Appellant was convicted of felony murder, conspiracy to commit armed robbery, abandonment of a dead body, concealing the death of another, and possession of a firearm during the commission of a felony. On March 27, 2014, a disposition was entered that failed to resolve Count 4 of the indictment, which charged Appellant with armed robbery. On March 31, 2014, Appellant filed pro se a motion for a new trial. In September 2014, Appellant’s new post-conviction counsel filed another motion for a new trial. After the trial court in January 2019 entered an order purporting to deny the motion, Appellant, through counsel, filed a notice of appeal on February 22, 2019. On July 1, 2019, this Court dismissed Appellant’s appeal, Case No. S19A1281, as untimely. Specifically, Appellant’s notice of appeal was not filed within 30 days after March 27, 2014, the date that “the [trial] court entered a final disposition on [A]ppellant’s convictions for felony murder and other offenses[,]” according to our order; Appellant filed his pro se motion for a new trial while he was “ still represented by trial counsel,” making that motion “a legal nullity” under White v. State, 302 Ga. 315 (806 SE2d 489) (2017); and the motion for a new trial filed by post-conviction counsel “was untimely and as such did not toll the time for filing an appeal.” See OCGA § 5-6-38 (a) (“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.”). Remittitur issued on August 7, 2019. On February 20, 2020, the trial court entered a consent order granting Appellant an out-of-time appeal, and Appellant through counsel filed an “amended” motion for a new trial on March 2, 2020. The trial court entered an order purporting to deny that motion on November 18, 2020. Appellant, through counsel, filed a timely notice of appeal. On December 14, 2021, this Court dismissed Appellant’s second appeal, Case No. S22A0300, “because there [was] nothing in the record showing that Count 4 of the indictment was officially resolved, either by entry of an order of nolle prosequi or otherwise,” such that “Appellant’s case remain[ed] pending in the trial court[,]” under Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021). In that posture, we held, Appellant could only “obtain review of his convictions” by “follow [ing] the procedures for interlocutory appeal[.]” See OCGA § 5-6-34 (b). On January 18, 2022, the trial court entered an order of nolle prosequi as to Count 4. Following entry of the nolle prosequi order, Appellant filed a notice of appeal on February 1, 2022, bringing the case again before this Court. The record shows that we have issued two irreconcilable orders in Appellant’s case. On the one hand, we dismissed Appellant’s first appeal in July 2019, premised in part on final judgment having been entered on Appellant’s convictions on March 27, 2014. On the other hand, in dismissing Appellant’s second appeal in December 2021 for failure to follow interlocutory appeal procedures, we explicitly held that a final judgment had not yet been entered on his convictions. Under our December 2021 order, final judgment was not entered on Appellant’s convictions until January 18, 2022. “[A]ny ruling” by this Court “in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court[.]” OCGA § 9-11-60 (h) (emphasis supplied). “ Georgia’s appellate courts are required to adhere to the law of the case rule in all matters which they consider.” Hicks v. McGee, 289 Ga. 573, 578 (2) (713 SE2d 841) (2011). See also Hollman v. State, 305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019) (“It is well-established that the law of the case doctrine” as set out in OCGA § 9-11-60 (h) in the Civil Practice Act “applies to holdings by appellate courts in criminal cases.”); Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 837) (1996) (Where this Court ruled in a direct appeal that the appellant failed to preserve any objection to a particular jury instruction, and the appellant subsequently initiated habeas corpus proceedings, the habeas court was bound under the law of the case doctrine by this Court’s ruling “regardless of whether that ruling may [have been] erroneous.”). After remittitur issued on August 7, 2019, in Case No. S19A1281, we have ever since been required to adhere to our ruling in the July 2019 dismissal order regarding when the judgment on Appellant’s convictions became final. When the case returned to us on November 3, 2021, with the docketing of Case No. S22A0300, the law of the case doctrine prevented us from issuing a ruling that was inconsistent with that ruling, as we did in the December 2021 order that returned the case to the trial court. Thus, despite our holding in Seals, the trial court’s entry of an order of nolle prosequi as to Count 4 was not required to bring finality to the March 2014 sentence in Appellant’s case, and the January 18, 2022 nolle prosequi order could not give Appellant a new opportunity to litigate his motion for a new trial. As to the proceedings on Appellant’s granted out-of-time appeal, which resulted in the November 18, 2020 order denying his motion for a new trial, in Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), this Court eliminated the out-of-time-appeal procedure in trial courts, a procedure that we had created nearly fifty years earlier. In Cook, we held that a trial court is without jurisdiction to decide a motion for out-of-time appeal on the merits “because there was and is no legal authority[,]” that is, no constitutional or statutory authority, “ for motions for out-of-time appeal in trial courts.” Id. at 506 (5). Cook also concluded that this holding is to be applied to “all cases that are currently on direct review or otherwise not yet final[,]” id., and directed that “ pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final.” Id. at 505 (4). Accordingly, the trial court’s February 20, 2020 order granting Appellant’s motion for out-of-time appeal is vacated. Without the granted out-of-time appeal, the trial court lacked jurisdiction to decide Appellant’s March 2, 2020 motion for a new trial; therefore, this appeal from the trial court’s November 18, 2020 order denying that motion is dismissed. In addition, this case is remanded for entry of an order vacating the November 18, 2020 order and dismissing the March 2, 2020 motion. Finally, the trial court is directed to vacate any other rulings on filings subsequent to the granted out-of- time appeal, which it similarly lacked jurisdiction to decide under Cook. All the Justices concur. Ellington, Justice, concurring. Although I reluctantly agree with this Court’s decision, under the law of the case doctrine, to vacate the trial court’s order granting Robert Kyle Dougherty an out-of-time appeal, to dismiss this appeal from the order denying Dougherty’s motion for a new trial on the merits, and to remand the case to the trial court, I write separately to express my discomfort with where our precedent has led us: to denying a hearing on the merits based on the simple fact that a criminal defense attorney required his client to sign a motion for a new trial, rather than signing it himself without ever formally withdrawing as counsel of record. OCGA § 5-6-30 provides: It is the intention of this article [i.e., the Appellate Practice Act] to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the APA]. (Emphasis added.) The APA provides more reasons an appeal may not be dismissed than it provides grounds for dismissal. See, e.g., OCGA § 5-6-48. Yet eight years of post-conviction litigation in this case have culminated in a procedural disposition, not a merits-based decision, through no fault on Dougherty’s part. Here are the facts in rather more detail than the above order of the Court. After Dougherty participated with Stephen Lober in a 2012 attempted armed robbery that resulted in the fatal shooting of Trevorius Thomas, a Monroe County grand jury indicted Dougherty on nine counts, including armed robbery (Count 4). In 2013, Lober entered a guilty plea. At the beginning of Dougherty’s trial in March 2014, the prosecutor told the court, “I’m not going to call Count 4. We’re not going to proceed on the armed robbery charge.” Dougherty’s counsel responded, “we’re okay with that,” and the court commenced jury selection. A redacted indictment, omitting Count 4, was submitted to the jury when deliberations began. The jury found Dougherty guilty of felony murder, predicated on aggravated assault with intent to rob, and five related felonies. On March 27, 2014, the trial court sentenced Dougherty to an aggregate prison term of life plus 20 years. Like the verdict form and the redacted copy of the indictment submitted to the jury, the judgment simply skipped from Count 3 to Count 5. On March 31, 2014, four days after entry of judgment, Dougherty filed a motion for a new trial. The motion was typed on his trial attorney’s letterhead. The motion contained all of the elements of what we consider a “placeholder” motion for a new trial that trial lawyers typically file: the motion correctly identified the judgment, asserted the “general grounds,” requested an opportunity to amend the motion and to have a hearing after the trial transcript had been prepared and counsel had had sufficient time for review and research, and contained a certificate of service on the prosecutor. Such placeholder motions are filed by trial counsel so that a convicted defendant’s rights to post-conviction review are not lost by his failure to file either a motion for a new trial or a notice of appeal within 30 days after judgment[1] – including the right to assert that his trial attorney’s performance was deficient to an extent that deprived him of his Sixth Amendment right to counsel. A convicted defendant’s trial attorney is not permitted to assert a claim asserting his own ineffectiveness as counsel, but new post-conviction counsel can later amend a trial attorney’s placeholder motion to assert the claim. But, for reasons that were never developed in the record, Dougherty’s trial counsel did not sign the motion that was typed on his stationery. The motion had a signature line only for Dougherty, following the statement, “Defendant now files this motion over his [own] signature, representing herself [sic], until he completes financial arrangements with appellate counsel of his choice or moves this court to appoint counsel for him due to his inability to hire counsel.” The trial transcript was filed less than three months later, on May 22, 2014. In August 2014, the trial court ordered that Dougherty be brought to court for a motions calendar on September 17, 2014. On September 23, 2014, new post-conviction counsel filed an entry of appearance along with another placeholder motion for a new trial on Dougherty’s behalf. The trial court held a hearing on the motion on August 18, 2018. During that nearly four-year interval, the trial court entered multiple “bring back” orders, including one setting the hearing on the motion for a new trial for November 17, 2016. Post-conviction counsel requested a continuance, which the trial court granted, and the trial judge sua sponte recused himself from the case. Just four days before the scheduled August 18, 2018 hearing, post-conviction counsel amended the placeholder motion for a new trial she had filed. The trial court entered an order denying the motion on January 30, 2019. Dougherty, through counsel, filed a timely notice of appeal on February 22, 2019. In dismissing Dougherty’s first appeal, for the reasons set out in our order above, we advised Dougherty that he could seek an out-of-time appeal in the trial court, citing Rowland v. State, 264 Ga. 872, 875-876 (452 SE2d 756) (1995). Under Rowland and other cases, an out-of-time appeal was then an available remedy when a convicted defendant’s rights were lost because of trial counsel’s failure to act to preserve them. After we remitted the case to the trial court, the trial court entered a consent order granting Dougherty an out-of-time appeal, finding that Dougherty was entitled to an appeal as of right after his conviction and in fact exercised that right by filing a timely Motion for New Trial and subsequent Notice of Appeal. Trial counsel was ineffective for failing to withdraw from the case before the filing of [Dougherty's] pro se Motion for New Trial, which was written on said counsel’s legal station[e]ry. [Dougherty] relied on trial counsel’s advice in regards to protecting his appellate rights as evidenced by the Motion for New Trial being written on trial counsel’s station[e]ry. Dougherty, with assistance of counsel, then filed a motion for a new trial, and the trial court entered an order adopting its previous ruling denying Dougherty’s motion for a new trial on November 18, 2020. Dougherty filed a timely notice of appeal on December 16, 2020. Another year passed, and then this Court dismissed Dougherty’s second appeal, Case No. S22A0300, based on a recently issued decision under which we ruled that Dougherty’s case remained pending in the trial court, with no final and appealable judgment, because Count 4 was unresolved. See Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021). Upon return of the case to the trial court, the State submitted a proposed order of nolle prosequi as to Count 4 of the indictment, and the trial court entered the nolle prosequi order on January 18, 2022. Dougherty then filed a timely notice of appeal on February 1, 2022.[2] Does Dougherty, after jumping through every hoop the law placed before him, finally get to have the last stage of the criminal process at which he enjoys the right to counsel – appellate review of the judgment? No. By the time Dougherty secured an out-of-time appeal in the trial court, as we suggested when we dismissed his first appeal, and the trial court again ruled on the merits of his motion for a new trial, we had issued Seals. In our December 2021 dismissal order, we declared that judgment on Dougherty’s convictions actually had never become final, because of the vanished Count 4, and therefore his case needed another trip to the trial court before his convictions would be appealable. That journey, pointless according to our current ruling, kept Dougherty’s case in the “pipeline” long enough so that the out-of-time appeal, which otherwise would have allowed appellate review on the merits, came to be equally meaningless by our holding in Cook that invalidated any proceedings flowing from a granted out-of-time appeal in a court of conviction (as opposed to in a habeas court) “if direct review of the case remains pending or if the case is otherwise not final.” By application of the law of the case rule, we are reaching through a holding in our July 2019 dismissal order, all the way back eight years to Dougherty’s original 30-day window for filing a motion for a new trial. Although his trial counsel flatly abandoned him, we nevertheless presume that, at least until that 30-day window closed, the legal representation continued and hobbled Dougherty’s ability to protect his rights himself. In our July 2019 dismissal order, we cited White v. State, 302 Ga. 315 (806 SE2d 489) (2017), for this presumption.[3] In White, we held that the defendant’s pro se motions to withdraw his guilty plea, timely filed before the end of the term of court in which he was sentenced, were legal nullities, because, at a minimum, legal representation [of a defendant who enters a guilty plea] continues – unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see USCR 4.3 (1) – (3) – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea, during which time the court retains authority to change its prior orders and judgments on motion or sua sponte for the purpose of promoting justice. Id. at 319.[4] The purpose of the rule that a criminal defendant cannot simultaneously exercise his constitutional right to represent himself and his constitutional right to the assistance of counsel is to prevent the disruption of dueling defenses.[5] Nothing like that happened here. In effect, at least since our decision in White, we are pitting these important rights against each other, to the detriment of both. The result of the unrebuttable presumption of continued representation is that the right to counsel itself locks the doors of the courthouse against a convicted defendant, abandoned by his trial counsel, until the clock runs out on his rights.[6] There may be the rare defendant who, in a few short weeks, potentially while transitioning from jail into the state penitentiary system and through the diagnostic and classification process, manages either to obtain new counsel or to have his right to self-representation formally restored to him under Faretta v. California, 422 U. S. 806, 818-821 (III) (A) (95 SCt 2525, 45 LE2d 562) (1975), so that his pro se filings will not be nullities. See Martin v. State, 306 Ga. 538, 539 n.1 (832 SE2d 402) (2019). Furthermore, many convicted defendants, robbed of post-conviction review by trial counsels’ failures, can at least seek the remedy of an out-of-time appeal or other relief in habeas proceedings, albeit without any right to appointed counsel in such civil proceedings,[7] if they can file a petition for a writ of habeas corpus in time.[8] Dougherty, however, has already lost even that dubious opportunity: his judgment became final in April 2014, far longer ago than the four years allowed under OCGA § 9-14-42 to initiate habeas proceedings. Dougherty will never have an appellate decision on the merits of his motion for a new trial or other matters he could have raised in a direct appeal, solely because his trial attorney refused to sign that first motion for a new trial, in violation of his duties as a member of the bar and an officer of the court. Decisions of this Court have dictated this outcome.[9] How far we have strayed from the intent of OCGA § 5-6-30. I am authorized to state that Justice LaGrua joins in this concurrence.
