Kelly v. State

In the Supreme Court of Georgia

Decided: June 21, 2021

S21A0184. KELLY v. THE STATE.

LAGRUA, Justice.

This appeal presents the question of whether, when a trial

court has denied a criminal defendant’s motion for new trial and the

defendant subsequently seeks and is granted an out-of-time appeal,

the defendant is authorized to file a second motion for new trial to

raise claims other than those alleging the ineffective assistance of

trial counsel that could not have been raised in the initial motion.

We conclude that a defendant is not authorized to do so. For this

reason, this appeal is untimely and must be dismissed.

Appellant Paula Vernisa Kelly was convicted of murder and

other crimes in 2015. Through new counsel, Kelly filed a motion for

new trial, which was denied in an order entered on September 11,

2018. On October 15, 2018, Kelly filed a notice of appeal. Because
the notice of appeal was filed more than 30 days after the denial of

the motion for new trial, this Court dismissed the appeal as

untimely. See Kelly v. State, Case No. S19A0639 (Feb. 18, 2019); see

also OCGA § 5-6-38 (a) (“A notice of appeal shall be filed within 30

days after entry of the appealable decision or judgment complained

of; but when a motion for new trial . . . has been filed, the notice shall

be filed within 30 days after the entry of the order granting,

overruling, or otherwise finally disposing of the motion.”). In the

dismissal order, we advised Kelly of her right to seek an out-of-time

appeal and stated that, if an out-of-time appeal were granted,

“appellant will have 30 days from the grant within which to file a

notice of appeal.”

Kelly thereafter sought an out-of-time appeal in the trial court,

and the motion was granted on March 22, 2019. The court’s order

incorrectly stated that “[Kelly’s] counsel did not file a timely motion

for new trial” and advised Kelly that she could “file a motion for new

trial or notice of appeal within 30 days from the date of this Order.”

Kelly then filed a second motion for new trial on Monday, April 22,

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2019.1 In this second motion for new trial, in which Kelly was

represented by the same counsel as in her initial motion, Kelly

asserted substantially similar claims as those previously raised and

rejected. The second motion was denied on September 13, 2019.

From that order, Kelly filed the notice of appeal now before us on

Monday, October 14, 2019.

“[I]t is the duty of this Court to inquire into its jurisdiction in

any case in which there may be a doubt about the existence of such

jurisdiction.” State v. Intl. Keystone Knights of the Ku Klux Klan,

Inc., 299 Ga. 392, 396 (2) (788 SE2d 455) (2016) (citation and

punctuation omitted). “The proper and timely filing of the notice of

appeal is an absolute requirement to confer jurisdiction upon the

appellate court.” Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42)

(2000) (emphasis in original; citation and punctuation omitted).

There is no question that Kelly’s October 14, 2019 notice of

appeal was timely filed from the September 13, 2019 order denying

1Because the 30-day deadline from the March 22 order fell on Sunday,
April 21, the filing on Monday, April 22 was timely. See OCGA § 1-3-1 (d) (3).
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her second motion for new trial. See OCGA §§ 5-6-38 (a), 1-3-1 (d)

(3). There is a question, however, about whether Kelly was

authorized to file that second motion for new trial after the grant of

her motion for an out-of-time appeal. If the second motion for new

trial was not authorized, then the October 14, 2019 notice of appeal,

filed well past the 30-day deadline from the March 22, 2019 order

granting the motion for out-of-time appeal, would be untimely. See

Debter v. Stephens, 297 Ga. 652, 652-653 (777 SE2d 244) (2015)

(where a motion for new trial is not a proper vehicle of review, it

does not toll the time for filing a notice of appeal).

Successive motions for new trial in criminal cases are generally

barred under our Code. See OCGA § 5-5-41 (b) (“Whenever a motion

for a new trial has been made within the 30 day period in any

criminal case and overruled . . . , no motion for a new trial from the

same verdict or judgment shall be made or received unless the same

is an extraordinary motion or case[.]”). This general rule, however,

has given way to a limited degree where an out-of-time appeal is

granted, and a defendant is permitted to file a second motion for new

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trial in order to raise claims of trial counsel ineffectiveness that

could not have been raised in the initial motion for new trial. See

Maxwell v. State, 262 Ga. 541, 542-543 (422 SE2d 543) (1992)

(following denial of motion for new trial, grant of out-of-time appeal,

and appointment of new appellate counsel, defendant was permitted

to raise ineffectiveness claims in a second motion for new trial). 2 See

also Robinson v. State, 306 Ga. 614, 617 n.4 (832 SE2d 411) (2019)

(noting that, following grant of out-of-time appeal, defendant would

have had to raise trial counsel ineffectiveness claims in second

motion for new trial to preserve them); Andrews v. State, 278 Ga.

854, 854 (607 SE2d 543) (2005) (concluding that, following grant of

out-of-time appeal, “a second motion for new trial was required” to

preserve trial counsel ineffectiveness claims); Maddox v. State, 278

2 Indeed, asserting those claims in a motion for new trial is required, if
the defendant wishes to preserve them for appellate review. See Ponder v.
State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991) (“[A] claim of ineffective
assistance of counsel may not be asserted in an out-of-time appeal unless
appellate counsel pursues a motion for new trial, subsequent to the grant of
the out-of-time appeal, in which the issue is raised and resolved by means of
an evidentiary hearing[.]”). The rule announced in Ponder derives from the
principle that trial counsel ineffectiveness claims must be raised at the
“earliest practicable moment.” Id. at 840 (1) (citing Smith v. State, 255 Ga. 654
(3) (341 SE2d 5) (1986)).
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Ga. 823, 826 (5) (607 SE2d 587) (2005) (“The fact that the trial court

had denied appellant’s motion for new trial prior to granting the out-

of-time appeal did not preclude appellant from filing a second motion

for new trial raising the issue of ineffective assistance of trial

counsel.”).

Here, the claims Kelly raised in her second motion for new trial

were not claims of ineffective assistance that she was unable to

assert in her initial motion for new trial. In fact, Kelly, who has

been represented by the same appellate counsel since her

sentencing, asserted trial counsel ineffectiveness claims in her

initial motion for new trial. These claims, along with the other

claims raised in the initial motion, were heard and rejected. Thus,

Kelly’s circumstances do not fit within the exception carved out in

Maxwell and its progeny.

We acknowledge that certain language in our opinion in

Maxwell could be construed to mean that the grant of an out-of-time

appeal gives a defendant carte blanche to “start the post-conviction

process anew.” 262 Ga. at 542-543 (3). But we do not read our

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holding in Maxwell in such broad terms. Notably, the case we cited

in Maxwell in support of the notion of “start[ing] . . . anew” was a

case involving trial counsel ineffectiveness claims that could have

been raised in a second motion for new trial after the grant of an

out-of-time appeal. See Bell v. State, 259 Ga. 272, 272 (381 SE2d

514) (1989).

In addition, review of our post-Maxwell precedent has

uncovered no case in which we have relied on Maxwell to justify the

filing of a second motion for new trial raising claims other than

previously unavailable ineffectiveness claims following the grant of

an out-of-time appeal. Rather, the Court has cited Maxwell almost

exclusively in connection with situations, like that in Maxwell,

involving trial counsel ineffectiveness claims raised in a second

motion for new trial by new appellate counsel following the grant of

an out-of-time appeal. See Lynn v. State, 310 Ga. 608, 608 n.1 (852

SE2d 843) (2020); Robinson, 306 Ga. at 617 n.4; Andrews, 278 Ga.

at 854; Maddox, 278 Ga. at 826 (5); Robinson v. State, 275 Ga. 143,

144 (4) (561 SE2d 823) (2002), overruled on other grounds by

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Worthen v. State, 304 Ga. 862, 874 n.8 (823 SE2d 291) (2019);

Chatman v. State, 265 Ga. 177, 178 (2) (453 SE2d 694) (1995);

Rowland v. State, 264 Ga. 872, 876 n.8 (452 SE2d 756) (1995). And

none of the remaining cases citing Maxwell involve successive

motions for new trial at all. See Fairclough v. State, 276 Ga. 602,

602 (1) (581 SE2d 3) (2003) (citing Maxwell’s statement that an out-

of-time appeal “start[s] the post-conviction process anew,” holding

that the grant of an out-of-time appeal revives an initially untimely

first motion for new trial); Glover v. State, 266 Ga. 183, 184 n.5 (465

SE2d 659) (1996) (citing Maxwell for general proposition that trial

counsel ineffectiveness claims must be raised at earliest practicable

moment). See also Collier v. State, 307 Ga. 363, 382 (834 SE2d 769)

(2019) (Peterson, J., concurring) (citing Maxwell’s special

concurrence in observing that our post-conviction jurisprudence is

“‘confusing’ and ‘incredible’”). And while we indicated in Maxwell

that trial courts have “discretion to refuse to reopen issues that

[they] decided in the first motion for new trial,” 262 Ga. at 543,

which necessarily implies they also have discretion to agree to

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reopen such issues, there is no indication that we intended to allow

such reconsideration of issues in the absence of a previously

unavailable trial counsel ineffectiveness claim, which is the sole

basis on which the second motion for new trial may properly proceed.

To hold otherwise would run contrary to OCGA § 5-5-41 (b).

In addition, though we used similarly broad language in

Ponder, on which our holding in Maxwell heavily relies, that

language must be read in the context of Ponder’s posture, in which

the defendant had not previously filed a motion for new trial. See

Ponder, 260 Ga. at 841 (1) (stating that the grant of an out-of-time

appeal “should be seen as permission to pursue post-conviction

remedies which would be available at the same time as a direct

appeal[ ] . . . including a motion for new trial”). There, it made sense

that the grant of the out-of-time appeal would enable the defendant

to file, for the first time, a motion for new trial; the out-of-time

appeal effectively restored the defendant to the position he occupied

at the time his right to appeal was frustrated. See Rowland v. State,

264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995) (out-of-time appeal

9
exists to remedy an appellate procedural deficiency that has

frustrated the right of appeal). But to construe the grant of an out-

of-time appeal as a license to reopen an avenue of review that the

defendant has already pursued with unconflicted counsel would

reward defendants who have had to seek an out-of-time appeal,

rather than simply restoring their position at the time they forfeited

the right to appeal.

Accordingly, we now hold expressly that the effect of the grant

of an out-of-time appeal is to restore the defendant to the position

he occupied at the time he forfeited his right to appeal (or seek other

post-conviction relief). To the extent the language of Maxwell or

Ponder suggests otherwise, this language is disapproved.

In light of the above, Kelly’s second motion for new trial was

improper and did not toll the deadline for filing her notice of appeal.

See Debter, 297 Ga. at 652-653. Accordingly, the notice of appeal,

filed more than six months after issuance of the order granting the

out-of-time appeal, was untimely. See OCGA § 5-6-38 (a). Because

a timely filed notice of appeal is an absolute prerequisite to this

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Court’s jurisdiction, see Veasley, 272 Ga. at 838, this appeal must be

dismissed. We note that this dismissal is without prejudice to

Kelly’s right to seek a second out-of-time appeal. See Rowland v.

State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995) (“A criminal

defendant who has lost [her] right to appellate review of [her]

conviction due to error of counsel is entitled to an out-of-time

appeal.”).

Appeal dismissed. All the Justices concur, except Nahmias,
P.J., and Warren, J., who concur specially.

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 WARREN, Justice, concurring specially.

I agree with the majority that Maxwell v. State, 262 Ga. 541

(422 SE2d 543) (1992), should not be extended to permit Kelly to

pursue a second motion for new trial and relitigate her claims of

ineffective assistance of trial counsel (among other things), and I

therefore agree that her appeal must be dismissed. I write, however,

to underscore how our decision in Maxwell has contributed to what

has accurately been described as this Court’s “tangled mess of post-

conviction jurisprudence.” Collier v. State, 307 Ga. 363, 379 (834

SE2d 769) (2019) (Peterson, J., concurring specially). Because I

believe we have not afforded the text of OCGA § 5-5-41 (b) sufficient

weight in our precedent, because I have doubts about the correctness

of the remedy (a second motion for new trial) that we fashioned in

Maxwell, and because I believe that the majority validates

Maxwell’s core holding, I concur specially in the majority opinion.

OCGA § 5-5-41 (b) states:

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 Whenever a motion for a new trial has been made within
the 30 day period in any criminal case and overruled or
when a motion for a new trial has not been made during
such period, no motion for a new trial from the same
verdict or judgment shall be made or received unless the
same is an extraordinary motion or case; and only one
such extraordinary motion shall be made or allowed.

(Emphasis supplied.) The text of OCGA § 5-5-41 (b) thus bars a

second motion for new trial based on the same verdict or judgment,

with the singular exception of extraordinary motions. See OCGA

§ 5-5-40 (a) (“All motions for new trial, except in extraordinary cases,

shall be made within 30 days of the entry of the judgment on the

verdict or entry of the judgment where the case was tried without a

jury.”). But neither the majority opinion in this case (which

dismisses the appeal from a defendant’s second motion for new

trial), nor the primary case on which the majority relies, Maxwell

(which allowed a defendant to file a second motion for new trial),

grapples with or explains why the factual circumstances presented

in Maxwell would ever support the filing of a second motion for new

trial under OCGA § 5-5-41 (b).

It is true that OCGA § 5-5-41 (b) must yield—and therefore not

13
be enforced—if its application in a specific case would thwart a

remedy for the violation of a defendant’s constitutional rights. Cf.

Ringold v. State, 304 Ga. 875, 879 (823 SE2d 342) (2019) (explaining

that “Georgia courts may excuse compliance” with the statutory

time requirement for filing a notice of appeal “where necessary to

avoid or remedy a constitutional violation concerning the appeal,

such as when counsel was ineffective in filing the notice of appeal”)

(citation and punctuation omitted). And the majority opinion today

affirms that the purpose of our out-of-time appeal jurisprudence is

to “restore the defendant to the position he occupied at the time he

forfeited his right to appeal . . . .” Maj. Op. at 10. See also Rowland

v. State, 264 Ga. 872, 875-876 (452 SE2d 756) (1995) (holding that

where ineffective assistance of counsel—i.e., a violation of a

defendant’s Sixth Amendment right to counsel—has deprived a

defendant of a direct appeal, the defendant may file an out-of-time

appeal to remedy the loss of his right to appeal); Hall v. Jackson,

310 Ga. 714, 724 (854 SE2d 539) (2021) (explaining that “remedies

for Sixth Amendment violations must neutralize the taint of (the)

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constitutional violation, while at the same time not grant a windfall

to the defendant or needlessly squander the considerable resources

the State properly invested in the criminal prosecution”) (citation

and punctuation omitted).

It appears, however, that the remedy this Court provided in

Maxwell was too broad because it exceeded that which was required

to remedy the deprivation of Maxwell’s appellate rights because of

an alleged constitutional violation (i.e., ineffective assistance of

counsel). There, Maxwell was convicted of murder and his counsel

filed a motion for new trial. Maxwell did not assert that his counsel

provided ineffective assistance of counsel in filing the motion for new

trial, and, in the absence of some evidence to the contrary, counsel

is presumed to have provided effective assistance during those

proceedings. See Young v. State, 309 Ga. 529, 539 (847 SE2d 347)

(2020) (explaining that there is a strong presumption that counsel’s

performance was adequate). But then Maxwell’s counsel did not file

a notice of appeal, which resulted in the denial of Maxwell’s

statutory right to a direct appeal. See OCGA § 5-6-34 (a). Thus, the

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only ineffective assistance of counsel in that case that involved

Maxwell’s post-conviction rights pertained to Maxwell’s counsel

failing to file a notice of appeal.

But the remedy this Court fashioned did not merely place

Maxwell back in the position he was in before his constitutional

right to counsel was violated (i.e., when his trial counsel failed to file

a direct appeal); a remedy tailored to that constitutional violation

would have permitted Maxwell to file, with the effective assistance

of counsel, a direct appeal from the denial of his motion for new trial.

And indeed, that is exactly what a new attorney did for Maxwell

after the trial court granted Maxwell’s pro se out-of-time appeal and

appointed new counsel for him. Yet this Court provided additional

relief by allowing Maxwell to file a second motion for new trial—

even though he had already filed a first motion for new trial when

represented by counsel, and even though new counsel filed a direct

appeal on Maxwell’s behalf—thus remedying the deprivation of

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rights caused by Maxwell’s first counsel. 3 Given that the violation

of Maxwell’s right to counsel did not appear to relate to the filing of

a motion for new trial, I can identify no constitutional violation that

would have permitted this Court to “excuse compliance” with OCGA

§ 5-5-41 (b) and allow Maxwell to file a second motion for new trial.

See Hall, 310 Ga. at 720 (“A criminal defendant in Georgia is

constitutionally entitled to the effective assistance of counsel during

his . . . motion for new trial proceeding.”); Ringold, 304 Ga. at 879.

In short, I do not understand why this Court was authorized to

ignore the text of OCGA § 5-5-41 (b) and provide the remedy of a

3 Maxwell contended on appeal to this Court that his trial counsel
provided constitutionally ineffective assistance at trial. We not only held that
Maxwell had the right to file a second motion for new trial; we also held that
he was required to file one to avoid waiving his claim of ineffective assistance
of trial counsel. See Maxwell, 262 Ga. at 543. This result, we concluded, was
necessary to comply with our previously adopted “policy” that defendants must
file their claims of ineffective assistance of counsel at the “earliest practicable
moment.” Ponder v. State, 260 Ga. 840, 840, 841 (400 SE2d 922) (1991).
However, because the availability of filing a second motion for new trial was
an extension of then-existing law, we remanded Maxwell’s case to the trial
court to permit Maxwell to file a second motion and raise his claim that trial
counsel provided ineffective assistance at trial. See id. Whatever the merits
or efficiencies of a policy requiring the filing of ineffective assistance of counsel
claims at the “earliest practicable moment,” judicially-created decisional law
cannot contravene a statute—such as OCGA § 5-5-41 (b)—in the absence of a
need to remedy a constitutional violation.
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second motion for new trial in Maxwell.

I therefore have doubts about the soundness of Maxwell and

am concerned that the majority in this case validates its holding,

even as it dismisses the appeal from Kelly’s second motion for new

trial. See, e.g., Maj. Op. at 4-5 (approvingly citing Maxwell for the

proposition that a defendant should be “permitted to file a second

motion for new trial in order to raise claims of trial counsel

ineffectiveness that could not have been raised in the initial motion

for new trial”); Maj. Op. at 7-8 (citing with approval cases that have

followed Maxwell). Even so, the parties in this case have not asked

us to evaluate the ongoing validity of Maxwell, and it is clear to me

that the majority reaches the correct answer under the law, insofar

as Maxwell should not be extended to permit Kelly’s second motion

for new trial here. For the foregoing reasons, I concur specially in

the majority opinion.

I am authorized to state that Presiding Justice Nahmias joins

in this special concurrence.

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