¶1In the Supreme Court of Georgia
¶2 Decided: August 24, 2021
¶3 S21A0587. SIMS v. THE STATE.
¶4 COLVIN, Justice.
¶5 Stacey Sims appeals from the dismissal of his out-of-time
¶6motion to withdraw his guilty plea. For the reasons that follow, we
¶7affirm.
¶8 In 2006, Sims was indicted by a Tift County grand jury on a 36-
¶9count indictment that included numerous charges of malice murder,
¶10felony murder, aggravated assault, armed robbery, burglary, and
¶11possession of a firearm during the commission of a crime. 1 Pursuant
¶12to a plea agreement, on August 12, 2010, Sims, who was represented
¶13by counsel, pleaded guilty to six counts of malice murder, four counts
¶14 1 The crimes occurred in October 2005 when Sims and his two codefendants broke into a number of mobile homes and robbed, assaulted, and murdered a group of Hispanic immigrants. The lengthy indictment also included 20 counts of statutory aggravating circumstances supporting the State’s notice of intent to seek the death penalty. of aggravated assault, four counts of armed robbery, and three
¶15counts of burglary, in exchange for the State’s withdrawing its notice
¶16of intent to seek the death penalty. After a lengthy sentencing
¶17hearing on October 7, 2010, the trial court imposed six concurrent
¶18life sentences for the murder charges plus 200 years for the
¶19aggravated assaults, armed robberies, and burglaries. Sims did not
¶20bring a timely appeal from the judgment of conviction entered upon
¶21his guilty plea.2
¶22 2 On November 26, 2010, Sims filed a pro se motion to withdraw his guilty plea alleging that the trial court failed to advise him of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 328 (89 SCt 1709, 23 LE2d 274) (1969), and that he received ineffective assistance of counsel because counsel “failed to contest the unconstitutional arrest/invalid-insufficient arrest warrants to all charges” to which he pleaded guilty. Sims also filed a generic pro se motion for appointment of counsel. There is nothing in the record indicating that plea counsel had withdrawn from representation at the time these motions were filed, and the term of court had not yet expired. See OCGA § 15-6-3 (39) (B) (Tift County’s two terms of court begin on the second Monday in March and the second Monday in September). Consequently, the pro se filings, for which there are no rulings in the record, are legal nullities because Sims was still represented by counsel when he filed them. See White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489) (2017) (“[A]t a minimum, legal representation continues — unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see USCR 4.3 (1)-(3) — through the end of the term at which a trial court entered a judgment of conviction and sentence on a guilty plea.”).
¶23 2 In May 2017, almost seven years later, Sims filed a pro se
¶24motion3 for an out-of-time appeal alleging that plea counsel was
¶25ineffective for failing to discuss and investigate whether Sims’
¶26custodial statement was voluntarily made and that his plea was not
¶27freely and voluntarily given. Sims did not allege, however, that he
¶28was denied the effective assistance of counsel in connection with his
¶29failure to bring a timely appeal or a timely motion to withdraw his
¶30guilty plea. 4
¶31 Approximately three years later, in February 2020, Sims filed
¶32an “out-of-time motion to withdraw guilty plea.” Once again, Sims
¶33did not allege that he was denied the effective assistance of counsel
¶34in connection with his failure to bring a timely appeal or a timely
¶35motion to withdraw his guilty plea. Instead, he generally alleged
¶36“that he has been denied the opportunity to withdraw his guilty
¶37 3 There is nothing in the record indicating that plea counsel had withdrawn from representation. However, based on the timing of the filings, we assume that Sims was unrepresented. See Ricks v. State, 307 Ga. 168, 169- 170 (835 SE2d 179) (2019) (noting that where filings were entered after the term of court in which a defendant was convicted and sentenced had ended, we do not presume the defendant was represented). 4 There is no ruling on this motion in the record. Accordingly, it is not
¶38before this Court for review. 3 plea” and requested that the trial court “embrace the mandate of
¶39Collier v. State[, 307 Ga. 363 (834 SE2d 769) (2019)]” and hold a
¶40hearing on his motion. The trial court dismissed Sims’ February
¶412020 motion for lack of jurisdiction, finding that the motion was filed
¶42outside the term of court in which Sims’ guilty plea was entered.
¶43 Sims appeals the trial court’s dismissal order, alleging, for the
¶44first time, that plea counsel’s ineffectiveness and post-plea
¶45abandonment resulted in his failure to timely file a motion to
¶46withdraw his guilty plea. Sims further claims that, under Collier,
¶47he is entitled to an evidentiary hearing. We see no error in the trial
¶48court’s dismissal order.
¶49 As this Court explained in Collier,
¶50 before being entitled to an out-of-time appeal, a defendant must allege and prove an excuse of constitutional magnitude for failing to file a timely direct appeal, which usually is done by showing that the delay was caused by his trial counsel’s ineffective assistance in providing advice about or acting upon an appeal.
¶51307 Ga. at 364 (citing Bailey v. State, 306 Ga. 364, 364-365 (828
¶52SE2d 300) (2019)). Here, however, the issue before this Court is the
¶53 4 trial court’s ruling on Sims’ “out-of-time” motion to withdraw guilty
¶54plea, not a motion for an out-of-time appeal.5 In addition, until filing
¶55this appeal, Sims has never alleged that counsel’s ineffectiveness
¶56deprived him of the right to an appeal or to timely file a motion to
¶57withdraw his guilty plea. Consequently, this Court’s mandate in
¶58Collier does not apply and the trial court was not required to hold a
¶59hearing. See Terry-Hall v. State, No. S21A0790, 2021 WL 3494692
¶60(1) (Ga. Aug. 10, 2021) (explaining that there is no authority
¶61supporting the proposition “that the filing of a motion for an out-of-
¶62time appeal obliges a trial court to hold an evidentiary hearing,
¶63regardless of the allegations made in the motion”). Instead, because
¶64Sims failed to allege in the trial court that guilty plea counsel’s
¶65ineffectiveness deprived him of the right to timely withdraw his
¶66guilty plea, his claims are not preserved for appellate review. See
¶67id. (noting that “[i]t is well settled that errors not raised in the trial
¶68 5 The only procedural vehicle at issue in Collier was a motion for out-oftime appeal. An out-of-time motion to withdraw a guilty plea like the one at issue here, however, is not a recognized procedural vehicle. See Brooks v. State, 301 Ga. 748, 751 n.7 (804 SE2d 1) (2017); Foster v. State, 294 Ga. 400, 401 (754 SE2d 78) (2014). 5 court will not be heard on appeal” (citation omitted.)).
¶69 Turning to the trial court’s order, it is undisputed that Sims’
¶70February 2020 motion to withdraw his guilty plea was not timely
¶71filed. Sims was sentenced in 2010 but did not file the instant motion
¶72until 2020. See Brooks v. State, 301 Ga. 748, 751 (2) (804 SE2d 1)
¶73(2017) (“A motion to withdraw a guilty plea must be filed within the
¶74same term of court as the sentence entered on the guilty plea.”);
¶75Rubiani v. State, 279 Ga. 299, 299 (612 SE2d 798) (2005) (“It is well
¶76settled that when the term of court has expired in which a defendant
¶77was sentenced pursuant to a guilty plea, the trial court lacks
¶78jurisdiction to allow the withdrawal of the plea.”). See also OCGA §
¶7915-6-3 (39) (B) (noting that Tift County’s two terms of court begin on
¶80the second Monday in March and the second Monday in September).
¶81Based on the untimely filing of Sims’ motion to withdraw guilty plea,
¶82and his failure to allege that counsel’s constitutionally deficient
¶83performance deprived him of his right to timely file a motion to
¶84withdraw his plea, the trial court did not err in dismissing Sims’
¶85February 2020 motion to withdraw his guilty plea for lack of
¶86 6 jurisdiction.
¶87 Judgment affirmed. All the Justices concur.
¶88 7