                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    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.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                       June 1, 2020




In the Court of Appeals of Georgia
 A20A0538. HOPPER v. THE STATE.                                               DO-020 C

      DOYLE, Presiding Judge.

      Earl Hopper appeals, pro se, the denial of his motion for an out-of-time appeal.

For the reasons that follow, we reverse.

      The record shows that on September 19, 2014, following a jury trial, Hopper

was convicted of rape, child molestation, enticing a child for indecent purposes, and

furnishing alcohol to a minor, and he was sentenced to life plus an additional 51

years. On October 17, 2014, Hopper’s trial counsel filed a timely motion for new

trial.1 On March 21, 2016, Hopper filed a pro se motion in arrest of judgment, which




      1
        The motion for new trial does not appear in the appellate record, but the trial
court notes in its subsequent order that the motion was filed on October 17, 2014, and
the parties do not dispute this.
he later amended on July 27, 2017.2 On May 4, 2016, the trial court appointed an

attorney for the limited purpose of representing Hopper on his motion for new trial.

On April 12, 2017, Hopper filed a Faretta3 waiver seeking to represent himself. On

May 9, 2017, following a hearing, at which Hopper expressed his desire to represent

himself in post-trial proceedings, the trial court entered an order permitting counsel

to withdraw and scheduling an August 4, 2017 hearing on the motion for new trial.

On August 10, 2017, the trial court issued an order denying the motion in arrest of

judgment and the motion for new trial.4

      On October 23, 2017, Hopper filed a pro-se notice of appeal of the August 10,

2017 order, and he amended the notice on November 28, 2017. On January 24, 2019,




      2
         The motion for arrest of judgment does not appear in the appellate record, but
the trial court notes in a subsequent order that it was filed on March 21, 2016; neither
Hopper nor the State dispute the filing.
      3
          Faretta v. California, 422 U.S. 806 (95 SCt 2525, 45 LE2d 562) (1975).
      4
         The trial court found the motion in arrest of judgment to be untimely, and it
denied the motion for new trial, which “set[] forth only the general grounds,” noting
that it had reviewed the transcript, weighed the evidence, considered the credibility
of the witnesses, and was aware of its discretion as a thirteenth juror.

                                           2
this Court granted the State’s motion to dismiss Hopper’s appeal, concluding that

because it was untimely, the Court lacked jurisdiction.5

       On March 8, 2019, Hopper filed a motion for an out-of-time appeal on the

ground that he did not receive notice of the order denying his motion for new trial

because it was sent to Calhoun State Prison while he was temporarily housed in the

Fulton County Jail, and that the time to file a notice of appeal had already expired by

the time he was returned to prison and received the order.6 On July 31, 2019, Hopper

filed a motion requesting that the trial court consider his motion for an out-of-time

appeal without his physical presence at a hearing.



       5
          See Hopper v. State, Case No. A19A1037 (unpublished opinion). The
dismissal order contained a statement pursuant to Rowland v. State, 264 Ga. 872 (1)
(452 SE2d 756) (1995), advising Hopper that he could petition the trial court for
leave to file an out-of-time appeal, and that he would have 30 days from the date of
the trial court’s order to file a notice of appeal of his conviction or to file a notice of
appeal from the denial of the order.
       6
        Hopper attached several exhibits to his motion: (1) a copy of an envelope
from the trial court’s chambers addressed to Hopper at the Calhoun State Prison;
although it is not possible to read the “received” stamp, there is a handwritten
notation on the envelope stating: “Inmate Received Sept 25, 2017 — Ofc JW” ; (2)
a copy of a second envelope from the trial court’s chambers, postmarked September
13, 2017, and stamped “received” September 18, 2017; it also contains the same
handwritten notation: “Inmate Received Sept 25, 2017 — Ofc JW” ; (3) a copy of a
typed record, presumably from the Fulton County Jail, regarding Hopper stating
“Release Type. Return to State Prison With Pending Charges. Date 09/21/2017.”

                                            3
      On August 26, 2019, the trial court entered an order denying Hopper’s motion

for an out-of-time appeal. In the order, the trial court noted Hopper’s allegation that

he did not receive a copy of the order denying his motion for new trial until after the

time to appeal the order had passed, and it concluded: “Considering these facts, it

appears that the failure to timely file a notice of appeal was not the fault of the

[d]efendant.” The trial court also concluded, however, that Hopper

      chose to represent himself with the understanding that there would be
      limitations on his ability to effectively represent himself, in part,
      because he was in custody. Further, [Hopper] never filed an [a]mended
      [m]otion for [n]ew [t]rial providing a substantive justification for his
      claims of entitlement to a new trial and/or to an appeal. An out-of-time
      appeal is a judicially-created remedy for a frustrated right of appeal and
      is granted if the defendant shows he lost his right to a direct appeal
      through the error of counsel. Where there is evidence sufficient to
      demonstrate that the movant’s conduct caused the loss of his direct
      appeal, then the movant is not entitled to an out-of-time appeal,
      particularly given that a criminal defendant is not constitutionally
      entitled to appellate review. . . .7




      7
       (Citations and punctuation omitted.) The trial court cited Halbert v. Michigan,
545 U. S. 605 (125 SCt 2582, 162 LE2d 552) (2005); Sessions v. State, 293 Ga. 33
(743 SE2d 391) (2013); and Simmons v. State, 276 Ga. 525 (579 SE2d 735) (2003).

                                             4
      In this pro se appeal, Hopper contends that the trial court erred by denying his

motion for an out-of-time appeal because the court found that his failure to timely file

a notice of appeal was not his fault. In response, the State argues that Hopper failed

to prove that he was not at fault for the failure to timely file the notice of appeal,

noting that although “[u]pon information and belief, Hopper was in fact housed in the

Fulton County Jail during the entirety of the [30-day] period following the issuance

of the order,” there is no evidence in the record to show where the order was sent, and

that Hopper forfeited his opportunity to present evidence by waiving his presence at

the hearing.

               We review a trial court’s denial of a motion to file an out-of-time
      appeal for an abuse of discretion. A defendant seeking an out-of-time
      appeal must allege and prove an excuse of constitutional magnitude for
      failing to file a timely direct appeal. . . . In order to obtain an out-of-time
      appeal, a defendant need not show that [he] actually would have
      prevailed in a timely appeal. . . .8




      8
       (Citation and punctuation omitted.) Jones v. State, ___ Ga. ___, ___ (Case
No. S20A0372, decided Mar. 13, 2020).

                                             5
      Pursuant to OCGA § 15-6-21 (c), a trial court is required to notify the attorney

of a losing party or a pro-se criminal defendant of its judgment.9

      A lack of notice could furnish a basis for the grant of an out-of-time
      appeal in that the defendant was deprived of his right to appeal, which
      is of constitutional dimensions. The issue is whether defendant received
      notice and delayed taking action, in which case he has forfeited his right
      to appeal, or whether there was no timely notice, in which case either the
      judgment should be set aside and a new judgment entered from which
      a timely appeal might be taken or an out-of-time appeal should be
      considered. . . .


      If [a defendant] actually received notice of [an] order and delayed taking
      action, he has forfeited his right to appeal. If, however, he did not
      receive timely notice, he was entitled to request an out-of-time appeal.
      The judicial inquiry on a motion for an out-of-time appeal is whether the
      appellant was responsible for the failure to file a timely direct appeal.
      An out-of-time appeal is not authorized if the delay was attributable to
      the appellant’s conduct. But, if the defendant was not responsible for his
      failure to file a timely notice of appeal, the trial court should have
      granted his motion for an out-of-time appeal.10




      9
       See Shouse v. State, 189 Ga. App. 531 (376 SE2d 911) (1988); see also
Wright v. Wright, 300 Ga. 114, 116 (2) (793 SE2d 96) (2016).
      10
        (Citation and punctuation omitted; emphasis supplied.) Gonzalez v. State,
347 Ga. App. 330, 333-334 (819 SE2d 487) (2018).

                                          6
      Here, notwithstanding Hopper’s waiver of his presence at the hearing on his

motion for an out-of-time appeal, the trial court explicitly found that Hopper did not

receive a copy of the order until the date to timely appeal had passed and that his

failure to file a timely notice of appeal was not his fault because he lacked notice.

Under these circumstances — Hopper was being temporarily held at the Fulton

County Jail and had not yet been returned by prison officials to Calhoun State Prison,

where the trial court apparently sent the order denying his motion for new trial, until

more than 30 days after the trial court issued the order — the trial court erred by

concluding that Hopper’s election to proceed pro se effectively waived his right to

receive timely notice of the order or to pursue an out-of-time appeal. Therefore,

because Hooper was not responsible for his failure to file a timely notice of appeal,

the trial court erred by denying his motion for an out-of-time appeal.11

      Judgment reversed. McFadden, C. J., and Hodges, J., concur.




      11
           See id. at 334.

                                          7
