¶1 SUPREME COURT OF GEORGIA
¶2 March 15, 2023
¶3 The Honorable Supreme Court met pursuant to adjournment.
¶4The following order was passed:
¶5 It appearing that the attached opinion decides a second-term appeal, which must be concluded by the end of the December Term, it is ordered that a motion for reconsideration, if any, must be received in the Supreme Court E-Filing/Docket (SCED) System by 2:00 p.m. on Wednesday, March 22, 2023.
¶6 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta
¶7 I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
¶8 , Clerk NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶9In the Supreme Court of Georgia
¶10 Decided: March 15, 2023
¶11 S22A0964. JOHNSON v. THE STATE.
¶12 PINSON, Justice.
¶13 Over the past two decades, this Court has applied an absolute
¶14rule that anything filed by a criminal defendant on his or her own
¶15while still represented by counsel is a “legal nullity.” In this case, we
¶16asked the parties and amici whether that rule is correct. In other
¶17words, is a pro se filing made by a defendant who is actually or
¶18presumptively represented by counsel always a nullity?
¶19 For the reasons set out below, we now answer that question in
¶20the negative. Although a defendant does not have a constitutional
¶21or statutory right to represent himself while he is also represented
¶22by counsel, nothing in our Constitution or Code prohibits such
¶23“hybrid representation,” either. And courts otherwise have broad
¶24discretion to control their processes and the conduct of those appearing before them. In keeping with these points, a few of our
¶25decisions have correctly recognized that courts retain the discretion
¶26to allow hybrid representation.
¶27 Our decisions adopting and applying the contrary rule are
¶28virtually unreasoned. At most, these decisions point out that a
¶29defendant does not have a right to hybrid representation—but of
¶30course, not having a right to do something does not mean one is
¶31prohibited from doing it. And our decisions offer nothing further in
¶32support of an absolute rule against recognizing a pro se filing by a
¶33counseled defendant. Put simply, those decisions were just wrong.
¶34 And this error is not harmless. After a judgment of conviction,
¶35defendants have a short window within which they can preserve
¶36their right of appeal, but absent an order allowing their counsel to
¶37withdraw, they are presumptively represented by counsel. In cases
¶38like this one, where counsel for some reason fails to take the steps
¶39that would preserve the right to appeal, an attentive and diligent
¶40defendant could save the appeal with a simple pro se filing, but our
¶41nullity rule leaves the defendant powerless to do so. And after our
¶42 2 recent decision in Cook v. State, 1 which eliminated the judge-made
¶43“motion for out-of-time appeal,” that direct appeal is lost—unless the
¶44defendant can somehow revive it in a habeas corpus proceeding,
¶45where the defendant no longer has the right to counsel, may assert
¶46only constitutional claims, and is subject to a four-year statute of
¶47limitations.
¶48 In sum, our absolute nullity rule has no basis in either
¶49Constitution or statute, and it is virtually unreasoned, in conflict
¶50with our own decisions, and potentially destructive of the appeal
¶51rights of criminal defendants. Stare decisis does not require us to
¶52perpetuate a legal rule that is so obviously and harmfully wrong,
¶53and so we overrule our past decisions to the extent they held that a
¶54pro se filing by a counseled defendant is always a legal nullity.
¶55 As a result, our past decisions recognizing that courts retain
¶56discretion to allow hybrid representation control. This means a court
¶57has the discretion to recognize a timely and otherwise procedurally
¶58proper pro se filing made by a defendant who is still formally
¶59 1 313 Ga. 471, 506 (5) (870 SE2d 758) (2022). 3 represented by counsel. Given the logistical and legal problems
¶60hybrid representation can cause, we expect that courts will exercise
¶61this discretion only rarely, as when trial counsel has failed to act
¶62within the prescribed time period to preserve the defendant’s right
¶63to appeal and a pro se filing would preserve that right. And when a
¶64court chooses to recognize such a filing, it should make that exercise
¶65of discretion clear on the record.
¶66 In this case, this means that the trial court must be given the
¶67chance in the first instance to determine whether to recognize any
¶68of the defendant’s pro se post-conviction filings and consider them
¶69on their merits. We therefore vacate the judgment and remand with
¶70direction, as explained more fully below.
¶71 1. Garry Deyon Johnson was convicted of malice murder and
¶72robbery in connection with the 1997 killing of Irene Shields. Johnson
¶73was sentenced to life in prison without the possibility of parole plus
¶74a consecutive 20-year term. 2 The judgment of conviction and
¶75 2 The State had sought the death penalty, but the jury recommended a sentence of life without parole. 4 sentence was entered on November 17, 2000.
¶76 On December 12, 2000, Johnson’s lead trial counsel, Jack
¶77Boone, filed a motion to withdraw, which the trial court granted on
¶78the same day. Johnson’s other appointed attorney, Luther
¶79McDaniel, did not move to withdraw at that time or any time
¶80thereafter.
¶81 The next day, Johnson filed a pro se “Extraordinary Motion for
¶82New Trial.” 3 Two days later, Johnson sent a letter to the trial court
¶83clerk requesting his trial transcript, stating that “[a]t this time I
¶84have no attorney and wish to proceed with my appeal pro se.” In
¶85January 2001, Johnson again wrote to the clerk, requesting copies
¶86of filings, and the clerk responded with the requested materials.
¶87 In September 2001, in response to further correspondence from
¶88Johnson, the clerk sent a letter informing him that an attorney, Paul
¶89David, had been appointed for his appeal and that Johnson would
¶90 3 Before this filing, Johnson had also filed a pro se “Preliminary Motion to Vacate Judgment and/or Motion for New Trial” (filed on the day the verdicts were rendered) and a pro se “Motion for Judgment Not With Standing the Verdict” (filed on the day of his sentencing). 5 need to seek copies of any additional filings from the attorney. But
¶91later correspondence from September and October reflects that
¶92Johnson continued to seek transcripts directly from the court,
¶93informing the clerk that “[t]he appointed attorney . . . has not
¶94responded to any of my requests at all.” 4 David never entered an
¶95appearance in the case.
¶96 Johnson continued corresponding with the clerk on his own.
¶97The record shows correspondence through August 2004, followed by
¶98a more-than twelve-year gap until December 2016, when Johnson
¶99sent a letter asking for various filings. In April 2017, Johnson sent
¶100a letter to the clerk stating that he had never gotten a ruling on his
¶101motions for new trial, that his trial attorneys were deceased or not
¶102practicing law, and that he was indigent.
¶103 In December 2017, Johnson’s current appellate counsel entered
¶104an appearance in the case. At counsel’s request, the court appointed
¶105 4 Evidence from Johnson’s eventual motion-for-new-trial hearing reflects that the supposed appointed attorney, Paul David, had no recollection of having been appointed and was disbarred in 2007 for, among other things, abandoning ten criminal-defendant clients during a period from 1999 through 2002. See In re David, 282 Ga. 517 (651 SE2d 743) (2007). 6 a special master to reconstruct, to the extent possible, Johnson’s
¶106trial counsel’s case file and to obtain other information, evidence,
¶107and transcripts from court staff, the court reporter, the Burke
¶108County Sheriff’s Office and District Attorney’s Office, and the GBI
¶109to assist in Johnson’s counsel’s review of the case.
¶110 In December 2018, the trial court entered a consent order
¶111granting Johnson leave to file an “out of time motion for new trial
¶112and appeal.” Hearings were held on the motion in December 2018,
¶113May 2019, and May 2021. On January 28, 2022, the trial court
¶114denied the motion.
¶115 Through counsel, Johnson filed a notice of appeal on February
¶11621, 2022. When the appeal was docketed in this Court, we initially
¶117dismissed it. We explained that the December 13, 2000 motion for
¶118new trial was a legal nullity because it was filed pro se at a time
¶119when Johnson was presumed to be represented by counsel, relying
¶120on White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489) (2017); 5 the
¶121 5 In White, we held that after conviction, a defendant is presumed to be represented by trial counsel, absent a formal withdrawal or substitution, at
¶122 7 later motion filed by counsel was untimely; and, to the extent it was
¶123filed with leave from the trial court as an out-of-time motion for new
¶124trial or appeal, those remedies were no longer cognizable after Cook.
¶125 But on reconsideration, we vacated the dismissal order and
¶126reinstated the appeal. In doing so, we asked the parties and invited
¶127amici curiae to address whether “a pro se filing made by a defendant
¶128who is actually or presumptively represented by counsel [is] always
¶129a nullity.” 6
¶130 2. The answer to this legal question should be an easy “no.”
¶131Although defendants in Georgia do not have a constitutional or
¶132statutory right to hybrid representation, neither is there any
¶133constitutional or statutory prohibition against it, and courts
¶134otherwise have broad discretion to control their processes and those
¶135appearing before them. See, e.g., OCGA § 15-1-3. But although some
¶136least through the end of the term of court in which the judgment of conviction was entered. 6 We thank the Solicitor General’s Unit of the Office of the Attorney
¶137General of Georgia, the Prosecuting Attorneys’ Council of Georgia, the Georgia Association of Criminal Defense Lawyers, and the Public Defender Council for their helpful amicus curiae briefs. 8 of our earlier decisions recognized as much, later decisions began to
¶138apply an absolute rule that pro se filings by counseled defendants
¶139are legal nullities. That shift was not only in conflict with our earlier
¶140decisions but also unreasoned and obviously wrong.
¶141 (a) We begin with the concept of “hybrid representation.”
¶142Speaking generally, hybrid representation refers to when a
¶143defendant acts on his or her own behalf in court while he is at the
¶144same time represented by counsel. See, e.g., Cargill v. State, 255 Ga.
¶145616, 622 (3) (340 SE2d 891) (1986), overruled on other grounds,
¶146Manzano v. State, 282 Ga. 557, 560 (3) (b) (651 SE2d 661) (2007).
¶147 In the courts of our State today, there is no right to hybrid
¶148representation. No such right is recognized under the United States
¶149Constitution because asserting the right to be represented by
¶150counsel is considered a waiver of the Sixth Amendment right of self-
¶151representation. See McKaskle v. Wiggins, 465 U.S. 168, 183 (104 SCt
¶152944, 79 LE2d 122) (1984); Cargill, 255 Ga. at 622 (3); Burney v.
¶153State, 244 Ga. 33, 35-36 (2) (257 SE2d 543) (1979). In the past, a
¶154right to hybrid representation was recognized under our state
¶155 9 Constitution, which provided that “[n]o person shall be deprived of
¶156the right to prosecute or defend his own cause in any of the courts of
¶157this state, in person, by attorney, or both.” Ga. Const. of 1976, Art.
¶158I, Sec. I, Par. IX (emphasis added). See Burney, 244 Ga. at 36-37 (2)
¶159(construing “the express terms” of the 1976 Constitution as
¶160guaranteeing the right to represent oneself even while being
¶161represented by counsel); see also Bloomfield v. Liggett & Myers, Inc.,
¶162230 Ga. 484, 484 (198 SE2d 144) (1973) (noting that this same
¶163provision was first adopted in the Constitution of 1877). But the
¶164right was eliminated from our current Constitution, which contains
¶165a provision almost identical to the earlier ones but notably omits the
¶166key phrase “or both”:
¶167 No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.
¶168Ga. Const. of 1983, Art. I, Sec. I, Par. XII. See Cargill, 255 Ga. at
¶169622-623 (3) (noting elimination of “or both” language from 1983
¶170version). That revision was apparently proposed in order to
¶171“eliminate the problems created by” allowing “an individual who had
¶172 10 an attorney representing him at trial to assert his right of self-
¶173representation . . . and actively participate in the trial as co-counsel.”
¶174Nelms v. Georgian Manor Condo. Assn., Inc., 253 Ga. 410, 412-413
¶175& n.7 (321 SE2d 330) (1984). And soon after our current
¶176Constitution was ratified, we held that this change indeed meant
¶177that “a person no longer has the right to represent himself and also
¶178be represented by an attorney, i.e., the right to act as co-counsel.”
¶179Cargill, 255 Ga. at 623 (3) (citation and punctuation omitted). Accord
¶180Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989) (“a
¶181layperson does not have the right to represent himself and also be
¶182represented by an attorney”).7
¶183 But the mere absence of a right to hybrid representation says
¶184nothing about whether hybrid representation may be permitted. Put
¶185 7 We have, however, held that litigants who are lawyers cannot be barred from representing themselves as co-counsel. See Seagraves, 259 Ga. at 39; Cherry v. Coast House, Ltd., 257 Ga. 403, 406 (3) (359 SE2d 904) (1987). In those situations, trial courts have broad authority to impose limits on the mechanics of the hybrid representation to prevent the potential for courtroom disorder and ensure that the litigant and his counsel “speak with one voice.” Id. See also Seagraves, 259 Ga. at 39 (recognizing right to hybrid representation for lawyer-litigants, subject to trial court’s authority to impose limits “‘to insure the orderly disposition of matters before it’”). 11 another way, that a court may deny a defendant’s request for hybrid
¶186representation without violating a right does not answer the
¶187separate question whether a court may allow hybrid representation
¶188in any given case. As to that question, no one before us has identified
¶189anything in our Constitution or Code that prohibits hybrid
¶190representation. And in fact, our Code recognizes that a court retains
¶191wide discretion to control its “processes” as well as “the conduct of
¶192its officers and all other persons connected with a judicial proceeding
¶193before it.” OCGA § 15-1-3 (4), (6). In short, even absent a right to
¶194hybrid representation, we are aware of no constitutional or statutory
¶195provision that precludes a court from exercising discretion to allow
¶196it when appropriate.
¶197 Some of our decisions have recognized this distinction. Soon
¶198after we first recognized that the right to hybrid representation had
¶199been eliminated from the current Georgia Constitution, we made
¶200clear that this change did not affect trial courts’ discretion to allow
¶201hybrid representation. As we put it at the time, “although a
¶202defendant may not insist on acting as co-counsel, the trial court may,
¶203 12 as here, allow him to do so.” Hance v. Kemp, 258 Ga. 649, 650 (1)
¶204(373 SE2d 184) (1988). We explained that, as with the choice to
¶205proceed pro se, “the record should reflect that [the defendant’s]
¶206choice to proceed as co-counsel was made after the defendant was
¶207made aware of his right to counsel and the dangers of proceeding
¶208without counsel.” Id. (cleaned up). Since then, a few of our decisions
¶209have reaffirmed these points. See Isaacs v. State, 259 Ga. 717, 731
¶210(24) (386 SE2d 316) (1989) (explaining that “[e]ven if the court
¶211allows a defendant to act as co-counsel,” the court retains discretion
¶212to require just one counsel to conduct voir dire of each juror because
¶213the defendant “does not have the right to act as co-counsel”); Colwell
¶214v. State, 273 Ga. 634, 638-639 (3) (544 SE2d 120) (2001) (rejecting
¶215argument that “a hybrid form of representation was forced upon” the
¶216defendant, but explaining that “although a defendant may not insist
¶217on acting as co-counsel, the trial court may allow him or her to do so
¶218once he or she has been advised of his or her right to counsel and of
¶219the dangers inherent in proceeding as one’s own co-counsel” (cleaned
¶220up)); Rivera v. State, 282 Ga. 355, 362-363 (8) (647 SE2d 70) (2007)
¶221 13 (same).
¶222 The above decisions recognized that courts have discretion to
¶223allow hybrid representation when a defendant seeks to actively
¶224represent himself as co-counsel. A couple of other decisions
¶225suggested that this discretion also covered the decision whether to
¶226allow the more limited form of hybrid representation where a
¶227counseled defendant seeks merely to submit his own pro se filings.
¶228In Eagle v. State, 264 Ga. 1, 3 (5) (440 SE2d 2) (1994), the defendant
¶229filed a pro se brief in addition to the one submitted by his counsel.
¶230Noting that the defendant was represented by counsel and that he
¶231had no right to hybrid representation, we said that “the additional
¶232claims raised in Eagle’s pro se brief will not be considered.” Id. And
¶233in Smith v. State, 267 Ga. 372, 378 (12) (477 SE2d 827) (1996), we
¶234declined to “separately consider[]” a counseled defendant’s
¶235“untimely supplemental enumerations of error filed pro se.”
¶236Although we declined to recognize the pro se filings of counseled
¶237defendants in these decisions, we did not suggest that a court’s
¶238discretion to allow hybrid representation (or not) worked any
¶239 14 differently for pro se filings than it would for defendants who wanted
¶240to serve as active co-counsel.
¶241 (b) But our decisions on pro se filings by counseled defendants
¶242soon lost the thread.
¶243 It started innocently enough: In Johnson v. State, 266 Ga. 775,
¶244779 (9) (470 SE2d 637) (1996), we held that a trial court erred in
¶245“addressing the merits” of a motion for new trial filed pro se by a
¶246counseled defendant on the issue of ineffectiveness of trial counsel
¶247“while [the defendant] was still being represented by the trial
¶248counsel.” This conclusion was not necessarily inconsistent with our
¶249prior decisions acknowledging a court’s discretion to allow hybrid
¶250representation as a general matter. The problem in Johnson was not
¶251the defendant’s attempt at hybrid representation as such, but that
¶252the defendant had brought—and the trial court had addressed—a
¶253pro se claim of ineffective assistance based on the conduct of the very
¶254counsel who was still representing him. Id. And our conclusion was
¶255not that the pro se filing itself was entirely without effect—to the
¶256contrary, we remanded the case for the trial court to “consider the
¶257 15 allegation of ineffective assistance” from the pro se filing on remand
¶258once the defendant was represented by new counsel. Id. (emphasis
¶259added). In short, Johnson stood for the narrow proposition that a
¶260trial court could not “address” a pro se claim of ineffective assistance
¶261of trial counsel while the defendant was still represented by that
¶262same trial counsel. See id. Accord Kennebrew v. State, 267 Ga. 400,
¶263402 (2) (480 SE2d 1) (1996).
¶264 But after Johnson was decided, we began citing it for a
¶265different and much broader proposition: an absolute rule that pro se
¶266filings made while a defendant is represented by counsel are
¶267“invalid,” Ware v. State, 267 Ga. 510, 511 & n.2 (2) (480 SE2d 599)
¶268(1997), or put another way, “unauthorized and without effect,”
¶269Cotton v. State, 279 Ga. 358, 361 (5) (613 SE2d 628) (2005). See also
¶270Britt v. Conway, 283 Ga. 474, 476 n.3 (660 SE2d 526) (2008) (citing
¶271Johnson in concluding that pro se filing challenging trial court order
¶272did not put that order “at issue” on appeal because “an appellant
¶273does not have the right to be represented by counsel and also to
¶274represent himself” (cleaned up)). More recently, we have described
¶275 16 such filings as “legal nullities.” See, e.g., Sims v. State, 312 Ga. 303,
¶276303 n.2 (862 SE2d 507) (2021) (pro se filings made by counseled
¶277defendant were “legal nullities”); White v. State, 302 Ga. 315, 319 (2)
¶278(806 SE2d 489) (2017) (trial court correctly treated pro se filings by
¶279counseled defendant as “legal nullities”). And based on this rule, we
¶280have held that trial courts err when they rule on the merits of such
¶281filings. See, e.g., Meheux v. State, 309 Ga. 857, 858-859 (848 SE2d
¶282844) (2020) (vacating order ruling on merits of counseled defendant’s
¶283pro se motion for new trial); Ringold v. State, 309 Ga. 443, 445-446
¶284(847 SE2d 181) (2020) (vacating order ruling on counseled
¶285defendant’s pro se motion to withdraw plea); Pounds v. State, 309
¶286Ga. 376, 384 (4) (846 SE2d 48) (2020) (holding that trial court was
¶287not authorized to rule on counseled defendant’s pro se motion for
¶288new trial); Ricks v. State, 307 Ga. 168, 169-170 (835 SE2d 179)
¶289(2019) (vacating order ruling on counseled defendant’s pro se
¶290filings); Dos Santos v. State, 307 Ga. 151, 160 (6) (834 SE2d 733)
¶291(2019) (vacating order ruling on counseled defendant’s pro se motion
¶292to withdraw guilty pleas).
¶293 17 Unlike some of our earlier decisions addressing hybrid
¶294representation after the Constitution of 1983 was ratified, these
¶295decisions leave no apparent room for courts to exercise discretion to
¶296allow hybrid representation—not even in the limited form of a pro
¶297se filing. Instead, they each rejected the pro se filing at issue based
¶298only on the fact that a defendant was counseled when the pro se
¶299filing was made. See, e.g., Sims, 312 Ga. at 303 n.2 (“the pro se
¶300filings . . . are legal nullities because Sims was still represented by
¶301counsel when he filed them”) (emphasis added); White, 302 Ga. at
¶302319 (2) (“The trial court therefore correctly treated [the defendant’s]
¶303pro se filings as legal nullities, because he was represented by counsel
¶304when he made them.”) (emphasis added); Johnson v. State, 300 Ga.
¶305252, 256 n.6 (2) (794 SE2d 60) (2016) (“Appellant was represented by
¶306counsel when he filed that [speedy trial] demand, so it was invalid.”)
¶307(emphasis added); State v. Porter, 288 Ga. 524, 529 n.2 (2) (c) (4) (705
¶308SE2d 636) (2011) (“This [speedy trial] demand was filed while [the
¶309defendant] was represented by counsel. For this reason, the [courts
¶310below] correctly ruled that the demand had no legal effect.”)
¶311 18 (emphasis added); Williams v. Moody, 287 Ga. 665, 668-669 (2) (697
¶312SE2d 199) (2010) (“A pro se motion filed by a convicted defendant
¶313while represented by counsel is ‘unauthorized and without effect.’”);
¶314Cotton, 279 Ga. at 361 (“Since he was represented by new appellate
¶315counsel at the time he filed this pro se motion, however, it was
¶316unauthorized and without effect.”) (emphasis added).
¶317 The absolute rule applied in these decisions—that a pro se
¶318filing by a counseled defendant is a nullity, full stop—is not only in
¶319outright conflict with our earlier decisions recognizing a court’s
¶320discretion to allow hybrid representation. Compare Rivera, 282 Ga.
¶321at 362 (8); Colwell, 273 Ga. at 638-639 (3); Isaacs, 259 Ga. at 731
¶322(24); Hance, 258 Ga. at 650 (1). It is also based in an explanation
¶323that is both cursory and obviously wrong. When these decisions offer
¶324any support at all for this absolute rule, they pin it only on the point
¶325that a defendant in Georgia no longer has the right to hybrid
¶326representation. See, e.g., Lopez v. State, 310 Ga. 529, 536 (5) (852
¶327SE2d 547) (2020) (“[A] criminal defendant ‘does not have the right
¶328to represent himself and also be represented by an attorney.’ [Cit.]
¶329 19 Thus, a pro se filing by a represented party is a legal nullity without
¶330effect.”) (emphasis added); Dos Santos, 307 Ga. at 154 (3) (“Dos
¶331Santos’s pro se motion to withdraw her pleas was unauthorized and
¶332without effect, because she had no right to represent herself at the
¶333same time she was represented by a lawyer”) (emphasis added);
¶334Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“A
¶335criminal defendant in Georgia does not have the right to represent
¶336himself and also be represented by an attorney, and pro se filings by
¶337represented parties are therefore ‘unauthorized and without effect.’”)
¶338(emphasis added); see also White, 302 Ga. at 319 (2) (quoting that
¶339exact language from Tolbert); Smith v. State, 297 Ga. 214, 216 (4)
¶340(773 SE2d 209) (2015) (same). This is true, but it is not support for
¶341the absolute rule that follows. Not having a protected right to do
¶342something, without more, does not mean one is not allowed to do
¶343that thing. Yet these decisions offer nothing else to justify a flat
¶344prohibition against pro se filings made by counseled defendants.
¶345 (c) This wrong turn in our precedent is not a harmless one.
¶346 The problem rears its head in the important period right after
¶347 20 the entry of final judgment on a defendant’s convictions and
¶348sentence. During that period, transitions in legal representation are
¶349common, and the defendant also faces tight deadlines for pursuing
¶350post-conviction review or an appeal. See, e.g., OCGA §§ 5-6-38 (a)
¶351(30-day deadline from entry of judgment for filing notice of appeal);
¶3525-5-40 (a) (30-day deadline from entry of judgment for filing motion
¶353for new trial); 17-9-61 (b) (motion in arrest of judgment must be
¶354made during term in which judgment entered); McKiernan v. State,
¶355286 Ga. 756, 757 (692 SE2d 340) (2010) (explaining that “a motion
¶356to withdraw a guilty plea may be entertained by the trial court . . .
¶357within the same term of court in which the plea was entered and the
¶358defendant sentenced”). See also White, 302 Ga. at 318 (2) (describing
¶359the post-conviction period as “a point in the proceeding when
¶360important decisions need to be made and actions potentially taken,
¶361often with short deadlines” for the filing of post-trial or post-plea
¶362motions or notices of appeal).If everything works like it is supposed
¶363to, either trial counsel or new appellate counsel, after conferring
¶364with the defendant, makes the proper filing to seek any appropriate
¶365 21 review. But sometimes that doesn’t happen: although a defendant
¶366wishes to appeal, or move for a new trial, or withdraw a guilty plea,
¶367counsel fails to timely file the proper papers out of neglect or for any
¶368number of other reasons. In those cases, a defendant’s pro se filing
¶369could save the right to these important kinds of review, including a
¶370defendant’s one shot at a direct appeal. But our absolute rule deems
¶371such filings nullities if the defendant is still represented by counsel,
¶372eliminating that self-help option for preserving the defendant’s
¶373rights.
¶374 And some of our more recent decisions have foreclosed
¶375arguments that might have relieved the harsh effect of that rule.
¶376First, we have rejected arguments that a pro se filing could be
¶377treated as valid where a defendant who was formally represented at
¶378trial was effectively without counsel at the time of a post-conviction
¶379filing. In Tolbert, we held that a trial court’s on-the-record
¶380“indication” that it would grant a motion to remove counsel and
¶381counsel’s later filing of a motion to withdraw were not enough to
¶382show that the defendant was no longer represented. Tolbert, 296 Ga.
¶383 22 at 362 (3). Instead, we concluded that the defendant remained
¶384represented—making any pro se filings nullities—because he could
¶385not point to a “formal withdrawal” demonstrated by an order
¶386allowing withdrawal. Id. And then in White, we held that “at a
¶387minimum,” a defendant continues to be represented by his trial
¶388counsel until the end of the term of court in which his judgment of
¶389conviction is entered, “unless interrupted by entry of an order
¶390allowing counsel to withdraw or compliance with the requirements
¶391for substitution of counsel.” 302 Ga. at 319 (2). 8 So when a defendant
¶392has been abandoned by counsel during the critical post-conviction
¶393period, these rules can interact with our nullity rule to prevent even
¶394an attentive and diligent defendant from preserving his right to
¶395 8 We have carved out a narrow exception to White’s rule that applies “when a criminal defendant invokes his constitutional right to self-representation and that request is granted on the record in open court.” Walker v. State, 308 Ga. 749, 753 (1) (843 SE2d 561) (2020). In Walker, we held that a pro se notice of appeal was valid, despite the absence of an order relieving counsel of his duties, where the defendant had expressly invoked his right to self-representation on the record after his sentence was pronounced, and the trial court, after engaging in a colloquy with the defendant, made a finding on the record that the defendant was freely, intelligently, and knowingly waiving his right to counsel. Id. Under these circumstances, the defendant’s pro se motion for new trial, filed one day after the trial court’s on-the-record finding, was deemed valid. Id. 23 appeal. See, e.g., Jones, 308 Ga. at 338 (noting that formal
¶396representation continued absent an order allowing withdrawal or
¶397proper substitution, and even “if Jones in fact was abandoned by her
¶398counsel while she was still formally represented, she could not have
¶399filed a notice of appeal”).
¶400 We acknowledged this “unfortunate” consequence in Dos
¶401Santos, but we pointed out that defendants whose appeal rights
¶402were frustrated by ineffective assistance of counsel “have a remedy”
¶403because they “may seek an out-of-time appeal in the trial court or in
¶404habeas corpus.” Dos Santos, 307 Ga. at 159 (5). See, e.g., Jones, 308
¶405Ga. at 338 (holding that defendant was entitled to merits
¶406consideration of her motion for out-of-time appeal where she alleged
¶407her failure to file an appeal was due to trial counsel’s abandoning
¶408her after sentencing). 9 The option of seeking an out-of-time appeal
¶409 9 In the guilty-plea context, we have also admonished criminal defense lawyers that they “cannot simply abandon their . . . clients immediately after the defendants enter guilty pleas and are sentenced” and suggested that “plea counsel may protect their client’s interests by filing a timely, bare-bones ‘placeholder’ motion to withdraw guilty plea,” which preserves the defendant’s right to pursue such relief and “might be amended later (by conflict-free new counsel if necessary).” Dos Santos, 307 Ga. at 157, 159 (5). Accord Ringold, 309 Ga. at 446 n.2. 24 in the trial court, however, is no more. Last year, this Court held
¶410that the motion for out-of-time appeal was “not a legally cognizable
¶411vehicle for a convicted defendant to seek relief for alleged
¶412constitutional violations” in the court of conviction. Cook v. State,
¶413313 Ga. 471, 506 (5) (870 SE2d 758) (2022). Although Cook did not
¶414eliminate the out-of-time appeal as a remedy in habeas proceedings,
¶415it significantly narrowed the opportunities for defendants to revive
¶416appeal rights lost as a result of ineffective counsel. See Dougherty v.
¶417State, 315 Ga. 188, 196 n.6 (880 SE2d 523) (2022) (Ellington, J.,
¶418concurring) (alluding to the effect of eliminating motions for out-of-
¶419time appeal on defendants whose counsel abandon them post-
¶420conviction).
¶421 In sum, after Cook, the potential that the nullity rule will apply
¶422in a way that prevents defendants from ever exercising their rights
¶423of appeal and other post-conviction review is even greater. In cases
¶424where a defendant’s counsel fails to preserve those rights—whether
¶425because of abandonment or some other reason—and the defendant
¶426cannot secure an order allowing withdrawal in time, those rights are
¶427 25 lost. And the sole remedy for such a defendant is in habeas corpus,
¶428a proceeding in which the defendant no longer enjoys the right to
¶429counsel, may assert only constitutional claims, and is subject to a
¶430four-year statute of limitations. See OCGA § 9-14-42 (a), (c) (making
¶431habeas relief available for asserting “substantial denial of [one’s]
¶432rights under the Constitution of the United States or of this state”
¶433and requiring such actions to be brought “within four years in the
¶434case of a felony”); Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d
¶435186) (1999) (noting that habeas is “‘not designed as a substitute for
¶436direct review’” and that “there is no federal or state constitutional
¶437right to appointed counsel in Georgia habeas corpus proceedings”
¶438(citation and punctuation omitted)). 10
¶439 3. For all of these reasons, we asked the parties in this case and
¶440amici to address the nullity rule in its current form. Their collective
¶441response is telling. Although they differ some in their views on the
¶442 10 The extraordinary motion for new trial is not a viable solution for every forfeited direct appeal because we have held that such motions are not vehicles for asserting constitutional claims. See Mitchum v. State, 306 Ga. 878, 885 (1) (c) (834 SE2d 65) (2019). 26 wisdom of the current nullity rule as a policy matter and on potential
¶443alternatives to it, no one appears to dispute what we have covered
¶444so far: (1) Nothing in our Constitution or Code either prohibits
¶445hybrid representation as a general matter or requires treating pro
¶446se filings by counseled defendants as always nullities. (2) To the
¶447contrary, courts have broad discretion to control their processes and
¶448the conduct of those before them. (3) Our decisions adopting and
¶449applying the nullity rule offer no reasoning in support of it beyond
¶450the implicit and obviously wrong suggestion that the absence of a
¶451right to hybrid representation somehow prohibits it. (4) There is no
¶452serious argument that these decisions can be reconciled with our
¶453earlier decisions recognizing a court’s discretion to allow hybrid
¶454representation. And (5) in the current legal landscape, the rule
¶455works real and irreparable harm to the appeal rights (and other
¶456rights of review) of criminal defendants whose counsel have
¶457abandoned them or otherwise failed to discharge their duties.
¶458 So the question reduces to whether to follow our decisions that
¶459have applied the absolute nullity rule. When we consider whether to
¶460 27 follow past decisions, stare decisis is the strong default rule. The
¶461doctrine not only keeps our law more consistent and stable, but it is
¶462essential to preserving the rule of law. See State v. Jackson, 287 Ga.
¶463646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important
¶464principle that promotes the rule of law . . . .”); Cobb v. State, 187 Ga.
¶465448, 452 (200 SE 796) (1939) (“The application of the doctrine of
¶466stare decisis is essential to the performance of a well-ordered system
¶467of jurisprudence.”); Ammons v. State, 315 Ga. 149, 169 (880 SE2d
¶468544) (2022) (Pinson, J., concurring) (following past decisions
¶469“promotes a system of equal treatment under the law rather than
¶470one built on ‘arbitrary discretion’” (citing The Federalist No. 78, at
¶471529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)).
¶472 In rare cases, however, following a past decision would do more
¶473harm to the rule of law than overruling it would. Our nullity rule
¶474presents one of those rare cases. As we have explained at length
¶475above, that rule is not only wrong but obviously so; unreasoned
¶476(bordering on accidental); in conflict with our own decisions; and can
¶477and does work genuine harm to important review rights of even the
¶478 28 most attentive and diligent criminal defendants. Moreover, stare
¶479decisis applies with less force to a judge-made rule that governs only
¶480“internal Judicial Branch operations” and so does not affect parties’
¶481out-of-court affairs. Pearson v. Callahan, 555 U.S. 223, 233-234 (II)
¶482(B) (129 SCt 808, 172 LE2d 565) (2009) (reasoning that “revisiting
¶483precedent is particularly appropriate” where doing so “would not
¶484upset expectations, the precedent consists of a judge-made rule that
¶485was recently adopted to improve the operation of the courts, and
¶486experience has pointed up the precedent’s shortcomings”). Accord
¶487Cook, 313 Ga. at 490-491 (3) (c). Compare Olevik v. State, 302 Ga.
¶488228, 245 (2) (c) (iv) (806 SE2d 505) (2017) (explaining that reliance
¶489interests are an “important consideration for precedents involving
¶490contract and property rights” because “parties may have acted in
¶491conformance with existing legal rules in order to conduct
¶492transactions”). For all of these reasons, stare decisis does not require
¶493preserving the nullity rule. See Ammons, 315 Ga. at 171-172
¶494(Pinson, J., concurring) (“If the past decision in question is
¶495unreasoned, or if it disregards the basic legal principles that courts
¶496 29 use to do law, the argument for overruling is easier to make.”); Cook,
¶497313 Ga. at 487 (3) (b) (overruling decisions recognizing motions for
¶498out-of-time appeal because that remedy “ha[d] neither a statutory
¶499nor a common-law basis,” and the decisions recognizing it failed to
¶500acknowledge the Habeas Corpus Act, were “devoid of reasoning
¶501showing why [the remedy] could or should exist,” and “ignored
¶502precedent from this Court” rejecting such a remedy); Gilliam
¶503v. State, 312 Ga. 60, 63 (860 SE2d 543) (2021) (overruling decision
¶504that took jurisdiction over certain appeals for “judicial economy,”
¶505“ignor[ing] the constitutional parameters of [the Court’s]
¶506jurisdiction without any significant analysis”); Pounds, 309 Ga. at
¶507382 (3) (overruling decision regarding effect of untimely motion for
¶508new trial as “unsound” and “inconsistent with applicable legal
¶509principles articulated in our other case law in this area”); State v.
¶510Hudson, 293 Ga. 656, 661-662 (748 SE2d 910) (2013) (overruling
¶511decision that “contain[ed] no analysis supporting its adoption of the
¶512count-by-count approach but instead adopt[ed] that approach as
¶513though there were no other alternative” (emphasis in original)).
¶514 30 In considering whether to overrule precedent, this Court has
¶515typically considered “factors such as” the “soundness” of the
¶516precedent’s reasoning, its “age,” its “workability,” and “the reliance
¶517interests at stake.” Jackson, 287 Ga. at 658. This “list of factors . . .
¶518has never purported to be exclusive,” Cook, 313 Ga. at 485, and
¶519several of us have expressed concerns with those factors, or at least
¶520with how they are usually applied, see Ammons, 315 Ga. at 173 n.21
¶521(Pinson, J., concurring) (criticizing factors as “inherently malleable”
¶522and not focused on rule-of-law concerns with overruling precedent);
¶523Cook, 313 Ga. at 510 (Peterson, J., dissenting). But in any event,
¶524those factors cut in favor of overruling the precedent at issue here,
¶525for many of the reasons explained at length above. We have already
¶526explained that the rule’s reasoning was “unsound,” which this Court
¶527has called “the most important factor” in that analysis. Id. We have
¶528overruled a number of decisions similar in age to the decisions from
¶529the 1990s and 2000s that adopted and applied the nullity rule. See,
¶530e.g., Cook, 313 Ga. at 503 (3) (e) (overruling 27-year-old precedent);
¶531City of Cumming v. Flowers, 300 Ga. 820, 832 (6) (a) (797 SE2d 846)
¶532 31 (2017) (overruling 21-year-old precedent); Ga. Dept. of Nat.
¶533Resources v. Ctr. for a Sustainable Coast, 294 Ga. 593, 601-602 (2)
¶534(755 SE2d 184) (2014) (overruling 19-year-old precedent); Jackson,
¶535287 Ga. at 660 (6) (overruling nearly 30-year-old precedent). Rules
¶536of appellate procedure usually do not create significant reliance
¶537interests. See Pounds, 309 Ga. at 382 (3) (precedent about legal
¶538effect of late-filed motions for new trial and orders disposing of such
¶539motions involved only appellate procedure that did not implicate
¶540significant reliance interests); Southall v. State, 300 Ga. 462, 467 (1)
¶541(796 SE2d 261) (2017) (precedent about effect of prematurely filed
¶542motions for new trial involved only an issue of appellate procedure
¶543that did not implicate significant reliance interests). And as for
¶544“workability,” however easy to administer an absolute nullity rule
¶545might be, it does not adequately account for the high cost to criminal
¶546defendants whose lawyers fail to act to preserve their appeal rights
¶547during the critical post-conviction period.
¶548 So we overrule our past decisions to the extent that they hold
¶549that pro se filings by counseled defendants are always legal
¶550 32 nullities. 11
¶551 4. Having overruled the nullity rule in its absolute form, we are
¶552left with our past decisions that correctly recognized that courts
¶553retain discretion to allow hybrid representation. See Rivera, 282 Ga.
¶554 11 Those decisions include but are not limited to Meheux, 309 Ga. at 858; Ringold, 309 Ga. at 446; Pounds, 309 Ga. at 384 (4); Ricks, 307 Ga. at 169-170; and Dos Santos, 307 Ga. at 154-155 (3). We also disapprove any language in our prior decisions suggesting that pro se filings by counseled defendants are always nullities. See, e.g., Dougherty, 315 Ga. at 188 (noting that earlier appeal was dismissed because pro se motion for new trial that trial court had ruled on was “‘a legal nullity’”); Walker, 308 Ga. at 752-753 (1) (noting with tacit approval our holding in Tolbert that because “Tolbert was represented by counsel when he filed his pro se notice of appeal,” his notice of appeal was “a legal nullity”); Jones, 308 Ga. at 338 (noting in dicta that defendant “could not have filed” a notice of appeal while she was still formally represented by counsel and that “any pro se filing in this regard would have been a nullity”); Sims v. State, 312 Ga. 303, 303 n.2 (862 SE2d 507) (2021) (noting in dicta that pro se motions that trial court had not ruled on were “legal nullities”); Howard v. State, 307 Ga. 12, 12 n.1 (834 SE2d 11) (2019) (noting that earlier appeal was dismissed because pro se motion for new trial that trial court had ruled on was “a nullity”); Veal v. State, 301 Ga. 161, 167 (3) n.3 (800 SE2d 325) (2017) (noting in dicta that defendant’s pro se motion to vacate conviction “had no legal effect”); State v. Porter, 288 Ga. 524, 529 n.2 (2) (c) (4) (705 SE2d 636 (2011) (noting in dicta that courts below had correctly ruled that pro se defendant’s speedy-trial demand “had no legal effect”). Similarly, any Court of Appeals decisions are overruled to the extent they hold that pro se filings by counseled defendants are always legal nullities, and any language in any Court of Appeals decisions suggesting the same is disapproved.
¶555 33 at 362 (8); Colwell, 273 Ga. at 638-639 (3); Isaacs, 259 Ga. at 731
¶556(24); Hance, 258 Ga. at 650 (1). See also Eagle, 264 Ga. at 3 (5);
¶557Smith, 267 Ga. at 377 (12). That includes the discretion to recognize
¶558pro se filings: a pro se filing by a counseled defendant is not a legal
¶559nullity per se. Instead, consistent with a court’s general discretion to
¶560control its processes and the conduct of those who appear before it,
¶561a court has the discretion to recognize a timely and otherwise
¶562procedurally proper pro se filing made by a defendant who is still
¶563formally represented by counsel. 12
¶564 We expect that courts will exercise discretion to recognize pro
¶565se filings by counseled defendants sparingly. As some amici note,
¶566hybrid representation usually “creates more problems than [it] can
¶567solve,” United States v. Couch, 758 Fed. App’x 654, 656-657 (10th
¶568 12 The Attorney General contends that allowing pro se post-conviction filings would “muddy counsel’s ethical and constitutional obligations”— effectively letting attorneys off the hook for protecting their clients’ appeal rights by giving clients the ability to fend for themselves. But this rule has no effect on counsel’s ethical duties to their clients, including their duty to preserve their clients’ appeal rights. See Dos Santos, 307 Ga. at 157 (5) (“Defense counsel are obligated to continue to represent their clients at least until the time for [seeking] post-conviction remedies expires (and if such a remedy is timely pursued, until it is resolved).”).
¶569 34 Cir. 2018), and courts undoubtedly are sensitive to those problems,
¶570which may include the potential for undue delay, conflicting claims
¶571and arguments, and more. See, e.g., State v. Debra A.E., 523 NW2d
¶572727, 737 (Wis. 1994) (noting that “the arguments raised in a pro se
¶573brief may contradict and undermine the issues advanced in counsel’s
¶574brief” and “the consideration of every argument that a defendant
¶575chooses to raise, in addition to those an attorney submits, could
¶576strain judicial resources”); California v. Clark, 833 P2d 561, 637
¶577(Cal. 1992) (citing “undesirability of fruitlessly adding to the
¶578burdens of this court the time-consuming task of reading pro se
¶579documents” submitted by counseled defendants). But any such
¶580concerns may give way when recognizing a pro se filing would
¶581preserve a right of appeal that would otherwise be lost through no
¶582fault of the defendant. Exercising discretion under these
¶583circumstances would seem to us squarely “in the furtherance of
¶584justice.” OCGA § 15-1-3 (4).13
¶585 Such appeal-preserving filings include not only a notice of appeal but 13
¶586also those motions, such as motions for new trial, that extend the time for filing
¶587 35 Because we expect that the recognition of pro se filings by
¶588counseled defendants will be the exception and not the rule, unless
¶589the record indicates that the court recognized the filing, it will be
¶590presumed that the court did not do so. So when a court chooses to
¶591recognize such a filing—as when trial counsel has failed to act
¶592within the prescribed time period to preserve the defendant’s right
¶593to appeal and the defendant timely makes a pro se filing that would
¶594preserve that right—it should make that exercise of discretion clear
¶595on the record. 14 That decision whether to recognize a pro se filing by
¶596a notice of appeal. See OCGA § 5-6-38 (a) (“when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice [of appeal] shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion”). For convictions on a guilty plea, a motion to withdraw the plea should also be considered an appeal-preserving filing. 14 This is not to say that allowing an appeal-preserving pro se filing alone
¶597triggers a Faretta hearing, see Faretta v. California, 422 U.S. 806 (95 SCt 2525, 45 LE2d 562) (1975), or requires an express finding that the defendant made the choice to file knowingly and intelligently. Unlike the decision to allow active self-representation—whether as co-counsel or fully pro se—recognizing the validity of a pro filing merely allows the filing to preserve the defendant’s rights and may well invite further inquiry from the court as to the status of the defendant’s legal representation. Compare Wiggins v. State, 298 Ga. 366, 369 (2) (782 SE2d 31) (2016) (citing Faretta for principle that “[w]hen a defendant asserts the right to self-representation, it is the responsibility of the trial judge to ensure that the decision to dismiss counsel and proceed pro se has been knowingly and intelligently made and that the defendant has made the choice
¶598 36 a counseled defendant is committed to the court’s sole discretion. 15
¶599 In so holding, “we do not undo what has been done” with
¶600respect to any pro se filings in cases that have already been
¶601adjudicated through direct appeal. See Cook, 313 Ga. at 504 (3) (e).
¶602We have “long followed” the “pipeline” approach for determining
¶603how new rules of criminal procedure apply to criminal cases. Id. at
¶604504 (4). Under this approach, “a new state rule of criminal procedure
¶605will be applied to all cases then on direct review or not yet final.” Id.
¶606(cleaned up). Thus, our holding here applies to future cases and
¶607those pending cases whose direct appeals have not yet been
¶608adjudicated.
¶609 5. Which brings us back to Johnson’s case. When we asked the
¶610parties and amici to address the nullity rule, we did so with the
¶611understanding that, to the extent the trial court’s order purported
¶612to rule on Johnson’s out-of-time motion for new trial, Cook would
¶613to proceed without the benefit of counsel with ‘eyes open’”). 15 Although many such decisions will be made by trial courts, the decision
¶614whether to recognize a pro se notice of appeal remains one for appellate courts to make. See Jones v. Peach Trader Inc., 302 Ga. 504, 510 (II) (807 SE2d 840) (2017). 37 require that we vacate that order (as well as the order granting the
¶615motion seeking to file the motion) and direct the dismissal of those
¶616motions. See, e.g., Polanco v. State, 313 Ga. 598, 598-599 (872 SE2d
¶617268) (2022) (vacating order denying motion for out-of-time appeal
¶618and remanding with direction to dismiss); Rutledge v. State, 313 Ga.
¶619460, 461 (870 SE2d 720) (2022) (same). We thus recognized that our
¶620ability to reach the merits of Johnson’s long-awaited appeal would
¶621depend on how we resolved the nullity-rule question.
¶622 Our holding today leaves open the possibility of a merits review
¶623for Johnson down the road, but not in this appeal. That is because
¶624the only order currently before us is the January 28, 2022, order
¶625denying Johnson’s out-of-time motion for new trial. That order does
¶626not purport to rule on any motion other than the now-non-cognizable
¶627out-of-time motion for new trial. It does not purport to rule on the
¶628December 13, 2000 “Extraordinary Motion for New Trial,” or on
¶629either of Johnson’s other two pro se motions filed before that, see
¶630note 2. In fact, the order on its face reflects the court’s view that
¶631those earlier motions were invalid, describing Johnson’s efforts to
¶632 38 obtain an appeal as “belated.” So it is clear that the proper
¶633disposition of the appeal now before us is to vacate the trial court’s
¶634order and remand for the trial court to dismiss Johnson’s motion for
¶635out-of-time motion for new trial and the motion seeking leave to file
¶636it. See Cook, 313 Ga. at 506 (5). However, on remand, the trial court
¶637is directed to exercise its discretion to determine whether to
¶638recognize and rule on any of the pro se post-conviction motions
¶639Johnson filed.16
¶640 Judgment vacated and case remanded with direction. All the Justices concur.
¶641 16 Johnson has argued in the alternative that, despite the absence of an order permitting the withdrawal of co-counsel McDaniel, the order permitting the withdrawal of lead counsel Boone should be construed as extending to McDaniel as well. In support of this contention, Johnson cites Uniform Superior Court Rule 4.5, which at the time provided: [t]he entry of appearance or request for withdrawal by an attorney who is a member or an employee of a law firm or professional corporation shall relieve the other members or employees of the same law firm or professional corporation from the necessity of filing additional entries of appearance or requests for withdrawal in the same action. Johnson contends that Boone and McDaniel should be treated as members of the same “law firm” or “professional corporation” for purposes of the withdrawal because both attorneys were appointed by the Indigent Defense Committee and acted in concert to represent him. We are not persuaded. 39