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Duncan v. State

The trial court erred in refusing to address the defendant's motion for an out-of-time appeal, since he claimed that he was denied his right to a direct appeal due to ineffective assistance of counsel.

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Douglas Clarence Duncan was convicted in 1988 in Butts County Superior Court of kidnapping with bodily injury and armed robbery and sentenced to life imprisonment on each offense. In 2007, Duncan filed four pro se motions in the trial court, including a motion for an out-of-time appeal in which he claimed that he was denied the right to a direct appeal of his conviction because of ineffective assistance of counsel. Duncan appeals from the trial court’s order finding that it lacked jurisdiction to consider the motions. 1. As to Duncan’s motion seeking an out-of-time appeal, the State concedes that the trial court erred by refusing to address the motion, and that the case must be remanded for the trial court to consider this claim. “An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken.” Smith v. State , 266 Ga. 687 470 SE2d 436 1996. The burden is on the movant to establish that the right to a direct appeal was frustrated by ineffective assistance of counsel. Simmons v. State , 276 Ga. 525, 526 579 SE2d 735 2003. Where the evidence is sufficient to authorize the trial court to find that the movant’s conduct caused the loss of the right to direct appeal, the movant has no right to an out-of-time appeal. Id. When a movant seeks an out-of-time appeal alleging that the right to direct appeal was frustrated by ineffective assistance of counsel, the trial court must inquire into the facts to determine responsibility for the failure to pursue a timely direct appeal, and the failure to make such inquiry is an abuse of the court’s discretion. Id. Accordingly, the trial court erred by refusing to consider the motion, and this case is remanded for the trial court to inquire into the facts relevant to the motion.

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