                            FIRST DIVISION
                            BARNES, P. J.,
          GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 27, 2020




In the Court of Appeals of Georgia
 A20A0309, A20A0310. JONES v. THE STATE.

      BARNES, Presiding Judge.

      Several years after the trial court denied his timely motion to withdraw his

guilty plea, Quincy M. Jones filed a pro se motion for out-of-time appeal and a

motion to vacate, void, or correct an illegal sentence. The trial court entered an order

denying the two motions and subsequently entered an order denying Jones’s request

for appointment of appellate counsel. In Case No. A20A0309, Jones appeals the trial

court’s order denying both his motion for an out-of-time appeal and his motion to

vacate, void, or correct an illegal sentence, and in Case No. A20A0310, he appeals

the trial court’s order denying his motion for appointment of appellant counsel. For

the reasons discussed below, in Case No. A20A0309, we vacate the trial court’s order

to the extent that the court denied Jones’s motion for an out-of-time appeal and
remand for further proceedings consistent with this opinion. We affirm the trial

court’s order to the extent that the court denied Jones’s motion to vacate, void, or

correct an illegal sentence. In Case No. A20A0310, we affirm the trial court’s order

denying Jones’s request for appointment of appellate counsel.

      The record reflects that on August 21, 2014, Jones entered a negotiated plea of

guilty to false imprisonment and trafficking of persons for sexual servitude. He was

sentenced to a total of 20 years, with the first 13 years in confinement and the

remainder on probation. Jones did not directly appeal from the judgment of

conviction and sentence entered on his guilty plea. On August 29, 2014, Jones, with

the assistance of new counsel,1 filed a timely motion to withdraw his guilty plea.2

Jones contended that his plea had not been freely, knowingly, and voluntarily made

because his plea “was induced by fraud” and that his plea counsel had rendered



      1
        For ease of reference, Jones’s counsel who represented him during the plea
hearing will be referred to as “plea counsel,” and the counsel who represented him on
his motion to withdraw his guilty plea will be referred to as “second counsel.”
      2
        A motion to withdraw a guilty plea must be filed in the same term of court in
which the plea was entered. Terry v. State, 301 Ga. 776, 778 (1) (804 SE2d 71)
(2017). Jones’s guilty plea and his motion to withdraw the plea were both entered in
the August 2014 term of the Clayton County Judicial Circuit. See OCGA § 15-6-3
(10) (terms of court for Clayton County Judicial Circuit commence on the “First
Monday in February, May, August, and November”).

                                         2
ineffective assistance. The trial court denied Jones’s motion to withdraw his guilty

plea on November 7, 2014.

      On August 13, 2018, Jones filed a pro se motion for an out-of-time appeal from

the denial of his motion to withdraw his guilty plea and a pro se motion to vacate,

void, or correct an illegal sentence. In his motion for an out-of-time appeal, Jones

contended that his appeal from the order denying his motion to withdraw his guilty

plea had been frustrated by ineffective assistance of counsel because his second

counsel had failed to file a notice of appeal from that order even though Jones had

repeatedly requested that he do so. In his motion to vacate, void, or correct an illegal

sentence, Jones contended that he had pled guilty as the result of ineffective

assistance rendered by his plea counsel, that the original indictment was defective,

that arrest and search warrants issued in the case were invalid, and that he had been

improperly detained and questioned by law enforcement. On September 17, 2018, the

trial court entered an order denying both motions without conducting an evidentiary

hearing. After Jones filed his notice of appeal from the September 2018 order, Jones

filed a pro se motion for appointment of appellate counsel, which the trial court




                                           3
denied on December 4, 2018.3 Jones then filed a notice of appeal from the trial court’s

December 2018 order.

                                 Case No. A20A0309

      1. Jones contends that the trial court erred in denying his motion for an out-of-

time appeal from the denial of his motion to withdraw his guilty plea. In his motion

for an out-of-time appeal, Jones asserted that he was entitled to such an appeal based

on the ineffective assistance rendered by his second counsel, who failed to file a

timely notice of appeal on his behalf.4

      “It is now well established that a defendant who timely seeks to withdraw a

guilty plea is entitled to the assistance of counsel. A defendant also has both the right



      3
         “Following judgment and entry of notice of appeal, a trial court retains
jurisdiction over certain matters including appointment of counsel on appeal.” Spear
v. State, 271 Ga. App. 845, 845 (1), n. 1 (610 SE2d 642) (2005).
      4
        While Jones has attached numerous documents as exhibits to his appellate
brief, we do not consider such documents. See State v. Ganong, 221 Ga. App. 250,
250 (470 SE2d 794) (1996) (noting that “parties cannot supplement the record merely
by attaching matters to or reciting matters in their briefs”) (citation and punctuation
omitted); Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App.
826, 826 (1) (648 SE2d 156) (2007) (“A brief cannot be used in lieu of the record or
transcript for adding evidence to the record; we must take our evidence from the
record and not from the brief of either party.”) (punctuation and footnote omitted).
See also Court of Appeals Rule 24 (g) (“Do not attach documents or exhibits to
appellate briefs or motions for reconsideration.”).

                                           4
to appeal the denial of his motion to withdraw guilty plea and the right to the effective

assistance of counsel as guaranteed by the Sixth Amendment for that appeal.”

(Citations and punctuation omitted.) Ringold v. State, 304 Ga. 875, 878 (823 SE2d

342) (2019). See Blackwell v. State, 306 Ga. 577, 577 (832 SE2d 352) (2019). When

a defendant is deprived of his right to appeal from the denial of his motion to

withdraw his guilty plea due to ineffective assistance of counsel, the defendant is

entitled to an out-of-time appeal. See Blackwell, 306 Ga. at 577; Ringold, 304 Ga. at

878-882; Cobb v. State, 284 Ga. 74, 74 (663 SE2d 262) (2008); Carter v. Johnson,

278 Ga. 202, 205 (2) (599 SE2d 170) (2004).

      To establish a claim of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), a

defendant must demonstrate that his counsel’s representation fell below an objective

standard of reasonableness and that the deficient performance prejudiced the

defendant. Ringold, 304 Ga. at 879. The Strickland standard applies when a defendant

seeks an out-of-time appeal based on his counsel’s alleged ineffective assistance. Id.

However, our Supreme Court has emphasized that when applying the Strickland

standard in the context of a motion for an out-of-time appeal from the denial of a

motion to withdraw a guilty plea, courts should conduct their inquiry consistent with

                                           5
the principles laid out in Roe v. Flores-Ortega, 528 U.S. 470 (120 SCt 1029, 145

LE2d 985) (2000), and discussed in detail in Ringold, 304 Ga. at 879-882. See

Blackwell, 306 Ga. at 578. See also Garza v. Idaho, __ U. S. __ (139 SCt 738, 203

LE2d 77) (2019) (reaffirming principles enunciated in Flores-Ortega).5

      As to the deficiency prong of the ineffective assistance inquiry, Ringold,

guided by Flores-Ortega, explained that “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.’”

Ringold, 304 Ga. at 879 (quoting Flores-Ortega, 528 U.S. at 478 (II) (A). If there was

adequate consultation, then counsel performed deficiently “only if he failed ‘to follow

the defendant’s express directions with respect to an appeal.’” Id. (quoting same). But

if counsel failed to consult with the defendant, the court must address “‘whether


      5
        We note that in the recent case of Collier v. State, __ Ga. __ (834 SE2d 769)
(2019), our Supreme Court overturned decades of precedent and set out the proper
analysis for addressing a defendant’s motion for an out-of-time appeal from the
judgment of conviction entered on his guilty plea where the defendant alleges that his
appeal was frustrated by ineffective assistance from his plea counsel. Here, however,
Jones sought an out-of-time appeal from the denial of his motion to withdraw his
guilty plea, and thus our Supreme Court’s recent Ringold decision is most directly on
point.

                                          6
counsel’s failure to consult with the defendant itself constitute[d] deficient

performance,’” and, in doing so, the court “‘must take into account all the information

that counsel knew or should have known.’” Id. at 879-880 (quoting Flores-Ortega,

528 U.S. at 478, 480 (II) (A)). And,

      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 appeal rights.


Id. at 880 (quoting Flores-Ortega, 528 U.S. at 480 (II) (A)). See also Dos Santos v.

State, __ Ga. __, n. 6 (834 SE2d 733) (2019) (discussing application of deficiency

prong under Ringold and Flores-Ortega). The trial court abuses its discretion if it

fails to conduct a factual inquiry into whether counsel was responsible for the failure

to pursue a timely appeal. Collier, __ Ga. at __, n. 1.

      As to the prejudice prong of the ineffective assistance inquiry, Ringold

explained that “‘a defendant must demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he would

                                          7
have timely appealed.’” Ringold, 304 Ga. at 881 (quoting Flores-Ortega, 528 U.S.

at 484 (II) (B) (3)). With respect to prejudice, Ringold further emphasized:

      The U. S. Supreme Court has squarely rejected the argument that the
      defendant must show that he would have actually prevailed in a timely
      appeal, as well as “any requirement that the would-be appellant specify
      the points he would raise were his right to appeal reinstated,” as “it is
      unfair to require an indigent, perhaps pro se, defendant to demonstrate
      that his hypothetical appeal might have had merit before any advocate
      has ever reviewed the record in his case in search of potentially
      meritorious    grounds     for   appeal.”   Instead, “when       counsel’s
      constitutionally deficient performance deprives a defendant of an appeal
      that he otherwise would have taken,” the defendant is entitled to an
      appeal because he effectively has been deprived of an appellate
      proceeding altogether.


Id. (quoting Flores-Ortega, 528 U. S. at 484-486 (II) (B) (3)).

      Here, we cannot determine based on the existing record whether Jones’s

counsel was deficient in failing to timely file a notice of appeal, given that the trial

court denied Jones’s motion for an out-of-time appeal without conducting an

evidentiary hearing. Furthermore, our Supreme Court had not yet issued its decision

in Ringold when the trial court entered its order in this case, and thus the trial court

and parties did not have the benefit of that decision to guide them. Accordingly, we


                                           8
vacate the trial court’s September 2018 order to the extent that it denied Jones’s

motion for an out-of-time appeal, and we remand the case for the court to conduct an

evidentiary hearing and determine whether Jones’s second counsel was ineffective

in failing to file a timely notice of appeal from the denial of the motion to withdraw

the guilty plea, consistent with the principles set out in Ringold, 304 Ga. 875, and

Flores-Ortega, 528 U.S. 470. See Blackwell, 306 Ga. at 578; Ringold, 304 Ga. at 882.

      2. Jones also contends that the trial court erred in denying his motion to vacate,

void, or correct an illegal sentence. In his motion, Jones asserted that he pled guilty

as the result of ineffective assistance rendered by his plea counsel, that the

indictment, arrest warrant, and search warrant were invalid, and that he had been

improperly detained and questioned by law enforcement.

      After imposing a sentence of imprisonment, “[t]he sentencing court generally

has jurisdiction to modify or vacate such a sentence only for one year following the

imposition of the sentence. OCGA § 17-10-1 (f). But a sentencing court has

jurisdiction to vacate a void sentence at any time.” (Footnotes and emphasis omitted.)

von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013). Jones filed his

motion to vacate his sentence several years after his sentence was imposed, and thus

“the sentencing court had jurisdiction of his motion only to the extent that it presented

                                           9
a cognizable claim that the sentence was void.” Id. Jones, however, presented no such

claim.

         “A sentence is void if the court imposes punishment that the law does not

allow.” (Citations and punctuation omitted.) Jones v. State, 278 Ga. 669, 670 (604

SE2d 483) (2004). But

         a defendant cannot assert a claim that his conviction was unlawful in an
         untimely motion to vacate his sentence simply by dressing it up as a
         claim that his sentence was void. . . . . Motions to vacate a void sentence
         generally are limited to claims that — even assuming the existence and
         validity of the conviction for which the sentence was imposed — the
         law does not authorize that sentence, most typically because it exceeds
         the most severe punishment for which the applicable penal statute
         provides.


(Citations omitted.) von Thomas, 293 Ga. at 572 (2).

         Here, all of Jones’s assertions about the alleged errors in his case clearly went

to the validity of the judgment of conviction entered on his guilty plea, not the

validity of his sentence. See, e.g., Reed v. State, 296 Ga. App. 366, 367 (1) (674 SE2d

406) (2009) (challenge to underlying plea could not be pursued through motion to

vacate void sentence); Jones v. State, 290 Ga. App. 490, 493 (1) (659 SE2d 875)

(2008) (challenge to indictment could not be pursued through motion to correct void

                                             10
sentence); Jordan v. State, 253 Ga. App. 510, 511 (559 SE2d 528) (2002) (ineffective

assistance claim that counsel failed to properly challenge conviction on a particular

count could not be pursued through motion to correct void sentence). Furthermore,

Georgia law authorized the concurrent sentences that Jones received for false

imprisonment and trafficking of persons for sexual servitude. Specifically, his

sentence of 10 years in prison for false imprisonment fell within the statutory range

of punishment for that offense. See OCGA § 16-5-41 (b) (“A person convicted of the

offense of false imprisonment shall be punished by imprisonment for not less than

one nor more than ten years.”). Likewise, his sentence of 20 years, to serve 13 years

in prison and the remainder on probation, for trafficking of persons for sexual

servitude fell within the statutory range of punishment. See former OCGA § 16-5-46

(f) (1) (Ga. L. 2011, p. 217, § 1) (“[A]ny accused who commits the offense of

trafficking a person for labor or sexual servitude shall be guilty of a felony, and upon

conviction thereof, shall be punished by imprisonment for not less than ten nor more

than 20 years[.]”). Accordingly, Jones failed to present a cognizable claim that his

sentence was void. See von Thomas, 293 Ga. at 572 (2).

      Where, as in the present case, the defendant fails to present a cognizable void-

sentence claim, the trial court does not have jurisdiction of the motion. von Thomas,

                                          11
293 Ga. at 571 (2). “[A]lthough a trial court should ‘dismiss’ rather than ‘deny’ a

motion it lacks jurisdiction to consider, we will vacate only when the court considers

the merits of that motion.” (Citation omitted.) Witherspoon v. State, 304 Ga. 306, 307

(818 SE2d 512) (2018). Here, the trial court denied Jones’s motion to vacate, void,

or correct an illegal sentence without any discussion of that specific motion.

      Absent evidence to the contrary, we presume that trial judges, as public
      officers, follow the law in the exercise of their statutory duties and
      authority. Given this presumption, a trial court’s mere “denial” of a
      motion it lacks jurisdiction to decide without more cannot be assumed
      to be a decision on the merits, and so its “denial” rather than “dismissal”
      of an untimely motion does not require vacatur of that order.


(Citations omitted.) Brooks v. State, 301 Ga. 748, 752 (2) (804 SE2d 1) (2017).

Consequently, we affirm the trial court’s denial of Jones’s motion. See id.

                                Case No. A20A0310

      3. Jones contends that the trial court erred in denying his motion for

appointment of appellate counsel. “However, an indigent defendant is entitled to

representation by counsel only for trial and for the direct appeal from the judgment

of conviction and sentence.” (Citation and punctuation omitted.) Rooney v. State, 287

Ga. 1, 7 (4) (690 SE2d 804) (2010). Hence, Jones was not entitled to the appointment


                                          12
of counsel to appeal the denial of his motion for out-of-time-appeal or the denial of

his motion to vacate, void, or correct an illegal sentence. See id.; Brooks v. State, 301

Ga. 748, 753 (3) (804 SE2d 1) (2017).

      Judgment affirmed in part and vacated in part, and case remanded with

direction in Case No. A20A0309. Judgment affirmed in Case No. A20A0310. Gobeil,

J., and Senior Appellate Judge Herbert E. Phipps concur.




                                           13
