In 2006, Paul K. Murray pleaded guilty to three counts of child molestation, and he was sentenced to twenty years on each count to be served concurrently. On June 21, 2019, Murray moved for an out-of-time appeal, alleging in part that trial counsel was ineffective for failing to advise him of his right to a direct appeal.
1
The trial court dismissed the motion on August 30, 2019, without holding a hearing.
2
Murray appeals, pro se, and for the reasons that follow, we vacate the dismissal and remand the case for proceedings consistent with this opinion.
“A criminal defendant is entitled to an out-of-time appeal if his counsels constitutionally deficient performance deprived him of an appeal of right that he otherwise would have pursued.”
3
If the constitutional violation alleged by the defendant is ineffective assistance of counsel in providing advice about or acting upon an appeal of right [such as an appeal from the judgment of conviction entered on a guilty plea], that violation is reviewed under the familiar standard of Strickland v. Washington.[4] To meet his burden of proving that counsels ineffectiveness deprived him of his right to an appeal, the criminal defendant must show (1) that counsels representation fell below an objective standard of reasonableness, and (2) that counsels deficient performance prejudiced the defendant.5
However, with regard to the deficient performance prong of the Strickland test, “we cannot determine whether [Murrays] counsel performed deficiently in failing to file a notice of appeal because the trial court failed to hold an evidentiary hearing on the issue.” Accordingly, we must vacate the trial courts order denying [Murrays] motion for an out-of-time appeal and remand this case to the trial court for a determination of whether counsel performed deficiently in failing to inform [Murray] of his right to a direct appeal from his guilty plea.6
“We therefore vacate the trial courts order denying [Murrays] motion for an out-of-time appeal and remand this case to the trial court for proceedings consistent with this opinion.”
7
Judgment vacated and case remanded.
FOOTNOTES
1
. Murray initially sought discretionary review of the trial courts August 2019 dismissal of his motion for an out-of-time appeal. Although Murray has filed five prior appeals, all of them were dismissed. See Case Nos. A11A0456 (Nov. 18, 2010), A14A0568 (Feb. 17, 2014), A15D0029 (Sept. 22, 2014), A17A0394 (Oct. 13, 2016), and A17D0492 (June 21, 2017). Because Murrays convictions have not been the subject of a direct appeal, this Court granted his application for discretionary appeal pursuant to OCGA § 5-6-35 (j) and directed him to file his notice of appeal within ten days; Murray did so.
2
. In the dismissal order, the trial court noted that “[t]he issues asserted in the current motion relate to ineffective assistance of counsel and are not matters which can be resolved solely by the facts in the record.”
3
. Collier v. State, 307 Ga. 363, 364 (1), 834 S.E.2d 769 (2019).
4
. 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
5
. (Punctuation omitted.) Collier, 307 Ga. at 364-365 (1), 834 S.E.2d 769.
6
. Boone. v. State, 310 Ga. 651, 652, 853 S.E.2d 118 (2010), quoting Blackwell v. State, 306 Ga. 577, 578, 832 S.E.2d 352 (2019), and citing Collier, 307 Ga. at 376 (3), 834 S.E.2d 769. We note that a defendant alleging an ineffective assistance of counsel claim has “to demonstrate not that he would have prevailed in a timely appeal, but only that ‘there is a reasonable probability that, but for counsels deficient failure to consult with him about an appeal, he would have timely appealed.’ ” Blackwell, 306 Ga. at 578, 832 S.E.2d 352, quoting Ringold v. State, 304 Ga. 875, 881, 823 S.E.2d 342 (2019). See also Roe v. Flores-Ortega, 528 U. S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
7
. Boone, 310 Ga. at 652, 853 S.E.2d 118. In its brief, the State recognizes the holding in Collier, but argues that because Murray previously filed and then withdrew two habeas corpus actions, he waived his right to an out-of-time appeal. But the trial court dismissed Murrays out-of-time appeal without conducting a hearing, and it did not address the waiver issue in the dismissal order. Accordingly, this issue “[was] not ․ ruled on by the trial court, and we do not consider [it] on appeal.” Cole v. State, 310 Ga. 566, 567 n.2, 852 S.E.2d 533 (2020), citing Kennebrew v. State, 304 Ga. 406, 408 n. 2, 819 S.E.2d 37 (2018).
Doyle, Presiding Judge.
McFadden, C. J., and Hodges, J., concur.