--- title: Cole v. State collection: opinions id: S20A1377 cite_as: Cole v. State, 310 Ga. 566 (2020) canonical_url: https://georgiacommons.org/opinions/S20A1377 md_url: https://georgiacommons.org/opinions/S20A1377.md text_url: https://georgiacommons.org/opinions/S20A1377/text source_url: https://www.courtlistener.com/opinion/10367302/cole-v-state/ date: 2020-12-07 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2020.md previous: https://georgiacommons.org/opinions/S20A1318.md next: https://georgiacommons.org/opinions/S20A1151.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 2287 omitted_url: https://georgiacommons.org/opinions/S20A1377.md?full=1 docket: S20A1377 citation: 310 Ga. 566 court: Supreme Court of Georgia case_type: criminal appeal authoring_justice: Warren disposition: Judgment vacated and case remanded with direction vote: Melton, C.J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur word_count: 830 date_filed_source: courtlistener citations: - 852 S.E.2d 533 record_source: courtlistener legal_areas: - criminal law - constitutional law upstream_id: "10367302" summaries_model: claude-sonnet-5 --- # Cole v. State Supreme Court of Georgia, docket S20A1377, filed 2020-12-07, 310 Ga. 566. ## Opinion 310 Ga. 566 FINAL COPY S20A1377. COLE v. THE STATE. WARREN, Justice. Appellant Bobby Jay Cole appeals from the trial court’s summary denial of his motion for out-of-time appeal from his murder and armed robbery convictions. Because the trial court did not hold a hearing to determine whether Cole was deprived of his right to appeal due to the constitutionally ineffective assistance of his plea counsel, we vacate the court’s order and remand for such a hearing. On September 10, 1990, Cole was indicted by a Catoosa County grand jury for malice murder and armed robbery. Those crimes occurred on August 13, 1990, when Cole was 16 years old. On April 1, 1991, Cole pleaded guilty to those crimes and received concurrent life sentences. On March 13, 2020, Cole file a pro se motion for out- of-time appeal in the trial court, contending that under Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019), he was entitled to an out- of-time appeal because his plea counsel’s ineffective assistance deprived him of his right to an appeal.1 On May 8, 2020, without holding an evidentiary hearing, the trial court denied Cole’s motion. Cole, who is proceeding pro se, timely filed this appeal. “‘A criminal defendant is entitled to an out-of-time appeal if his counsel’s constitutionally deficient performance deprived him of an appeal of right that he otherwise would have pursued.’” Clark v. State, 310 Ga. 489, 490 (852 SE2d 522) (2020) (quoting Collier, 307 Ga. at 364). For that reason, in a number of recent cases, we have held that “‘when a defendant alleges in a motion for an out-of-time appeal that he was deprived of his right to appeal due to his counsel’s ineffective assistance, the trial court must hold an evidentiary hearing to determine whether counsel was in fact 1 In his motion for out-of-time appeal, Cole also contended that, under the law governing juveniles at the time he pleaded guilty, the superior court did not have jurisdiction to adjudicate him guilty. Although the trial court did not rule on this claim, Cole nevertheless repeats it in his brief to this Court. “At this stage of the proceedings, however, [Cole] has not been granted an out- of-time appeal, and no valid notice of appeal from his convictions has been filed in this case. Thus, we have no jurisdiction at this time to review any claims challenging his convictions.” Clark v. State, 310 Ga. 489, 490 n.2 (852 SE2d 522) (2020). responsible for the failure to pursue a timely appeal.’” Clark, __ Ga. at __ (quoting Rutledge v. State, 309 Ga. 508, 509 (847 SE2d 143) (2020)). Accord Burley v. State, 308 Ga. 650, 651-652 (842 SE2d 851) (2020); Collier, 307 Ga. at 376. “[A] trial court ‘abuses its discretion when it fails to make such a factual inquiry.’” Clark, __ Ga. at __ (quoting Burley, 308 Ga. at 651). Here, Cole alleged in his motion for out-of-time appeal that plea counsel’s ineffective assistance deprived him of his right to an appeal. The trial court therefore was required to hold an evidentiary hearing to inquire into the factual basis for Cole’s claim. See Clark, __ Ga. at __. Because the trial court denied Cole’s motion without holding such a hearing, we must “vacate the trial court’s judgment and remand ‘for the court to conduct an evidentiary hearing and determine whether plea counsel’s ineffective assistance was responsible for [Cole’s] failure to pursue a timely appeal.’” Id. at __ (quoting Rutledge, 309 Ga. at 510).2 2 On appeal, the District Attorney contends that Cole’s request for an out-of-time appeal is foreclosed by the doctrine of collateral estoppel based on Judgment vacated and case remanded with direction. Melton, C.J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur. DECIDED DECEMBER 7, 2020. Murder. Catoosa Superior Court. Before Judge Graham. Bobby J. Cole, pro se. Herbert E. Franklin, Jr., District Attorney, Megan C. Gaither, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee. a federal habeas corpus action that Cole filed in 2013 and by the prejudice the State has suffered with respect to its ability to defend against Cole’s motion because of Cole’s delay in filing it. However, because the trial court denied Cole’s motion for an out-of-time appeal shortly after it was filed and without conducting a hearing, these issues were not raised below or ruled on by the trial court, and we do not consider them on appeal. See Kennebrew v. State, 304 Ga. 406, 408 n.2 (819 SE2d 37) (2018) (“[L]egal issues must be raised and ruled on below in order to be properly considered on appeal.”); Collier, 307 Ga. at 375 (“At this time, we need not define the exact parameters of the prejudicial delay defense when raised in motions filed in the trial court, as the State did not raise this defense below.”). ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia vacated a trial court's denial of a man's request for a late appeal of his 1991 guilty plea to murder, ruling the judge had to first hold a hearing on whether his plea lawyer's failures cost him his appeal rights. ### Plain-language summary 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. ### Holding, as summarized 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. ### Disposition Judgment vacated and case remanded with direction. Melton, C.J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur. ### Why it matters 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. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (2,287 characters) are at https://georgiacommons.org/opinions/S20A1377.md?full=1