The Unraveling has begun.
Depending on how you count, the Supreme Court of Georgia sheared away three to five decades of its own precedent last week in Cook v. State, No. S21A1270 (Ga. Mar. 15, 2022).
Cook principally overruled the court’s 1995 opinion in Rowland v. State, 254 Ga. 872, 452 S.E.2d 756, which cemented the procedure by which convicted criminal defendants whose lawyers had unconstitutionally forfeited their rights to appellate review could seek to restore those rights.
Rowland was the culmination of a series of cases, beginning in the ’70s, where the court had exercised jurisdiction over late-filed criminal appeals, either where the trial court had acted to restore that jurisdiction or where the court itself exercised jurisdiction on an untimely notice.
It purported to answer the edict of the Supreme Court of the United States in Evitts v. Lucey, 469 U.S. 387 (1985) that, if states were to insist on rigid rules for invoking appellate jurisdiction, they must supply a remedy for defendants who were deprived of appellate review through their counsels’ ineffectiveness.
Rowland and Cook
Over the decades, Rowland’s efficient out-of-time appeal procedure became an entrenched mechanism for curing an all-too-common constitutional error—that trial counsel missed an appellate deadline. But as of roughly 2 p.m. March 15, Rowland is no more.
In Cook, a case that arose from the denial of an out-of-time appeal following a guilty plea, the court asked the parties and amici curiae for special briefing about whether (1) it ever had the authority to create Rowland’s standalone out-of-time-appeal procedure; and (2) if not, should it maintain that procedure under stare decisis principles.
(I should confess here that I authored the brief for the Georgia Association of Criminal Defense Lawyers as amicus curiae in Cook, urging a result opposite what the court reached. I should also note that the association has not considered or endorsed my statements in this editorial).
The parties and amici all agreed that the court was without legal authority to have created a stand-alone procedure to restore forfeited rights of appeal in criminal cases. The Title 5 statutes that govern invocation of the appellate courts’ jurisdiction are strict and do not admit equitable exceptions. The real debate in the case was over stare decisis: whether the court should stick with the process anyway.
The Justices’ Votes
Six justices said no: The court’s out-of-time-precedents were wholly unreasoned and contrary to the federal Habeas Corpus Act of 1967 (now Chapter 14 of Title 9 in the Georgia Code), which called the writ of habeas corpus the exclusive remedy for vindicating defendants’ constitutional rights—including that they were denied the effective assistance of counsel.
That the Rowland procedure was a quick, effective and regularly relied-upon means of curing an obvious error, the majority said, was not enough to demand its retention. And to the extent that the jettisoned procedure had preserved state and judicial resources (by limiting protracted, collateral habeas corpus litigation in jurisdictions remote from the county where the error occurred), the General Assembly was more than able to cure the problem by approving an amendment in 2010 to add the Habeas Corpus Act to the Georgia Code.
Three justices, however, said yes: that the Rowland out-of-time-appeal procedure had become so entrenched a part of criminal appellate procedure, that it was an efficient means of curing an obvious problem, and because its erasure could cause uncountable problems for litigants, counseled in favor of its retention—at least until the General Assembly stepped in.
I don’t want to quibble over the court’s decision. As I said above and conceded in briefing and argument, there was no lawful authority to have created a standalone, out-of-time appeal procedure in the first place. And the force of stare decisis (at least in a case where the present court is dubious of the original rule’s reasoning) is a matter upon which reasonable jurists can differ.
Cook’s Consequences
I’m more concerned with Cook’s consequences—what it means for countless appellants who no longer have any avenue for review, and what it may mean for the future of criminal appellate litigation in Georgia.
Cook’s most immediate consequence is that every case in the pipeline—that is every case that has not reached final judgment on appeal—where the basis for appellate jurisdiction is a grant of out-of-time appeal will be dismissed.
The only recourse for those appellants now would be to petition for a writ of habeas corpus to restore the relief that their trial courts had already granted them once, and on the same grounds. The availability of habeas corpus relief depends, of course, on whether such a petition could be timely filed in the particular case.
Under O.C.G.A. § 91442(c)(1), the limitations period to petition for habeas corpus relief is four years from when the judgment of conviction becomes final. And in cases where no appeal was timely filed, the case became final on the last day that one could have been. Four years may seem like a long time, but it isn’t—certainly not in Georgia.
Criminal appeals in Georgia that require four or more years are not unheard of. Now, say you are a defendant whose lawyer failed to timely file a motion for a new trial. You hired or were appointed an appellate lawyer who moved for an out-of-time appeal under Rowland, which was granted.
Because of institutional delays (e.g., the time to produce the trial transcripts, the time to schedule and conduct an evidentiary hearing on a motion for a new trial and the time for the clerk to transmit the record to the appellate court), more than four years have elapsed since the original, untimely motion for a new trial.
Your case might have been on the eve of an appellate decision, even on the precipice of reversal. But it will now be dismissed. And, because your time for seeking a writ of habeas corpus has lapsed, you can never get the right to an appeal back.
But that is far from Cook’s only consequence because Rowland’s out-of-time appeal procedure is far from the only piece of criminal appellate procedure that our Supreme Court has invented. To be sure, members of the Supreme Court and the Georgia Court of Appeals have themselves recognized that the precedents in this area have “led to the creation of a confusing tangle of procedural rules,” Maxwell v. State, 262 Ga. 541, 543, 422 S.E.2d 543, 545 (1992) (Fletcher, J., concurring specially), which only the General Assembly could “unweave,” King v. State, 208 Ga. App. 77, 81, 430 S.E.2d 640, 644 (1993) (Pope, C.J., concurring specially), overruled by Glover v. State, 266 Ga. 183, 465 S.E.2d 659 (1996).
Defendant’s Claims
The most significant of these rules is the requirement that a defendant raise claims of trial counsel’s ineffectiveness at the motion for a new trial. Indeed, that rule, more perhaps than any other, is responsible for how ponderously slow Georgia’s criminal appellate procedure can be.
To raise such a claim requires the interposition of new counsel and, in most cases, an evidentiary hearing that converts the motion for a new trial into a retrial of the case, the focus of which is former counsel’s performance.
What is more, Georgia is unique in this practice. Every other American jurisdiction that I have examined relegates ineffectiveness claims, not to mention other such previously unlitigated constitutional claims, to a post-conviction habeas corpus procedure or its statutory cognate.
Among Cook’s downstream consequences may be the similar relegation of ineffectiveness claims in Georgia. If, as Cook says, habeas corpus is the exclusive remedy for vindicating a convicted defendant’s constitutional rights, why should ineffectiveness claims be the province of a motion for a new trial?
The court said as much three years ago about extraordinary motions for new trial, in Mitchum v. State, 306 Ga. 878, 834 S.E.2d 65 (2019). And there is no statutory distinction between an ordinary and extraordinary motion for a new trial that would reserve constitutional claims for one but dispel them for another. It may thus only be a matter of time before an enterprising prosecutor moves to dismiss a defendant’s ineffectiveness claims from a motion for a new trial on that basis.
Why It Matters
Why does that matter? It matters because, in Georgia, ineffectiveness claims are the only vehicle by which a defendant may be able to vindicate legal error that affected a trial. If trial counsel failed to object to an obvious violation of the law by the court or the prosecution, their affected client has only two options for raising the error on appeal: a claim of ineffective assistance of counsel or plain error.
Plain error, which allows a defendant to vindicate indisputable violations of clear-and-obvious legal rules, is available only where the General Assembly provides for it. And the General Assembly has only provided for plain-error review for issues arising from rules of evidence, jury instructions or judicial comments on the evidence at trial.
It has not, as have Congress and the legislatures of other states, provided for plenary plain-error review. So if the record from a defendant’s trial discloses, say, an unobjected-to unconstitutional argument by the prosecution or a Fourth Amendment violation, the defendant’s only recourse is to claim trial counsel’s ineffectiveness. And if Cook plays out as I predict it may, they could only do so via habeas corpus—where there is no right to appointed counsel. (House Bill 572, had it passed this year, would have adopted plenary, plain-error review, but it didn’t make it out of the House.)
The Cook majority is doubtless correct that the General Assembly could fix all of this. It could add a subsection (e) to O.C.G.A. § 5639 that reads: “Whenever the defendant in a criminal prosecution has failed to timely file a motion for a new trial under Code Section 5540 or a notice of appeal under Code Section 5638 following a judgment appealable under subsection (a) of Code Section 5634, any judge of the trial court or any justice or judge of the appellate court to which the appeal is to be taken, on motion made within one year of the time for filing having lapsed, may restore the right to file such papers either upon the consent of the parties or for good cause, including that the failure to have timely filed was attributable to the defendant’s counsel, and not the defendant.”
Legislature’s Role
What is more, the General Assembly could make that provision retroactive and salvage a substantial number of the out-of-time appeals now pending.
All this is why Cook’s chief irony is that the court released it on Crossover Day. Crossover Day is when the bills passed by each chamber of the General Assembly cross over for the other chamber’s consideration. Significantly, the time for filing new legislation for this session has long passed. Even amending existing bills is more difficult than it would have been a week or two ago because each chamber is generally less willing to edit the other’s work than it would its own.
Further, were the General Assembly inclined to correct for Cook’s consequences, it could only do so by amending bills that already seek to change Title 5, where the Appellate Practice Act is found. The only qualifying candidate at this point is HB 916—a carefully crafted piece of legislation to update appellate procedures for the inferior courts. That bill’s authors might be understandably reluctant to allow it to be tinkered with now.
Cook is surely not the first invitation the court has given the General Assembly to unweave its tangle in this area. The Georgia reporters are replete with such missives. All have been ignored. I could not say why. Perhaps it is because the people with the greatest stake in the application of these rules are generally unable to vote.
Nevertheless, the court has responded to the General Assembly’s refusal to intelligently unweave the tangle by beginning to unravel it. The court could have done naught else. Its decision in Cook was binary: keep Rowland or dispense with it.
Unless the General Assembly acts soon, however, an indeterminable number of people whose lawyers cheated them of the right to an appeal and who relied to their detriment on the court’s precedents to restore it, will have had the rug pulled out from under them entirely.
Brandon Bullard is the founder and owner of The Bullard Firm in Atlanta. An appellate attorney, he is the immediate past chair of the State Bar of Georgia Appellate Practice Section.
