--- title: Boone v. State collection: opinions id: S21A0171 cite_as: Boone v. State, 310 Ga. 651 (2020) canonical_url: https://georgiacommons.org/opinions/S21A0171 md_url: https://georgiacommons.org/opinions/S21A0171.md text_url: https://georgiacommons.org/opinions/S21A0171/text source_url: https://www.courtlistener.com/opinion/10367292/boone-v-state/ date: 2020-12-21 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/S21A0262.md next: https://georgiacommons.org/opinions/S20A1364.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 1755 omitted_url: https://georgiacommons.org/opinions/S21A0171.md?full=1 docket: S21A0171 citation: 310 Ga. 651 court: Supreme Court of Georgia case_type: criminal appeal authoring_justice: Melton disposition: Judgment vacated and case remanded with direction vote: Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not participating. word_count: 633 date_filed_source: courtlistener citations: - 853 S.E.2d 118 record_source: courtlistener legal_areas: - criminal law - constitutional law upstream_id: "10367292" summaries_model: claude-sonnet-5 --- # Boone v. State Supreme Court of Georgia, docket S21A0171, filed 2020-12-21, 310 Ga. 651. ## Opinion 310 Ga. 651 FINAL COPY S21A0171. BOONE v. THE STATE. MELTON, Chief Justice. On May 10, 2012, Odeirrick Boone entered a non-negotiated guilty plea to malice murder and various other offenses in connection with the robbery of a convenience store and the stabbing death of the store owner, Balk Sung. On January 31, 2020, Boone filed a pro se motion for leave to file an out-of-time appeal, arguing that his trial counsel was ineffective for having failed to inform him of his right to pursue an appeal of his convictions. The trial court denied Boone’s motion summarily and without holding a hearing, which prompted the current appeal. For the reasons that follow, and as the State properly concedes, the trial court’s order must be vacated and this case remanded to the trial court to hold a hearing to determine whether Boone is entitled to an out-of-time appeal due to the ineffective assistance of his plea counsel. “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.” Collier v. State, 307 Ga. 363, 364 (1) (834 SE2d 769) (2019). Where the constitutional violation alleged by the defendant is ineffective assistance of counsel in providing advice about or acting upon an appeal of right [such as an appeal from the judgment of conviction entered on a guilty plea], that violation is reviewed under the familiar standard of Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). [Cit.] To meet his burden of proving that counsel’s ineffectiveness deprived him of his right to an appeal, the criminal defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant. [Cit.] (Punctuation omitted.) Id. at 364-365 (1). However, with regard to the deficient performance prong of the Strickland test, “we cannot determine whether [Boone’s] counsel performed deficiently in failing to file a notice of appeal because the trial court failed to hold an evidentiary hearing on the issue.” Blackwell v. State, 306 Ga. 577, 578 (832 SE2d 352) (2019). Accordingly, we must vacate the trial court’s order denying Boone’s motion for an out-of-time appeal and remand this case to the trial court for a determination of whether counsel performed deficiently in failing to inform Boone of his right to a direct appeal from his guilty plea. See Collier, supra, 307 Ga. at 376 (3). With respect to the prejudice prong of the Strickland test, we emphasize that to be granted an out-of-time appeal Boone need not prove that he would have prevailed in a timely appeal, but only that “there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Ringold v. State, 304 Ga. 875, 881 (823 SE2d 342) (2019) (quoting Roe v. Flores-Ortega, 528 U. S. 470, 484 (II) (B) (3) (120 SCt 1029, 145 LE2d 985) (2000)). See also Blackwell, supra, 306 Ga. at 578; Collier, supra, 307 Ga. at 365 (1). We therefore vacate the trial court’s order denying Boone’s motion for an out-of-time appeal and remand this case to the trial court for proceedings consistent with this opinion. See Blackwell, supra, 306 Ga. at 578. Judgment vacated and case remanded with direction. Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not participating. DECIDED DECEMBER 21, 2020. Murder. Fulton Superior Court. Before Judge Barwick. Odeirrek D. Boone, pro se. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Richard B. Caplan, Assistant District Attorneys; 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. ## 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 order that had denied Odeirrick Boone's request for an out-of-time appeal, ruling he was entitled to a hearing on whether his plea lawyer failed to tell him about his appeal rights. ### Plain-language summary Odeirrick Boone pleaded guilty in 2012 to malice murder and other crimes for robbing a convenience store and stabbing the store's owner to death. Years later, in 2020, Boone asked the trial court for permission to file a late appeal, saying his trial lawyer never told him he had the right to appeal his convictions. The trial court denied his request without holding a hearing. The Supreme Court of Georgia found that the trial court could not properly decide whether Boone's lawyer had failed him without first holding a hearing to look at the facts. The court vacated (undid) the trial court's order and sent the case back so the trial court can hold a hearing and determine whether Boone's lawyer's failure to advise him about his appeal rights entitles him to file that appeal now, even though it is late. ### Holding, as summarized A defendant seeking an out-of-time appeal based on ineffective assistance must be given an evidentiary hearing to determine whether counsel's performance was deficient and whether there is a reasonable probability the defendant would have timely appealed but for that deficiency; denying the motion without a hearing was improper. ### Disposition Judgment vacated and case remanded with direction. Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not participating. ### Why it matters The ruling reinforces that Georgia trial courts cannot reject requests for late appeals based on ineffective counsel without holding a hearing to examine the facts. This protects defendants' appeal rights and gives Boone another chance to pursue review of his guilty plea and sentence. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (1,755 characters) are at https://georgiacommons.org/opinions/S21A0171.md?full=1