Burley v. State

Douglas Burley pled guilty to malice murder in 1992 in Harris Superior Court and was sentenced to life in prison. He never filed a timely appeal. Nearly three decades later, in 2019, he asked the trial court to let him file an out-of-time appeal, arguing that his plea lawyer wrongly told him he could not appeal a conviction based on a guilty plea, and that this bad advice cost him his chance to appeal. The trial court denied his request without holding a hearing, saying he had not pointed to an appealable issue in the existing record. The Supreme Court of Georgia disagreed with that approach. Relying on a recent decision in a similar case, the court held that when a defendant claims a lawyer's ineffectiveness cost him his right to appeal, the trial court must hold an evidentiary hearing to find out whether that is true before denying the request. Because no hearing was held here, the court sent the case back for one.

A trial court abuses its discretion when it denies a motion for an out-of-time appeal premised on ineffective assistance of counsel without first holding an evidentiary hearing to determine whether the defendant's failure to timely appeal actually resulted from counsel's deficient performance.

The decision reinforces that Georgia trial courts cannot simply reject an out-of-time appeal request based on ineffective counsel without holding a hearing to gather facts, giving defendants like Burley, even decades after a guilty plea, a real chance to prove their appeal rights were lost through their lawyer's error.

Judgment vacated and case remanded with direction

1. A defendant seeking permission to file an appeal late, called an out-of-time appeal, must show an excuse of constitutional importance for missing the deadline, which can include showing his lawyer's ineffectiveness cost him the appeal, even if the conviction came from a guilty plea.
2. Under the court's recent decision in Collier v. State, when a defendant claims his trial or plea lawyer's poor performance caused him to miss his chance to appeal, the trial court must hold a factual hearing to determine whether the lawyer was actually responsible for that failure.
3. A trial court abuses its discretion, meaning it acts outside the range of reasonable choices available to it, whenever it denies such a motion without holding that evidentiary hearing first.
4. Here, the trial court denied Burley's motion without holding any hearing, so the Supreme Court of Georgia could not tell from the existing record whether Burley's failure to appeal on time was really caused by his plea counsel's ineffectiveness.
5. Because the Collier decision had not yet been issued when the trial court ruled, the trial court did not have the benefit of that guidance, but the same rule still required vacating its judgment and sending the case back for a proper hearing.

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