McDaniel v. State

M
In the Supreme Court of Georgia



                               Decided: April 5, 2021


             S21A0217. MCDANIEL v. THE STATE.


     WARREN, Justice.

     Appellant Robert McDaniel appeals pro se from the trial court’s

denial of his motion for out-of-time appeal, his general demurrer,

and his motion in arrest of judgment. For the reasons that follow,

we affirm in part and dismiss in part.

     On May 12, 2014, a Paulding County grand jury indicted

McDaniel for malice murder (Count 1); felony murder (Count 2);

possession of a firearm during the commission of the offense of

murder (Count 3); aggravated assault, family violence (Count 4);

possession of a firearm during the commission of aggravated assault

(Count 5); and aggravated stalking (Count 6) in connection with the

shooting death of Maria Nunez-McDaniel.       The grand jury also

indicted McDaniel for aggravated assault (Count 7) and possession
of a firearm during the commission of a felony (Count 8) in

connection with an assault on Julia Olmos.

     On November 4, 2014, McDaniel entered a negotiated guilty

plea to malice murder, possession of a firearm during the

commission of the offense of murder, and aggravated stalking, as

well as to the aggravated assault against Olmos. As part of the plea,

Counts 2, 5, and 8 were nolle prossed, and Count 4 was merged with

the malice murder count. McDaniel was sentenced to serve life with

the possibility of parole for malice murder, a probated five-year

consecutive sentence on Count 3, and two ten-year concurrent

sentences on Counts 6 and 7.

     In 2018, McDaniel filed a motion for out-of-time appeal, which

the trial court denied without a hearing.        McDaniel filed an

application for discretionary appeal, which we granted under OCGA

§ 5-6-35 (j) because McDaniel had a right of direct appeal. See Case

No. S18D1312 (June 15, 2018). McDaniel then filed a notice of

appeal, and we ultimately vacated the trial court’s order denying his

motion for out-of-time appeal and remanded the case for the trial

                                 2
court to hold an evidentiary hearing and determine whether plea

counsel’s constitutionally ineffective assistance was responsible for

McDaniel’s failure to pursue a timely appeal.          See Case No.

S19A0660 (Oct. 21, 2019); Collier v. State, 

307 Ga. 363

, 376 (834

SE2d 769) (2019).

     Following that remand, McDaniel filed a general demurrer and

motion in arrest of judgment in the trial court, contending that the

malice murder and aggravated assault counts of his indictment were

defective because they failed to allege essential elements of those

crimes. In July 2020, the trial court held a hearing on McDaniel’s

motion for out-of-time appeal, his general demurrer, and his motion

in arrest of judgment. On August 27, 2020, the trial court entered

an order denying McDaniel’s motion for out-of-time appeal, ruling

that his plea counsel did not perform deficiently in failing to file an

appeal on McDaniel’s behalf. The next day, the trial court entered

an order denying McDaniel’s general demurrer and his motion in

arrest of judgment, ruling that they were “untimely and

substantively lack[ed] any merit.”

                                  3
     1. In his notice of appeal, McDaniel specified that he was

appealing from the trial court’s August 27, 2020 order denying his

motion for out-of-time appeal. However, he did not challenge that

order in his initial brief on appeal. And even to the extent his reply

brief could perhaps be construed as challenging that order,

McDaniel is not entitled to have the challenge considered when it is

not raised in his initial brief. See Williams v. State, 

307 Ga. 689

,

689 n.2 (838 SE2d 314) (2020) (holding that a pro se appellant “‘who

raises an argument for the first time in a reply brief is not entitled

to have that argument considered’”) (citation omitted). In any event,

however, a claim that the trial court erred in denying McDaniel’s

motion for out-of-time appeal would be without merit. 1

     Where, as here, “a defendant alleges that he was deprived of

an appeal of right that he otherwise would have pursued by his

counsel’s constitutionally deficient performance in providing advice

about or acting upon such appeal, that alleged violation ‘is reviewed


     1 It appears that McDaniel may have thought that this Court granted
him an out-of-time appeal when it granted his application for discretionary
appeal under OCGA § 5-6-35 (j), but that is not so.
                                    4
under the familiar standard of Strickland v. Washington, 

466 U.S.

668

(104 SCt 2052, 80 LE2d 674) (1984).’” Davis v. State, ___ Ga.

___, ___ (852 SE2d 517, 519) (2020) (quoting Moore v. State, 

308 Ga.

312

, 313 (840 SE2d 353) (2020) (punctuation omitted)).

     With respect to the first component of the Strickland
     standard, the defendant must show that his appeal of
     right was lost as a consequence of his counsel’s deficient
     performance, and the trial court must make a factual
     inquiry into those allegations. With respect to the second
     component of the Strickland standard, the defendant is
     required to demonstrate only that there is a reasonable
     probability that, but for counsel’s deficient performance,
     he would have timely appealed.

Id. (citation and punctuation

omitted).

     To determine whether counsel was constitutionally
     ineffective for failing to file a timely notice of appeal, the
     first question that must be answered is whether counsel
     “consulted” with the defendant about an appeal—that is,
     whether counsel “advis[ed] the defendant about the
     advantages and disadvantages of taking an appeal, and
     ma[de] a reasonable effort to discover the defendant’s
     wishes.”     If counsel adequately consulted with the
     defendant, counsel performed deficiently only if he failed
     “to follow the defendant’s express instructions with
     respect to an appeal.”

Ringold v. State, 

304 Ga. 875

, 879 (823 SE2d 342) (2019)

(quoting Roe v. Flores-Ortega, 

528 U.S. 470

, 478 (120 SCt 1029,

                                   5
145 LE2d 985) (2000)). “However, if counsel did not consult

with the defendant, ‘the court must in turn ask a second, and

subsidiary, question: whether counsel’s failure to consult with

the defendant itself constitute[d] deficient performance.’”

Ringold, 304 Ga. at 879

(quoting 

Flores-Ortega, 528 U.S. at

478

). And

     “[c]ounsel has a constitutionally imposed duty to consult
     with the defendant about an appeal when there is reason
     to think either (1) that a rational defendant would want
     to appeal (for example, because there are nonfrivolous
     grounds for appeal), or (2) that this particular defendant
     reasonably demonstrated to counsel that he was
     interested in appealing.”

Id. (quoting Flores-Ortega, 528

U.S. at 480).

     In making this determination, courts must take into
     account all the information counsel knew or should have
     known. See 

[Strickland,] 466 U.S. at 690

(focusing on the
     totality of the circumstances).             Although not
     determinative, a highly relevant factor in this inquiry will
     be whether the conviction follows a trial or a guilty plea,
     both because a guilty plea reduces the scope of potentially
     appealable issues and because such a plea may indicate
     that the defendant seeks an end to judicial proceedings.
     Even in cases when the defendant pleads guilty, the court
     must consider such factors as whether the defendant
     received the sentence bargained for as part of the plea and
     whether the plea expressly reserved or waived some or all

                                  6
     appeal rights. Only by considering all relevant factors in
     a given case can a court properly determine whether a
     rational defendant would have desired an appeal or that
     the particular defendant sufficiently demonstrated to
     counsel an interest in an appeal.

Davis, ___ Ga. at ___ (852 SE2d at 521) (quoting 

Flores-Ortega, 528

U.S. at 480

).

     At the hearing on McDaniel’s motion for out-of-time appeal,

plea counsel testified that at the time of the plea proceedings,

McDaniel did not indicate to her that he wanted to appeal his plea

and sentence and that he never contacted her about the case from

the time of the plea in November 2014 to the time plea counsel left

the public defender’s office in November 2015. She also testified

that McDaniel, who was 46 years old at the time of the plea, was

concerned about receiving a sentence of life without the possibility

of parole. When asked if “a big part of [the] plea negotiations” was

“to ensure” that McDaniel received a sentence of life with the

possibility of parole, plea counsel testified, “Yeah, I mean . . . , I can’t

remember exactly . . . my line of thought . . . . But from my

experience, I can tell you that with a murder charge, yes, that is

                                     7
always going to be a concern and part of the thought process.” Plea

counsel acknowledged that she discussed with McDaniel paragraph

18 of the plea agreement, which provided that McDaniel understood

“that any motion to withdraw this guilty plea must be filed within

this term of court.”   But she testified that apart from the plea

agreement, she did not advise McDaniel about his right to appeal

from the plea.

     The trial court found that plea counsel did not consult with

McDaniel about his right to appeal following the entry of his plea,

and the State does not dispute that finding on appeal. Nonetheless,

the trial court concluded that plea counsel’s failure to consult was

not constitutionally deficient based on the considerations set forth

in 

Flores-Ortega, 528 U.S. at 480

, and we conclude that the trial

court did not err in reaching that conclusion.

     First, plea counsel testified that McDaniel never expressed to

her an interest in appealing from his guilty plea, either immediately

following the plea or at any time before she left the public defender’s

office about a year later. Second, a “highly relevant factor in this

                                  8
inquiry” is that McDaniel’s convictions followed his plea of guilty.

Id. Moreover, McDaniel “received

the sentence bargained for as part

of the plea.”

Id. Indeed, plea counsel

explained to McDaniel during

the plea proceedings that he could seek to withdraw his plea, but

McDaniel never indicated to plea counsel a desire to do so. Finally,

we note that, at the guilty plea hearing, McDaniel apologized to the

victims’ families, saying that he was “so sorry for what happened,”

and apologized to his mother, telling her that he was sorry that he

had disappointed her. He also added that “[t]he time that I have to

serve I will serve it with my head focused, with my spirit focused.”

Plea counsel and the trial court could have reasonably viewed such

a statement as indicative of a defendant who was pleading guilty to

“seek[] an end to judicial proceedings.”

Id. For these reasons,

we

conclude that the trial court did not err when it determined that plea

counsel would not have had reason to think that a rational

defendant would have wanted to appeal, or that McDaniel

reasonably demonstrated to counsel that he was interested in

appealing. See

id.

9

     Accordingly, because the trial court did not err by concluding

that McDaniel failed to show that his appeal of right was lost as a

result of his counsel’s constitutionally deficient performance, it also

did not abuse its discretion in denying McDaniel’s motion for out-of-

time appeal. See Davis, ___ Ga. at ___ (852 SE2d at 521) (concluding

that the trial court did not abuse its discretion in denying the

defendant’s motion for out-of-time appeal based on ineffective

assistance of counsel because “[n]othing in the record before the trial

court supported a finding that a rational convicted defendant would

have sought an appeal” where, among other things, “the record

show[ed] that [the defendant] got the benefit of the plea bargain

offered by the prosecutor,” “did not express any dissatisfaction with

the plea agreement,” and “reserved no grounds for an appeal”). See

also Fields v. United States, 

577 Fed. Appx. 916

, 919 (11th Cir. 2014)

(per curiam) (cited in Davis, ___ Ga. at ___ (852 SE2d at 521), for the

proposition that “[t]he district judge did not err in finding that plea

counsel had no duty to consult under the circumstances, including

that ‘no rational convicted defendant would have wanted to appeal

                                  10
in these circumstances, because of the guilty plea and Fields having

received the sentence he had sought’”).

     2. McDaniel contends that the trial court erred in denying his

general demurrer. However, to the extent McDaniel claims that we

should review the denial of his general demurrer as part of an appeal

from his convictions, we have no jurisdiction to do so.       Indeed,

because McDaniel “has not been granted an out-of-time appeal,”

there has been “no valid notice of appeal from his convictions,” and

we therefore “have no jurisdiction . . . to review any claims

challenging his convictions.” Clark v. State, 

310 Ga. 489

, 490 n.2

(852 SE2d 522) (2020). Accord Cole v. State, ___ Ga. ___, ___ n.1 (852

SE2d 533, 534 n.1) (2020). Accordingly, we dismiss that portion of

McDaniel’s appeal.

     3. McDaniel also contends that the trial court erred in denying

his motion in arrest of judgment in which he raised the same claims

regarding the alleged defects in his indictment that he raised in his

general demurrer. See State. v. Heath, 

308 Ga. 836

, 840 n.2 (843

SE2d 801) (2020) (explaining that a general demurrer may be

                                 11
“raised in the form of a motion in arrest of judgment”). But we need

not decide the merits of McDaniel’s claims because his motion in

arrest of judgment was untimely.

      “A motion in arrest of judgment must be made during the term

[of court] at which the judgment was obtained.” OCGA § 17-9-61 (b);

see Ballard v. State, 

304 Ga. 67

, 67 (815 SE2d 824) (2018). McDaniel

was convicted in November 2014 during the July term of the

Paulding County Superior Court.              See OCGA § 15-6-3 (31.1)

(providing that the terms of court for the Paulding County Superior

Court begin on the “Second Monday in January and July”). Because

McDaniel filed his motion in arrest of judgment on December 11,

2019, it was not filed timely, and “the trial court was without

jurisdiction to rule on [it].” 

Ballard, 304 Ga. at 67

.

      When a trial court lacks jurisdiction over a motion, it should

dismiss, rather than deny, the motion. 2 See Moore v. State, 

303 Ga.

2

We note that a motion in arrest of judgment is an authorized motion in
a criminal case, just one that “must be made during the term at which the
judgment was obtained.” OCGA § 17-9-61 (b). Therefore, assuming that there
is no factor that would make such a motion a legal nullity, such as being filed

                                      12
743, 747 (814 SE2d 676) (2018). So when a trial court is presented

with a motion that it lacks jurisdiction to decide and denies the

motion solely on the merits, we vacate the trial court’s order and

remand with instructions to dismiss the motion. 

Ballard, 304 Ga.

at 67

-68.

      Here, however, the trial court denied McDaniel’s motion in

arrest of judgment on two grounds: that it was untimely and that it

“substantively lack[ed] any merit.”           And because the trial court

denied the motion on jurisdictional grounds in addition to denying

it on the merits, we do not treat the order as one “in which the trial

court merely decided the merits of a motion over which it lacked

jurisdiction.”    

Moore, 303 Ga. at 747

.            Accordingly, “it is not

necessary for us to vacate the order and remand to the trial court

with instructions to dismiss” the motion, and we simply affirm the




by a defendant being represented by counsel, a motion in arrest of judgment
that is filed after the term at which the judgment was obtained is merely
untimely, not a legal nullity, and does not deprive this Court of jurisdiction of
an appeal from a ruling on such a motion. See Dos Santos v. State, 

307 Ga.
151

, 156 n.5 (834 SE2d 733) (2019); Bonner v. State, 

310 Ga. 426

, 427 (851
SE2d 578) (2020).
                                       13
denial of the motion instead. See

id.

Judgment affirmed in

part and dismissed in part.   All the
Justices concur.




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