                                 SECOND DIVISION
                                   MILLER, P. J.,
                              RICKMAN and REESE, JJ.

                      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


                                                                    November 25, 2019




In the Court of Appeals of Georgia
 A19A2329. WARNER v. THE STATE.

      MILLER, Presiding Judge.

      Proceeding pro se, Brandon Warner appeals from the trial court’s denial of his

motion for out-of-time appeal. Warner argues that the trial court erred in denying his

motion on the singular basis that he entered a guilty plea to the underlying offenses.1

The trial court erred in its decision, and we vacate the trial court’s order and remand

this case for further consideration on whether Warner was entitled to an out-of-time

appeal.

      A Fulton County grand jury indicted Warner for one count of armed robbery

(OCGA § 16-8-41), one count of aggravated assault with a deadly weapon (OCGA

§ 16-5-21), one count of possession of a firearm during the commission of a felony

      1
          The State has not filed an appellee brief in this case.
(OCGA § 16-11-106), and one count of possession of a firearm by a first offender

probationer (OCGA § 16-11-131). In March 2013, while represented by counsel,

Warner pleaded guilty to all four counts of the indictment. Warner received a

seventeen-year sentence, with the first 12 years to be served in confinement and the

remainder of the sentence to be served on probation. In March 2019, Warner filed a

“motion to allow filing of out-of-time appeal.” In his motion and supporting brief,

Warner argued, inter alia, that his trial attorney did not fully inform him of his options

for post-conviction relief, including withdrawing his guilty plea or filing an appeal,

and that trial counsel did not file a notice of appeal or inform him of his right to a free

transcript. Warner therefore claimed that the failure to file a timely notice of appeal

was due to no fault of his own, and that his trial counsel had rendered ineffective

assistance. Warner also requested that the trial court hold a hearing on the motion.

       The trial court denied Warner’s motion in May 2019. Citing the Supreme Court

of Georgia’s decision in Shuman v. State, 302 Ga. 221, 221-222 (2) (805 SE2d 824)

(2017), the trial court explained that out-of-time appeals

       are designed to address the constitutional concerns that arise when a
       criminal defendant is denied his first appeal of right because the counsel
       to which he was constitutionally entitled to assist him in that appeal was



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       professionally deficient in not advising him to file a timely appeal and
       that deficiency caused prejudice.


The trial court then ruled that this legal prerequisite for granting an out-of-time appeal

did not apply here because Warner had entered a guilty plea. Warner then appealed

from the trial court’s decision.

       In his sole enumeration of error, Warner argues that the trial court erred in

denying his motion to allow the filing of an out-of-time appeal on the singular basis

that he had entered a guilty plea. Warner is correct.

       Defendants who plead guilty to criminal charges in Georgia courts have
       the right to timely pursue post-conviction remedies, including a motion
       to withdraw the guilty plea and an appeal. With respect to at least those
       two potential remedies, defendants have a Sixth Amendment right to the
       effective assistance of counsel to advise them about the potential remedy
       and to pursue the remedy if appropriate.


Dos Santos v. State, __ Ga. __ (5) (__ SE2d__), 2019 WL 5301702 at *4 (Case No.

S19A1352, decided October 21, 2019). Thus, “[i]f a defendant’s right to appeal from

a guilty plea (directly or after filing a motion to withdraw the plea) is frustrated by the

constitutionally ineffective assistance of plea counsel in advising the defendant about

or pursuing those post-conviction remedies, the defendant may seek an out-of-time


                                            3
appeal in the trial court. . . .” Id. at *6. And “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.” (Citations omitted.) Collier v. State, __ Ga. __ (1)

(__ SE2d__), 2019 WL 5301808, at *3 (Case No. S19A0658, decided Oct. 21,

2019).2

       Here, Warner requested the trial court to grant his motion for out-of-time

appeal partly because his attorney was ineffective in failing to inform him of his post-

conviction options for relief, including filing an appeal from his guilty plea.

Therefore, the trial court erred in denying Warner’s motion solely on the basis that

he had pleaded guilty.

       Additionally, it appears that the trial court denied Warner’s motion without an

evidentiary hearing. The trial court’s order does not reflect that a hearing was held on


       2
         Further, as our Supreme Court recently ruled, the defendant need not “show
that he would have actually prevailed in a timely appeal” or “specify the points he
would raise were his right to appeal reinstated.” (Citations omitted.) Collier, supra,
at *2. We also note that our Supreme Court overruled a line of cases which held that
a criminal defendant’s right to appeal directly from a judgment entered on a guilty
plea is limited to those cases in which the issue on appeal can be resolved by facts
appearing in the record. Id. at *3.


                                            4
Warner’s motion, there is no transcript of a hearing, and the record does not evince

that a hearing was ever scheduled. Because the trial court “denied [Warner’s] motion

for an out-of-time appeal without holding an evidentiary hearing, we cannot

determine from the appellate record whether [Warner’s] failure to timely pursue an

appeal was actually the result of his counsel’s deficient performance.” Collier, supra,

at *8. Thus, we vacate the trial court’s order denying Warner’s motion for out-of-time

appeal, remand this case for an evidentiary hearing on Warner’s motion, and direct

the trial court to reconsider Warner’s motion in a manner consistent with the Supreme

Court of Georgia’s decision in Collier, supra.

      Judgment vacated and case remanded with direction. Rickman and Reese, JJ.,

concur.




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