Cole v. State

Bobby Jay Cole pleaded guilty in 1991 to malice murder and armed robbery he committed at age 16, and received concurrent life sentences. Nearly 30 years later, in 2020, Cole filed his own request in the Catoosa County trial court asking to file an out-of-time appeal, meaning a late appeal filed after the normal deadline had passed. He argued that his plea lawyer's ineffective assistance had deprived him of an appeal he otherwise would have pursued. The trial court denied his request without holding a hearing to look into the facts behind his claim. The Supreme Court of Georgia held that under its recent precedents, whenever a defendant makes this kind of allegation, the trial court must hold an evidentiary hearing to figure out whether the lawyer was actually responsible for the missed appeal. Because no such hearing happened here, the Supreme Court of Georgia vacated the trial court's order and sent the case back for that hearing.

A defendant who alleges his plea counsel's ineffective assistance deprived him of an appeal he would have pursued is entitled to an evidentiary hearing on that claim, and a trial court abuses its discretion by denying such a motion without holding one.

The ruling reinforces that Georgia trial judges cannot reject out-of-time appeal requests based on ineffective assistance claims without first holding a fact-finding hearing, protecting defendants' appeal rights and giving guidance to trial courts statewide handling similar late-filed requests.

Judgment vacated and case remanded with direction

1. The court applied the rule from its own precedent that a criminal defendant is entitled to an out-of-time appeal, meaning a late-filed appeal excused because of a lawyer's failure, if his counsel's constitutionally deficient performance deprived him of an appeal he would have pursued.
2. Under that same line of cases, whenever a defendant claims in a motion for an out-of-time appeal that his lawyer's ineffective assistance cost him his right to appeal, the trial court must hold an evidentiary hearing to determine whether the lawyer was actually responsible for the missed appeal.
3. Because Cole specifically alleged that his plea lawyer's ineffective assistance deprived him of his right to appeal, the trial court was required to hold such a hearing to investigate the factual basis for that claim.
4. The trial court instead denied Cole's motion without any hearing, which the Supreme Court of Georgia found to be an abuse of discretion, meaning the judge failed to make a decision within the range the law allows.
5. Because the State's arguments about collateral estoppel (being barred from relitigating an issue already decided in Cole's earlier federal habeas case) and delay-based prejudice were never raised or ruled on in the trial court, the Supreme Court of Georgia did not consider those arguments on appeal.
6. The court therefore vacated the trial court's order and sent the case back so the trial court could hold the required hearing and decide whether plea counsel's ineffective assistance caused Cole to miss his chance to appeal.

• out-of-time appeal
• ineffective assistance of counsel
• guilty plea
• murder conviction
• evidentiary hearing