LUNSFORD v. THE STATE

Court of Appeals of Georgia1999-03-30No. A99A0296

237 Ga. App. 696515 S.E.2d 198

Summary · law.co

Holding. The trial court did not abuse its discretion in denying Lunsford's motion for an out-of-time appeal and his motion for new trial. The judgment was affirmed.

Matthew Lunsford was convicted of armed robbery after admitting he stole gas and money from a convenience store but claiming he was unarmed. A store clerk testified she saw a box-cutter in his hand and felt something sharp pressed against her back. Lunsford received a ten-year sentence and did not appeal. Seventeen months later, he sought permission to file a late appeal and moved for a new trial, claiming his trial attorney had failed to inform him of his appellate rights. At the hearing, the attorney testified that he had explained to Lunsford immediately after conviction that he would not handle the appeal and that Lunsford had 30 days to file one. Lunsford denied receiving this explanation.

The trial court denied both motions, finding no basis for an out-of-time appeal. The trial judge, as fact-finder, was entitled to credit the attorney's account over Lunsford's denial. The court also rejected the late motion for new trial under the rule requiring good cause when such motions are filed more than 30 days after judgment. Because the out-of-time appeal was properly denied, the motion for new trial failed on the same grounds.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether trial counsel's alleged failure to inform defendant of appellate rights justified an out-of-time appeal
Credibility of conflicting testimony between attorney and defendant regarding advice given after conviction
Standards for granting out-of-time appeals based on ineffective assistance of counsel
Timeliness requirements for motions for new trial

Procedural posture

Lunsford sought discretionary appellate review of the trial court's denial of his motion for an out-of-time appeal and motion for new trial filed seventeen months after his conviction.

Authorities cited

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Opinion · public domain

majority opinion

Beasley, Presiding Judge.

During trial, Matthew Lunsford admitted stealing gas and money from a convenience store but contended he was unarmed. The store clerk, who recognized Lunsford, testified she saw a box-cutter in his hand immediately after he stuck something sharp in her back. The jury found him guilty of armed robbery, OCGA § 16-8-41, and he was sentenced to ten years. He did not appeal. Seventeen months later through different counsel Lunsford moved for leave to file an out-of-time appeal and for new trial. After a hearing, the trial court denied the motions. We granted Lunsford’s application for discretionary appeal pursuant to OCGA § 5-6-35 (j), for an order denying a motion for an out-of-time appeal is a final judgment which is directly appealable under OCGA § 5-6-34 (a). Rowland v. State, 264 Ga. 872, 876 (2) (452 SE2d 756) (1995).

“(A)n out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken.” [Cit.] However, “an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of his. appellate rights, and does not preempt his client’s decision to appeal. . . . (N)either the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.” [Cit.] The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion. [Cit.]

Decided March 30,1999

Reconsideration denied April 20,1999.

Dodd & Dennis, Roger J. Dodd, Saleem D. Dennis, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Lunsford asserts his out-of-time appeal should have been granted because his counsel failed to inform him of his “rights to file a Motion for New Trial, Notice of Appeal, or Direct Appeal.” At the hearing on the motion, Lunsford’s trial counsel testified that immediately after the conviction he explained to Lunsford that he would not handle his appeal because he saw no error, and that Lunsford had 30 days to appeal. Lunsford denied this.

The trial court as finder of fact may believe the attorney’s testimony. We find no abuse of discretion.

2. Lunsford asserts the trial court erred in dismissing his motion for new trial on the grounds that it was untimely, because he was not properly informed of his appellate rights. “ Tn any case where a motion for a new trial is made more than 30 days after the entry of judgment on the verdict, some good reason must be shown why the motion was not made within the time allowed by law.’ ” Because the court did not err in denying the motion for out-of-time appeal based on the same ground, this enumeration fails.

Judgment affirmed.

Blackburn and Barnes, JJ, concur.

Penrod v. State, 233 Ga. App. 532-533 (504 SE2d 757) (1998).

See Murphy v. Balkcom, 245 Ga. 13, 14 (262 SE2d 784) (1980) (trial court entitled to believe attorney’s testimony about his course of practice explaining the right to appeal to his clients).

See Penrod v. State, supra at 533 (“the trial court was authorized to believe [attorney’s] testimony that he advised [defendant] of his right to appeal and that [defendant] did not elect to exercise that right.”).

Riggins v. State of Ga., 197 Ga. App. 612 (399 SE2d 96) (1990).