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Harrell v. State

Defendant was entitled to a hearing to determine whether he was ultimately responsible for failing to file a timely direct appeal.

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Randall Blair Harrell appeals the trial court’s order denying his motion for an out-of-time appeal of his 1997 convictions in Habersham County of statutory rape, OCGA § 16-6-3, and child molestation, OCGA § 16-6-4. For the reasons which follow, we reverse and remand with direction.

The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. 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. Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and 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 of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. 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. We apply the “any evidence” standard to findings of the trial court, acting as the trier of fact, with regard to whether counsel informed the defendant of his appeal rights and whether the defendant voluntarily waived those appeal rights.

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