacate the trial court’s order and
¶193remand with instructions to dismiss the motion. Ballard, 304 Ga.
¶194at 67-68.
¶195 Here, however, the trial court denied McDaniel’s motion in
¶196arrest of judgment on two grounds: that it was untimely and that it
¶197“substantively lack[ed] any merit.” And because the trial court
¶198denied the motion on jurisdictional grounds in addition to denying
¶199it on the merits, we do not treat the order as one “in which the trial
¶200court merely decided the merits of a motion over which it lacked
¶201jurisdiction.” Moore, 303 Ga. at 747. Accordingly, “it is not
¶202necessary for us to vacate the order and remand to the trial court
¶203with instructions to dismiss” the motion, and we simply affirm the
¶204by a defendant being represented by counsel, a motion in arrest of judgment that is filed after the term at which the judgment was obtained is merely untimely, not a legal nullity, and does not deprive this Court of jurisdiction of an appeal from a ruling on such a motion. See Dos Santos v. State, 307 Ga. 151, 156 n.5 (834 SE2d 733) (2019); Bonner v. State, 310 Ga. 426, 427 (851 SE2d 578) (2020). 13 denial of the motion instead. See id.
¶205 Judgment affirmed in part and dismissed in part. All the Justices concur.
¶206 14