Boone v. State

Odeirrek Boone pleaded guilty to malice murder and related charges in the stabbing death of a convenience store owner and was sentenced to life in prison plus additional years. Years later, he asked the trial court for permission to file a late appeal, arguing his plea lawyer never told him he had a right to appeal or a right to withdraw his guilty plea before sentencing. After a hearing on remand, the trial court found he had in fact been advised of his appeal rights and never asked his lawyer to appeal. On appeal to the Supreme Court of Georgia, Boone did not really argue he wanted to appeal; instead he argued he wanted a chance to withdraw his guilty plea. The court explained that even if his appeal rights had been frustrated, an out-of-time appeal is not a tool for reviving an untimely motion to withdraw a guilty plea. Because he sought a remedy the law does not allow, the court affirmed the denial.

An out-of-time appeal is a remedy only for a frustrated right to appeal, not a way to revive an untimely motion to withdraw a guilty plea; because Boone sought only the latter, he was not entitled to relief even assuming his appeal rights had been frustrated.

The ruling confirms that Georgia defendants who miss the deadline to withdraw a guilty plea cannot use a late appeal as a workaround, clarifying for defense lawyers and courts statewide the limited scope of the out-of-time appeal remedy.

Affirmed

1. The court identified the legal remedy at issue, an out-of-time appeal, which is a judicially created way to let a defendant file an appeal he would have pursued but for his lawyer's ineffectiveness in failing to protect that right.
2. The court noted that on appeal Boone did not really argue he wanted to appeal his conviction; instead he argued only that he should be allowed to file a late motion to withdraw his guilty plea.
3. Relying on its recent decision in Schoicket v. State, the court explained that even a granted out-of-time appeal does not create a path to pursue an otherwise-untimely motion to withdraw a guilty plea.
4. Applying that rule, the court concluded that even if Boone's lawyer had failed him regarding his appeal rights, granting an out-of-time appeal would not give Boone the relief he actually sought, so his claim failed regardless of the deficiency question.

• out-of-time appeal
• guilty plea withdrawal
• ineffective assistance of counsel
• malice murder