Watkins v. the State

SECOND DIVISION
BARNES, P. J.,
RICKMAN and SELF, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

February 14, 2017

In the Court of Appeals of Georgia
A16A2228. WATKINS v. THE STATE.

SELF, Judge.

Michael Watkins appeals from the trial court’s denial of his motion for an out-

of-time appeal. He contends that he was denied his right to an appeal because he was

not adequately advised about his appeal right and his trial counsel failed to preserve

his right to an appeal. For the reasons explained below, we vacate the trial court’s

order and remand with direction.

“The denial of a motion for an out-of-time appeal is a matter within the

discretion of the trial court, and the trial court’s decision will not be reversed absent

abuse of such discretion.” (Citation and punctuation omitted.) Smith v. State, 263 Ga.

App. 414, 417 (1) (587 SE2d 787) (2003). The record shows that on January 15, 2015,

a jury found Watkins guilty of possession of more than an ounce of marijuana, and the
trial court sentenced Watkins to ten years imprisonment after the State presented

evidence of four prior felony convictions. After sentencing Watkins, the trial court

informed him: “If you wish to file a Writ of Habeas Corpus this needs to be filed

within four years of this conviction becoming final. You do have a right of appeal. Any

appeal needs to be filed within 30 days of today’s order[, January 15, 2015].”

On February 5, 2015, Watkins filed a pro se motion for a free trial transcript,

as well as his discovery package, even though his retained trial counsel had not

withdrawn from the case. On February 19, 2015, after the time for filing a direct appeal

had expired, the trial court wrote a letter to Watkins stating: “Your trial attorney . . .

has the discovery package and you should obtain it from him. The trial transcript is not

yet prepared. However you had retained counsel and there is no appeal pending, so

you would not be entitled to a free copy at this time.”

On February 27, 2015, a new attorney entered an appearance on Watkins’

behalf and filed a motion for an out-of-time appeal. On March 4, 2015, a “Circuit

Defender Administrator/Designee” issued a “Certificate of Indigency” stating: “Upon

consideration of the Application for Appointment of Counsel, the above-named

defendant is found to be indigent under criteria of the Georgia Public Defense

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Standards Council, Federal Poverty Guidelines, and appropriate court rules, and is

entitled to have appointed counsel.”1

In his motion for an out-of-time appeal, Watkins asserted that his trial counsel

failed to preserve his right to an appeal, that his pro se requests for transcripts

provided evidence of his desire for an appeal, and that the State did not oppose the

grant of an out-of-time appeal. In the hearing on his unopposed motion, Watkins

presented minimal evidence to support his claim that he was entitled to an out-of-time

appeal.

Trial counsel testified that he was “[o]riginally” only “partially retained” to

represent Watkins. He denied that he was retained to handle an appeal, but admitted

that he did not withdraw after Watkins was sentenced, that he did not file a motion for

new trial or notice of appeal, and that he assumed he was still the attorney of record

unless someone else stepped in. He also acknowledged that he had an obligation as

a criminal defense lawyer to look out for his client’s best interest generally. Trial

counsel was not asked and provided no information about whether he advised Watkins

1
Because a copy of Watkins’ application for appointed counsel does not
appear in the record before us, we cannot determine the date on which Watkins
submitted the application.

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that he had the right to appointed counsel to handle an appeal if he was indigent.

Likewise, he was asked no questions about whether or to what extent he discussed

Watkins’ desires regarding an appeal.

Watkins testified that he wanted to file a motion for new trial and never told his

retained trial counsel “not to file a motion for new trial in [his]behalf.” Watkins

provided no information about whether he was informed about a right to appointed

appellate counsel if he could not afford one. Finally, he did not testify about when he

first sought appointed counsel to represent him in connection with this out-of-time

appeal.

The trial court denied Watkins’ motion for out-of-time appeal based upon its

conclusion that “[t]rial counsel was not required to file an appeal for which he had not

been retained” and a finding that Watkins “did not testify that he had made any overt

act to pursue his appeal. The Defendant did not show that he had contacted any

lawyer to represent him on appeal, not even his retained trial counsel. He showed

absolutely no attempt to file any appeal at all.” In the trial court’s view, “[t]he failure

to perfect the appeal was solely caused by the Defendant and his failure to act.”

Out-of-time appeals are designed to address the constitutional concerns
that arise when a criminal defendant is denied his first appeal of right

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 because the counsel to which he was constitutionally entitled to assist him
in that appeal was professionally deficient in not advising him to file a
timely appeal and that deficiency caused prejudice. Thus, an out-of-time
appeal is appropriate when a direct appeal was not taken due to
ineffective assistance of counsel.

(Citation and punctuation omitted.) Wetherington v. State, 296 Ga. 451, 453 (1) (769

SE2d 53) (2015). Accordingly, Geogia law “permits out-of-time appeals if the

defendant was denied h[is] right of appeal through counsel’s negligence or ignorance,

or if the defendant was not adequately informed of h[is] appeal rights.” Smith, supra,

263 Ga. App. at 416 (1). “When a court considers a claim in connection with a motion

for out-of-time appeal that a defendant was denied effective assistance, the court

usually will apply the familiar standard of Strickland v. Washington, 466 U. S. 668

(104 SCt 2052, 80 LE2d 674) (1984).” Mims v. State, 299 Ga. 578, 579 (1) (787 SE2d

237) (2016). “An out-of-time appeal is not authorized in every criminal case which

involves a failure by counsel to comply with the applicable procedures necessary to

invoke [the appellate court’s] jurisdiction.” Porter v. State, 271 Ga. 498, 499-500 (521

SE2d 566) (1999).

If a convicted party by his own conduct, or by his conduct in concert
with that of his attorney, purposefully delays the appeal of his conviction

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 to his own advantage, he forfeits appeal and review of his conviction on
the merits by an appellate court. An out-of-time appeal is not authorized
if the loss of the right to appeal is not attributable to ineffective assistance
of counsel but to the fact that the defendant himself slept on his rights.

(Citation and punctuation omitted.) Smith, supra, 263 Ga. App. at 416 (1). “In other

words, ineffective assistance of counsel must be the sole reason for the failure to file

the appeal. . . .” Moore v. State, 304 Ga. App. 105, 106-107 (695 SE2d 661) (2010).

Therefore, “[t]he disposition of a motion for out-of-time appeal hinges on a

determination of who bore the ultimate responsibility for the failure to file a timely

appeal.” Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

Watkins asserts that the trial court erred by denying his motion for an out-of-

time because: (1) nothing in the record shows that either the trial court or his trial

counsel informed him that he was entitled to appointed counsel if he could not afford

one; and (2) retained counsel took no steps to preserve his right to appeal, even

though counsel did not withdraw his representation during the 30-day-period following

entry of Watkins’ sentence.

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 1. We find no merit in Watkins’ assertion that he is entitled to an out-of-time

appeal because the trial court failed to advise him that he had the right to appointed

appellate counsel if he could not afford one.

[W]here a defendant retains trial counsel and then claims indigence on
appeal, he bears the burden of making that fact known to the trial court
or some responsible state official. If the trial court has no reason to
believe that the defendant is indigent and cannot afford the services of
retained counsel for the purpose of appeal, it is under no duty to inquire
as to the defendant’s indigence and may presume that his retained
counsel will protect his appellate rights.

(Citation and punctuation omitted.) Seay v. State, 220 Ga. App. 418, 419 (469 SE2d

496) (1996). See also Massey v. State, 278 Ga. App. 303, 305-306 (2) (628 SE2d 706)

(2006). As Watkins was represented by retained counsel at the time of sentencing, his

attorney, not the trial court,2 had the duty to inform Watkins of his “right to counsel

on appeal (including the right to appointed counsel for indigent defendants).”

(Citation and punctuation omitted; emphasis in original.) Hill v. State, 285 Ga. App.

2
Defendants make numerous decisions based upon information provided solely
by their attorneys in the course of a criminal prosecution without input or advice from
the trial court. For example, trial “[c]ourts . . . have no duty to advise a defendant of
the right to testify or to determine on the record whether the defendant’s decision is
voluntary, knowing, and intentional.” (Citation and punctuation omitted.) Williams v.
State, 292 Ga. 844, 854 (3) (i) (742 SE2d 445) (2013).

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310, 311 (2) (645 SE2d 758) (2007). See also Bell v. Hopper, 237 Ga. 810, 810-811

(229 SE2d 658) (1976); Jayko v. State, 335 Ga. App. 684, 687, n. 2 (782 SE2d 788)

(2016).

While this Court sometimes looks at whether a trial court advised a represented

defendant about the right to appointed counsel if he or she could not afford one, in

doing so, we are, in essence, analyzing the prejudice prong of an ineffective assistance

of counsel claim under Strickland, supra. See, e.g., Wimmer v. State, 323 Ga. App.

820 (748 SE2d 297) (2013); Yoder v. State, 247 Ga. App. 272, 273 (543 SE2d 784)

(2000). For example, in Hill, supra, we found that “trial counsel did not fulfill her duty

to . . . fully inform [the defendant] of his appeal rights before ceasing her

representation.” 285 Ga. App. at 311 (2). But based upon the particular record before

us in Hill, we remanded the case to the trial court

for a determination of whether the trial court advised appellant fully of his
rights regarding appeal and of whether appellant was at the time of
conviction an indigent person who could qualify for appointed counsel.
If the trial court finds that [the defendant] was indigent at the time of his
conviction and that the trial court did not fully advise [the defendant] of
his rights regarding appeal, the trial court is directed to authorize [the
defendant’s] out-of-time appeal.

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(Citations and punctuation omitted.) Id. at 312 (2).

However, none of our statements in Hill, supra, should be construed as

imposing a mandatory obligation upon trial courts to inform every defendant

represented by retained counsel that they have a right to appointed appellate counsel

in the event of indigence. Nor does it stand for the proposition that represented

defendants are automatically entitled to an out-of-time appeal if the trial court fails to

inform them of their right to appointed counsel in the event of indigence. If trial

counsel fulfills his or her duty to so inform the defendant, it is irrelevant whether the

trial court provided the same information. On the other hand, if trial counsel fails to

adequately advise a defendant about his appeal rights, no harm results if the trial court

elected to provide the information.

2. Having concluded that the trial court’s failure to advise Watson does not

entitle him to an out-of-time appeal, we must now examine whether trial counsel

fulfilled his duty to adequately inform Watson of his appeal rights. The record in this

case is silent as to whether Watkins’ trial counsel informed him of his right to

appointed counsel if he could not afford one. In the absence of evidence showing that

Watkins’ attorney advised him that he was entitled to an appointed attorney if he was

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indigent, the trial court’s finding that Watkins was ultimately responsible for the failure

to file a timely appeal was premature. See Thorpe v. State, 253 Ga. App. 263, 264 (558

SE2d 804) (2002) (remanding case because trial court failed to make factual inquiry

into whether defense counsel informed defendant of his appeal rights). Accordingly,

we remand this case for a determination as to whether Watkins’ counsel informed of

him of this right and Watkins nonetheless failed to take appropriate action to preserve

his right to a direct appeal. See Cannon v. State, 175 Ga. App. 741, 742-743 (334

SE2d 342) (1985) (remanding case for second hearing and additional findings on

dispostive issue of who bore ultimate responsibility for failure to file a timely appeal).

If trial counsel did not advise Watkins about his right to appointed counsel, the trial

court is directed to grant Watkins’ motion for an out-of-time appeal. If Watkins’

attorney did so advise him, the trial court should conduct an additional inquiry into

whether Watkins thereafter slept on his right to appointed counsel and a direct appeal.

3. Watkins’ remaining arguments on appeal are rendered moot by our holding

in Division 1.

Judgment vacated and case remanded with direction. Barnes, P. J., and

Rickman, J., concur.

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