¶1In the Supreme Court of Georgia
¶2 Decided: August 10, 2021
¶3 S21A0871. HARVEY v. THE STATE.
¶4 BETHEL, Justice.
¶5 Holly Harvey entered a negotiated guilty plea to two counts of
¶6malice murder for the killing of her grandparents, Carl and Sarah
¶7Collier. 1 While serving consecutive life sentences, Harvey sought to
¶8challenge that plea through a motion for an out-of-time appeal,
¶9 1 On September 15, 2004, a Fayette County grand jury indicted Harvey for two counts of malice murder, two counts of felony murder, and one count of armed robbery in connection with the stabbing deaths of the Colliers. On April 14, 2005, after reaching a deal with the State concerning sentencing recommendations and the disposition of other counts, Harvey entered a guilty plea to two counts of malice murder, and the trial court entered an order of nolle prosequi as to the remaining counts. The same day, the trial court sentenced Harvey to two consecutive life sentences. On June 22, 2012, Harvey filed a pro se motion for out-of-time appeal, which she later amended several times. On November 13, 2020, Harvey filed through counsel a “superseding motion to permit an out-of-time appeal from the judgment on her guilty plea.” Following a hearing on December 29, 2020, the trial court denied the motion for an out-of-time appeal on February 19, 2021. Harvey filed a notice of appeal directed to this Court on February 24, 2021, which she amended on March 10, 2021. This case was docketed in this Court to the term commencing in April 2021 and submitted for a decision on the briefs. which the trial court denied. Harvey appeals from the denial of that
¶10motion. She argues that her plea counsel provided constitutionally
¶11ineffective assistance in advising her of her appellate rights and that
¶12she is entitled to withdraw her guilty plea due to that
¶13ineffectiveness. Because Harvey’s claim that trial counsel provided
¶14constitutionally ineffective assistance fails, we affirm.
¶15 1. At the hearing on the entry of her guilty plea, Harvey
¶16testified about the following. At the time of the August 2, 2004
¶17murders, Harvey, who was 15, lived with her grandparents, the
¶18Colliers, and was in a relationship with 16-year-old Sandy
¶19Ketchum. 2 On the day of the murders, Harvey and Ketchum decided
¶20to kill the Colliers and take their truck. They tested several knives
¶21together inside the residence to determine if they were sharp enough
¶22to stab someone. Harvey testified that there were several reasons
¶23she wanted to kill her grandparents. First, she explained that she
¶24wanted to kill her grandmother because her grandmother had called
¶25her a “slut” and would often tell her that the only reason Harvey
¶26 2 Ketchum’s case is not part of this appeal. 2 lived there was so that she did not “go to [DFCS].” Harvey also
¶27testified that her grandfather hit her and that she wanted to kill her
¶28grandparents so that she and Ketchum “could be together” and
¶29“could leave.”
¶30 On the afternoon of the murders, Harvey and Ketchum smoked
¶31marijuana so that the odor would lure Harvey’s grandparents to
¶32Harvey’s downstairs bedroom to investigate. When her
¶33grandparents entered the room, Harvey retrieved a knife concealed
¶34in her pants and repeatedly stabbed her grandmother in the back.
¶35When Mrs. Collier screamed, Mr. Collier turned around, saw what
¶36was occurring, and punched Harvey in the face. Mr. Collier
¶37attempted to pin Harvey down, but Harvey stabbed him in the chest.
¶38Harvey called to Ketchum to help. Mr. Collier retreated up the stairs
¶39and Harvey handed Ketchum the knife. Fearing her grandfather
¶40was going to call 911, Harvey chased him up the stairs. Harvey
¶41testified that when she saw her grandfather in the kitchen with a
¶42telephone in his hand, she pulled the cord out of the wall, took the
¶43knife Mr. Collier had grabbed to defend himself out of his hand, and
¶44 3 started stabbing him “real fast.” Harvey testified that she was
¶45covered in blood, and that most of it came from a stab wound to her
¶46grandfather’s neck. Mr. Collier staggered around the kitchen island
¶47and collapsed onto the floor.
¶48 Meanwhile, downstairs, Ketchum had stabbed Mrs. Collier in
¶49the heart, the back of the head, and the arm. Harvey and Ketchum
¶50then stole the Colliers’ truck, took the murder weapons, and drove
¶51to Tybee Island, where the police arrested them the following day.
¶52Harvey entered a plea of guilty to two counts of malice murder, was
¶53sentenced to consecutive life terms of imprisonment, and began
¶54serving her sentences. Around 15 years later, Harvey filed a motion
¶55for an out-of-time appeal through new counsel.
¶56 Plea counsel testified as follows at the hearing on Harvey’s
¶57motion. Harvey asked plea counsel where she would be taken after
¶58she entered the guilty plea, and counsel explained what would
¶59happen. Plea counsel also told Harvey about the possibility of
¶60withdrawing her plea. Plea counsel explained to Harvey that there
¶61was a limited time to withdraw the plea and that she would need to
¶62 4 establish a basis for doing so, which plea counsel did not think
¶63existed. Plea counsel further explained to Harvey that if she chose
¶64to withdraw the guilty plea, she would have to go to trial, would
¶65likely be convicted, would likely be sentenced to additional time, and
¶66that another attorney would ultimately need to be brought in to
¶67handle the plea withdrawal. Harvey did not indicate to plea counsel
¶68that she wished to pursue this option and instead asked plea counsel
¶69what counsel recommended. Plea counsel responded that if she
¶70thought withdrawing the guilty plea was in Harvey’s best interest,
¶71then she would not have recommended entering a guilty plea to
¶72begin with. After this interaction, Harvey did not ask plea counsel
¶73to withdraw the plea or to file a direct appeal, and did not express
¶74any dissatisfaction with her sentence for many years.
¶75 In denying Harvey’s motion for an out-of-time appeal, the trial
¶76court found, among other things, that Harvey did not establish that
¶77she had reasonably demonstrated to plea counsel that she was
¶78interested in appealing. This appeal followed.
¶79 2. Harvey first argues that the trial court erred in rejecting her
¶80 5 claim that plea counsel provided constitutionally ineffective
¶81assistance by not adequately advising her of her appellate rights
¶82following entry of her guilty plea. She argues that but for counsel’s
¶83constitutionally ineffective assistance, she would have timely
¶84appealed. We conclude that Harvey’s claim lacks merit.
¶85 A trial court’s ruling on a motion to file an out-of-time appeal
¶86is reviewed for an abuse of discretion. See Davis v. State, 310 Ga.
¶87547, 548 n.4 (2) (852 SE2d 517) (2020). A defendant “is entitled to
¶88an out-of-time appeal if [her] counsel’s constitutionally deficient
¶89performance deprived [her] of an appeal of right that [s]he otherwise
¶90would have pursued.” Collier v. State, 307 Ga. 363, 364 (1) (834 SE2d
¶91769) (2019). Where, as here,
¶92 a defendant alleges that [s]he was deprived of an appeal of right that [s]he otherwise would have pursued by [her] 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). With respect to the first component of the Strickland standard, the defendant must show that [her] appeal of right was lost as a consequence of [her] counsel’s deficient performance, and the trial court must make a factual inquiry into those allegations. With
¶93 6 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, [s]he would have timely appealed.
¶94(Citation and punctuation omitted.) Davis, 310 Ga. at 549 (2).
¶95 To determine whether plea 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.”
¶96Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019) (quoting
¶97Roe v. Flores-Ortega, 528 U. S. 470, 478 (II) (A) (120 SCt 1029, 145
¶98LE2d 985) (2000)). “However, if counsel did not consult with the
¶99defendant, the court must in turn ask a second, and subsidiary,
¶100question: whether counsel’s failure to consult with the defendant
¶101itself constituted deficient performance.” (Citation and punctuation
¶102omitted.) Ringold, 304 Ga. at 879.
¶103 Counsel has a constitutionally imposed duty to consult
¶104 7 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 [she] was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. For example, a highly relevant factor in this inquiry will be whether the conviction follows a trial or 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
¶105(Citation and punctuation omitted.) Id.
¶106 Here, Harvey does not raise any argument that a duty to
¶107consult existed because “a rational defendant would want to appeal.”
¶108Id. Instead, Harvey argues that plea counsel had a constitutional
¶109duty to consult with her about an appeal because she demonstrated
¶110an interest in appealing through her post-plea questions to counsel
¶111and because she asked plea counsel whether she should move to
¶112withdraw the plea. However, under the facts of this case, we
¶113disagree that this exchange created a duty to consult beyond the
¶114scope of counsel’s responses to Harvey’s questions.
¶115 Even assuming plea counsel failed to properly consult with
¶116 8 Harvey regarding an appeal, we cannot say that the trial court
¶117abused its discretion by concluding that that failure was not
¶118constitutionally deficient because Harvey’s exchange with counsel
¶119did not demonstrate that she had an interest in appealing. Indeed,
¶120the record supports the trial court’s finding: counsel testified that,
¶121after Harvey entered her plea, she asked counsel about where she
¶122would be taken after entering her plea, and that counsel explained
¶123to her what would happen. Harvey does not point to any evidence
¶124that she expressed to counsel dissatisfaction with her plea or
¶125sentence or that she otherwise expressed to counsel an interest in
¶126appealing or otherwise challenging her plea, including when counsel
¶127explained to her in detail the option of withdrawing her plea. In
¶128addition, Harvey waited years to express any dissatisfaction with
¶129her plea agreement. Compare Palacios v. United States, 453 Fed.
¶130Appx. 887, 888-889 (11th Cir. 2011) (duty to consult where counsel
¶131acknowledged defendant was unhappy following sentencing and
¶132asked counsel about what to do next). Based on the foregoing, we
¶133determine that the trial court did not abuse its discretion in
¶134 9 concluding that Harvey did not reasonably demonstrate an interest
¶135in appealing and that plea counsel therefore did not perform
¶136deficiently. See McDaniel v. State, ___ Ga. ____ (1) (857 SE2d 479,
¶137483) (2021) (no duty to consult where, among other things,
¶138defendant never expressed an interest in appealing or a desire for
¶139plea counsel to withdraw the guilty plea). Accordingly, Harvey’s
¶140enumeration fails.
¶141 3. Harvey next argues that the Sixth Amendment to the United
¶142States Constitution requires this Court to create a right to file an
¶143out-of-term motion to withdraw a guilty plea when counsel’s
¶144deficient performance has frustrated her ability to seek review of
¶145that plea. However, because we hold that Harvey’s plea counsel did
¶146not perform deficiently in advising Harvey regarding her appellate
¶147rights, we need not address this argument.
¶148 Judgment affirmed. All the Justices concur, except Colvin, J., not participating.
¶149 10