Robert Alexander v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 19, 2013

The Court of Appeals hereby passes the following order: A13A0563. ALEXANDER v. THE STATE.

In October 2010, Robert Alexander filed a motion for an out-of-time appeal in the Superior Court of Chatham County, seeking the right to challenge the validity of his 1979 guilty plea to robbery by intimidation.1 Without conducting a hearing on Alexander’s motion, the trial court granted him an out-of-time appeal, noting that “it appears that [Alexander’s] lawyer failed to advise [him] that he had a right of appeal” from his guilty plea. Pursuant to that order, Alexander filed a notice of appeal, and this case was docketed in this Court in November 2012.

The State has filed a motion requesting this Court to remand this case back to the trial court for an evidentiary hearing so it can determine, as a matter of fact, who was responsible for Alexander’s failure to timely appeal from the judgment on his guilty plea.

Because the accused enjoys the right to effective assistance of counsel on appeal from a criminal conviction, we have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed

1 According to Alexander, his plea was invalid because, prior to entering his plea, he was not advised of two of his constitutional rights, as required by Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). As the trial court noted in its order granting an out-of-time appeal, attempts to locate a transcript from the 1979 guilty plea proceedings had been unsuccessful.

of his appeal rights. As we have stated, however, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. 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. Where the record does not indicate that the trial court adequately addressed this dispositive issue, we will remand for a hearing to consider it.

(Citations and punctuation omitted; emphasis supplied.) Eisele v. State, 238 Ga. App. 289, 289-290 (519 SE2d 9) (1999). See also Baker v. State, 273 Ga. 842, 843 (2) (545 SE2d 879) (2001) (“[A]n evidentiary hearing on the motion for out-of-time appeal . . . is necessary when the trial court is unable to determine from the record who was responsible for the failure to file a timely direct appeal.”) (citation omitted).

Under the circumstances presented, the State’s motion to remand this case for an evidentiary hearing is GRANTED.

Court of Appeals of the State of Georgia 04/19/2013 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.