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Is It Really Necessary For the Trial Court to Rule on Issue to Appeal That Issue?

by merlin on May 8th, 2017
  • Sumo

        

In the 2011 Supreme Court case of Tyner v. State ( 289 Ga. 592), the Court discussed an earlier case I have written about on this site, Wiggins v. State, 288 Ga. 169 (Ga. 2010), in which the Georgia Supreme Court dismissed the argument of the Defendant that inclusion on the Sex Offender Registry was a violation of his Sixth Amendment rights

(“guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you”)

because that argument was not raised at the trial court level.

The Supreme Court of Georgia 2011 case of Tyner v. State, 289 Ga. 592, 714 S.E.2d 577, below, involves the interesting issue of the entry of a guilty plea to an accused malice murder, followed by an allegation that the plea was not voluntarily entered.  However, there is no evidence of this involuntariness on the record that the Court has in front of it, so it has nothing to decide on (the Court instead decides to pursue important Constitutional issues implicated by the absence of a record).

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Charles H. Frier, Smyrna, for appellant.Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Paige R. Whitaker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

NAHMIAS, Justice.        
        

This is Curtis Tyner’s much delayed direct appeal of his 1984 malice murder conviction based on his guilty plea. Because the case is here on direct appeal and the record does not show that Tyner was advised of his right against self-incrimination as we have held is required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), his guilty plea was invalid and we must reverse his conviction.

1. According to the factual basis offered in support of the guilty plea, in April 1984, IBM executive Martha Anne Mickel hired Tyner to paint her apartment. On April 15, Tyner forced Ms. Mickel into a car, tied her up, sexually assaulted her, and then dumped her, unconscious, in a creek. The autopsy showed that the victim was still alive and breathing when she was put into the water and that the cause of death was drowning. The police identified Tyner as a suspect from evidence found in the victim’s apartment. He confessed to the police a few days later after being advised of his rights, even telling them where to find the victim’s purse. Tyner denied, however, knowing that the victim was still breathing when he threw her in the creek. On April 27, 1984, Tyner was indicted for malice murder, and Carl Greenberg from the Fulton County Public Defender Office was appointed to represent him.

        On September 25, 1984, Tyner pled guilty to malice murder. He later said that he pled guilty because the State had indicated that it would seek the death penalty if the case went to trial. The transcript of the plea hearing shows that Tyner was advised of and waived two of his three Boykin rights—the right to a jury trial and the right to confront the witnesses against him. However, he was not advised of his third Boykin right, the right against self-incrimination.

        The trial court accepted the guilty plea and sentenced Tyner to life in prison. At the close of the hearing, the prosecutor suggested that the court should “[a]dvise him of his rights I think,” apparently referring to Tyner’s limited right to appeal his conviction and sentence based on a guilty plea. The court responded, “I don’t think there’s any need,” and the hearing ended.

        Within three months of the guilty plea, Tyner began filing pro se pleadings seeking review of his sentence and documents related to his case so that he could “get it back in court” and prepare “his attack on the erroneous issue in his case.” Tyner noted in a 1987 filing that “[a]n indigent defendant is entitled to obtain free of charge a transcript of his trial for purposes of a direct appeal of his conviction,” and in another filing he complained that his letters to Greenberg had all come back marked “Return to Sender.”

        In 1986, 1987, and 1990, Tyner filed pro se petitions for habeas corpus, and the habeas court conducted an evidentiary hearing on each petition before denying relief. In 2008, Tyner filed a fourth habeas petition, which was dismissed as successive and procedurally barred. In 2009, Tyner filed a pro se motion for out-of-time appeal of his conviction, which the trial court summarily dismissed, and a pro se motion for new trial, which the court dismissed as untimely.

         In April 2010, Tyner filed a pro se notice of appeal of the order denying an out-of-time appeal, and the following month he filed a motion for appointment of counsel. The trial court granted the motion, and Tyner, now represented by counsel apparently for the first time since 1984, withdrew his notice of appeal and filed a second motion for out-of-time appeal on June 30, 2010. Tyner alleged that he was not told that he had a right to appeal his conviction, that the court’s remarks at the plea hearing gave him the impression that he could not appeal, and that his failure to file a timely appeal could not be attributed to any error or desire on his part. See Birt v. Hopper, 245 Ga. 221, 221 n. 1, 265 S.E.2d 276 (1980) (explaining that “[o]ut-of-time appeals are granted where a defendant in a criminal case is not advised of his right of appeal or his counsel fails to appeal” as directed). The State did not file a response to the motion or request a hearing, and on July 12, 2010, the trial court granted Tyner an out-of-time appeal. Tyner filed a timely notice of appeal of his conviction a week later.

         2. Tyner’s sole enumeration of error is that his guilty plea is invalid under Boykin because the State failed to meet its burden of showing that he knowingly and voluntarily waived his right against self-incrimination. With limited exceptions, the entry of a guilty plea waives all defenses except those that relate to the knowing and voluntary nature of the plea. See Moore v. State, 285 Ga. 855, 858, 684 S.E.2d 605 (2009). Once a defendant raises a question about the validity of a guilty plea, the State bears the burden to establish that the plea was knowingly and voluntarily entered. See King v. State, 270 Ga. 367, 369, 509 S.E.2d 32 (1998) (on direct appeal); Bazemore v. State, 273 Ga. 160, 161, 535 S.E.2d 760 (2000) (in habeas corpus). In reviewing a direct appeal from a guilty plea, this Court must evaluate the enumerated errors based solely on “the trial court record, including the record of the guilty plea and sentencing as well as any subsequent evidence that was properly presented to the reviewing court, assuming all of that is also properly included in the record on appeal.”

Smith v. State, 287 Ga. 391, 403, 697 S.E.2d 177 (2010).

        The State concedes the existing record does not show that Tyner was advised of his right against self-incrimination and acknowledges that our usual course where we find a Boykin violation on direct appeal is to reverse the invalid conviction and remand the case for further proceedings. The State nevertheless asks us not to decide the Boykin issue but first to remand the case to the trial court, where Tyner should be required to file a motion to withdraw the guilty plea, which would give the State the opportunity to try to show that Tyner’s attorney informed him of his right against self-incrimination before he pled guilty. See Bazemore, 273 Ga. at 161, 535 S.E.2d 760 (noting that the State may carry its burden of showing that the defendant was advised of and waived his Boykin rights not only with the plea hearing record but with extrinsic evidence properly in the record, including evidence from plea counsel). However, the State cites no authority supporting such a procedure, and we have explained that “a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea.” Smith, 287 Ga. at 403 n. 7, 697 S.E.2d 177.

         3. Shortly before oral argument, the State filed a motion to dismiss Tyner’s appeal. The State argued that the trial court erred in granting an out-of-time appeal and that Tyner’s unsuccessful habeas petitions should bar us from reversing his conviction. However, we see no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).1 Likewise, the State has conceded that Tyner’s Boykin claim was dismissed for procedural default when he raised it for the first time in his fourth habeas petition, which was not an adjudication on the merits and thus is not res judicata as to his current claim. See Wiggins v. State, 288 Ga. 169, 170, 702 S.E.2d 865 (2010) (holding that claims raised on direct appeal are not barred by denial of a prior habeas petition raising the identical claims where the habeas court ruled that the claims were procedurally defaulted instead of denying the claims on the merits).

        4. We recognize that reversal of Tyner’s 27–year–old murder conviction may make it difficult for the State to try him or negotiate another plea. We also note that the record does not suggest that Tyner would have refused to go through with his guilty plea if during the plea hearing the prosecutor had added the words “and the right against compulsory self-incrimination” after advising Tyner of his “right to cross-examine witnesses called by the State or call witnesses in your own defense.” Nor has Tyner alleged any such prejudice. Instead, the record as a whole indicates that Tyner freely made an informed and very reasonable decision to plead guilty, with the assistance of able counsel and after colloquy in open court, because he understood that the evidence that he had committed a horrific abduction, sexual assault, and murder was strong and his guilty plea would prevent the State from seeking the death penalty if the case went to trial.

         Nevertheless, in a number of decisions over the past decade this Court has interpreted advice and waiver of the “three Boykin rights” as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred. See, e.g., Wilson v. Kemp, 288 Ga. 779, 780–781, 707 S.E.2d 336 (2011); Arnold v. Howerton, 282 Ga. 66, 67–68, 646 S.E.2d 75 (2007). Under those decisions, Tyner’s guilty plea was invalid, and his conviction must be reversed and the case remanded to the trial court for further proceedings.

        Presiding Justice Carley dissented in Wilson, arguing that the Court has interpreted Boykin too formalistically and more strictly than the majority of other courts in the country. See Wilson, 288 Ga. at 780, 782, 707 S.E.2d 336 (Carley, P.J., joined by Nahmias, J., dissenting). Moreover, in 1982 this Court unanimously held, in contradiction to Wilson, that “[w]e decline to adopt a rule which would demand that failure to advise an accused of his right against self-incrimination invalidates a guilty plea in a case where the record reflects that the central considerations of Boykin have otherwise been met.” Goodman v. Davis, 249 Ga. 11, 14, 287 S.E.2d 26 (1982). Compare Wilson, 288 Ga. at 780, 707 S.E.2d 336 (reversing Wilson’s guilty plea because there was no showing that he was specifically advised of the right to remain silent at trial, even though the trial court did advise Wilson that he had “a right to remain silent” at the guilty plea proceeding and Wilson’s counsel testified that he had advised Wilson of the “constitutional rights” he was waiving by pleading guilty). Under Goodman, Tyner’s guilty plea would likely be deemed valid and his conviction affirmed.

         It is not entirely clear how this Court got from Goodman to Wilson.2 Goodman remains on the books, having never been overruled or disapproved. But it was not cited by any party in this case, perhaps because it is so plainly inconsistent with our more recent precedent. The bottom line is this: Until the Supreme Court of the United States grants certiorari in this or a future case and tells us we are applying Boykin incorrectly, or a majority of this Court is convinced that we should re-examine our cases in this area and revert to our earlier understanding of Boykin, any defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the “three Boykin rights” and he properly presents the issue to a reviewing court.

        Finally, we should note that the State could have avoided the result in this case. The State could have ensured that the right against compulsory self-incrimination was discussed during Tyner’s plea hearing, and it could have ensured that he was advised of and had effective representation regarding his right to appeal his conviction. Indeed, had Tyner filed his direct appeal during the 15 or so years after his 1984 guilty plea, his conviction would likely have been affirmed under Goodman. In addition, while the State was entitled to rely on procedural bars and the successive petition statute to defeat Tyner’s habeas corpus petitions, including the final one in which he raised a Boykin claim, it could have sought alternatively to litigate the merits of his guilty plea in a habeas hearing, had it wanted to expand the record.

        Judgment reversed and case remanded.

        All the Justices concur, except HUNSTEIN, C.J., BENHAM, THOMPSON, HINES and MELTON, JJ., who concur in Divisions 1, 2, and 3, and in the judgment.

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Notes:

        1. Accordingly, the merits of the order granting this out-of-time appeal—including whether the trial court should have held a hearing to determine whether Tyner was at fault for the failure to timely appeal and the effect of the court’s order dismissing Tyner’s first motion for out-of-time appeal—are not before us for decision.

        2. It appears that the first time this Court even mentioned “the three Boykin rights” was in 1999—30 years after Boykin and 17 years after Goodman—as dicta in a decision involving the issue of who has the burden of proof when a recidivism defendant claims that a prior conviction by guilty plea was invalid under Boykin. See Nash v. State, 271 Ga. 281, 285, 519 S.E.2d 893 (1999). The Nash majority quoted a Louisiana case that said:

        If the State introduces anything less than a “perfect” transcript [of the prior guilty plea], … the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

        State v. Shelton, 621 So.2d 769, 780 (La.1993) (emphasis added). Interestingly, two years later the Court disavowed the immediately preceding portion of this quotation. See Motley v. State, 273 Ga. 732, 733 n. 3, 546 S.E.2d 468 (2001) (“The adoption [in Nash ] of the burden of proof set forth in Shelton was not an adoption of Louisiana’s requirement, if any, that a guilty plea must be made ‘with an articulated waiver of the three Boykin rights.’ ” (emphasis in original)). The “three Boykin rights” appear to have assumed their preeminent status in 2001, in Britt v. Smith, 274 Ga. 611, 556 S.E.2d 435 (2001). There a four-Justice majority held that to make a guilty plea valid, defendant must be advised only of the three constitutional rights mentioned in Boykin, and not the other rights enumerated in Uniform Superior Court Rule 33.8. See 274 Ga. at 614, 556 S.E.2d 435. The majority explained that “our decisions dealing with the validity of a guilty plea are generally couched in terms of the defendant’s waiver of the three Boykin rights,” id. at 614, 556 S.E.2d 435, although the only case cited for this proposition was Nash. Neither Nash nor Britt mentioned Goodman or similar precedent interpreting Boykin more flexibly. In any event, for the last decade the Court has focused strictly and solely on what the record shows regarding the “three Boykin rights.”

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        However, the Tyner case has since been overruled on that issue, because a procedural unfairness is still a fundamental unfairness.  There is much grumbling about the idea of lawyers dealing with technicalities, but substantive justice carries the day, ultimately.

        In other words, the Tyner case was not followed by subsequent cases, reaffirming the ability of a higher court to review an issue if that issue was preserved for the record – all for the purpose of achieving substantial Justice.

        Reviewing the case shows a likely answer for the Court’s stance, in that they disregarded the longstanding rule on preservation of an issue for appeal because they were seeking to ensure access to substantial justice in accordance with the Boykin rule, but they were not trying to “throw the baby out with the bathwater” or encourage frivolous appeals.

        The 2016 Court of Appeals of Georgia case, Raheem v. State,  339 Ga.App. 859, 794 S.E.2d 418 set the tone for subsequent decisions:

Gerard Bradley Kleinrock, Decatur, for Appellant.

Robert D. James Jr., Deborah D. Wellborn, for Appellee.

Barnes, Presiding Judge.

        In these companion appeals, the trial court granted Haneef Abdul Raheem’s motions for out-of-time appeals of his 1981 conviction for motor vehicle theft and his 1982 burglary conviction. Following our review and finding that the record does not establish that he was fully advised of his rights under Boykin v. Alabama , 395 U.S. 238, 243–244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we reverse the convictions.

        In Raheem v. State , 333 Ga.App. 821, 777 S.E.2d 496 (2015) (Raheem I ), Raheem appealed from the trial court’s denial of his motion for out-of-time appeals of his 1982 conviction for burglary, 1981 conviction for motor-vehicle theft, and 1985 conviction for armed robbery. The relevant facts as presented in Raheem I establish that

[i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self-incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas…. Raheem contend[ed] that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights. The State moved to dismiss Raheem’s motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State’s motion, noting that there were no transcripts of any of Raheem’s plea hearings. Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

(Footnote omitted.) 333 Ga.App. at 822, 777 S.E.2d 496.

        Following a hearing on his motion for an out-of-time appeal, the trial court found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination,” but found that the record demonstrated that the plea in the 1985 case was knowing and voluntary. Raheem I , 333 Ga.App. at 822–823, 777 S.E.2d 496. The trial court then “found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced…. [because] there was no evidence that the result of the proceedings would have been different if Raheem had taken his case to trial rather than pleading guilty.” Id. at 823, 777 S.E.2d 496.

        Raheem appealed the denial of his motion. In Raheem I , we affirmed the trial court’s denial of Raheem’s motion for an out-of-time appeal of the 1985 armed-robbery conviction. 333 Ga.App. at 827–828 (2), 777 S.E.2d 496. We further agreed with the trial court that the record demonstrated that during Raheem’s 1981 and 1982 plea proceedings, he was only advised of one of the three constitutional rights he was waiving by pleading guilty pursuant to Boykin , namely, the right to a jury trial, but not informed of his right against self-incrimination or the right to confront his accusers. Raheem I , 333 Ga.App. at 824–825 (1), 777 S.E.2d 496. However, we reversed the trial court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and 1982 convictions, upon finding that the trial court had denied the motion “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to Raheem himself.”1 (Footnotes omitted.) Id. at 826 (1), 777 S.E.2d 496. We “remand[ed] the case with direction that the court conduct the requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.” Id.

Upon remand, and following a hearing, the trial court found that Raheem’s failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his attorney’s failure to advise him that he had the right to appeal and that he had a legitimate issue for appeal, given that the record failed to establish that he was informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s motion for an out-of-time appeal of the two convictions.

        1. Although the State contends that the trial court erred in granting Raheem’s motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an out-of-time appeal are not before us. Tyner v. State , 289 Ga. 592, 594 (3), 714 S.E.2d 577 (2011), overruled in part on other grounds, Lejeune v. McLaughlin , 296 Ga. 291, 297 (2), 766 S.E.2d 803 (2014). There is “no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in this case] it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at 594 (3), 714 S.E.2d 577.2

        2. Raheem raises identical arguments on appeal in cases A16A1362 and A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were not knowingly and voluntarily entered because he was not informed of the constitutional rights required under Boykin before he entered his plea. Raheem asserts that the State did not meet its burden of establishing by the record that he was advised of the three Boykin rights he was waiving by pleading guilty.

 

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights….. [A]ny defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the three Boykin rights and he properly presents the issue to a reviewing court. Nevertheless, our Supreme Court has recognized that nothing in Boykin requires the State during a guilty plea proceeding to use any precisely-defined language or ‘magic words.

 

(Citations and punctuation omitted.) Childs v. State , 311 Ga.App. 891, 891–892 (1), 717 S.E.2d 509 (2011).

The State bears the burden on direct review to establish that the plea was knowingly and voluntarily entered. King v. State , 270 Ga. 367, 369, 509 S.E.2d 32 (1998).

The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

(Citation and punctuation omitted.) Nash v. State , 271 Ga. 281, 285, 519 S.E.2d 893 (1999).

        Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In both cases, there is a pre-printed form included in the record labeled “Transcript.” The only Boykin right acknowledged on the form is the right to a jury trial. Trial counsel for the 1982 plea testified that “the Boykin rights weren’t specifically considered at that time because the court system was unaware of it or didn’t use the Boykin case in their plea process.” The State concedes that the record on its face does not demonstrate that Raheem was advised of and waived all three Boykin rights, but asserts that any such deficiency was harmless because Raheem never claimed that he would have chosen to go to trial instead of taking a plea, had he be fully advised of all of his Boykin rights.3

Regardless of the practices in place at that time,

[t]he requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. Rather, the procedural element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. Thus, Boykin imposed a constitutional record-keeping requirement on the states if they hoped to insulate state guilty pleas from future attacks on federal constitutional grounds.*

(Footnotes and punctuation omitted; emphasis supplied). Wiley v. Miles , 282 Ga. 573, 575–576 (2), 652 S.E.2d 562 (2007) (establishing that Boykin applies to guilty pleas entered after June 2, 1969).

        Our appellate courts have “interpreted this advice and waiver of the three Boykin rights as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred.” Tyner , 289 Ga. at 595 (4), 714 S.E.2d 577.4 Here it is undisputed that the record does not disclose that Raheem was advised of his right against self-incrimination or the right to confront witnesses.

        Accordingly, because Raheem was not a fully advised of the rights he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not substantiate that his pleas were knowingly and voluntarily. Thus, his guilty pleas are invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to the trial court for further proceedings consistent with this decision. See Vera v. State , 329 Ga.App. 177, 764 S.E.2d 427 (2014).

Judgments reversed.

Doyle, C.J., Andrews, P.J., Miller, P.J., Ellington, P.J., and Phipps, PJ., Dillard, McFadden, Boggs, Ray, Branch, McMillian, and Peterson, JJ concur. Rickman, and Mercier, JJ concur in judgment only.

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Notes:

1 “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State , 276 Ga. 525, 526, 579 S.E.2d 735 (2003). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.”(Citations omitted.) Glass v. State , 248 Ga.App. 91, 92 (1), 545 S.E.2d 360 (2001).

2 We disapprove of the following cases to the extent that they could be relied upon to stand for the proposition that the State can timely appeal from an order granting an out-of-time appeal: Fineza v. State , 255 Ga.App. 835, 567 S.E.2d 17 (2002) ; Towns v. State , 228 Ga.App. 267, 491 S.E.2d 497 (1997).

3 The State asserts this argument within the context of its claim that trial counsel was not ineffective and thus that the motion for the out-of-time appeals should not have been granted. As noted in Division 1, any challenge to that order is not before us on review.

4 Per the holding in Lejeune v. McLaughlin , 296 Ga. 291, 766 S.E.2d 803 (2014), the burden now shifts in habeas corpus cases to the defendant to prove that his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune remotely suggesting that the State no longer has the burden of demonstrating, in the context of a direct appeal from a judgment of conviction, that a defendant’s guilty plea was voluntary, knowing, and intelligent.” Raheem I , 333 Ga.App. at 821 (1) n. 13, 777 S.E.2d 496.

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This approach is consistent with the approach in Tyner.  Both cases provided justice to the person aggrieved and avoided an absurd result that would be repugnant to the goal of substantial justice.  One case required going beyond the wording of the pleadings to accomplish that end, but one case required staying strictly within the wording of the pleadings to achieve it.

 

Nonetheless, it seems that the safest approach for practitioners is to stick with preserving the issue for appeal!

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