Cook v. State

FINAL COPY


                 S21A1270. COOK v. THE STATE.


     WARREN, Justice.

     When a convicted criminal defendant is unconstitutionally

deprived of an appeal of right, which typically occurs because her

counsel provided ineffective assistance in failing to file a timely

appeal, she is entitled to an untimely or “out-of-time” appeal. In this

case, we examine the difficult question of whether this Court should

overrule our precedent allowing a criminal defendant who alleges

that she was unconstitutionally deprived of her appeal as of right to

file a motion for out-of-time appeal in the trial court, as opposed to

seeking a writ of habeas corpus as an exclusive remedy.          After

explaining the underpinnings of our precedent and engaging in an

exhaustive stare decisis analysis, we conclude that the trial court

out-of-time appeal procedure is not a legally cognizable vehicle for a

convicted defendant to seek relief for alleged constitutional
violations.

                                  ***

     In the Habeas Corpus Act of 1967, now codified as OCGA § 9-

14-40 et seq., the General Assembly created a post-conviction

procedure     for   defendants   to       raise   that—and   any   other—

constitutional claim. Defendants in Georgia began doing so, and in

1974 this Court held in Neal v. State, 

 (

)

(1974), that a defendant could not seek an out-of-time appeal from

his conviction by motion in the trial court, explaining that he must

file a petition for a writ of habeas corpus to seek relief for the “denial

of the right of appeal or of the effective assistance of counsel on

appeal” and affirming the trial court’s order dismissing the

defendant’s motion. 

.

     Nevertheless, the following year, without mention of Neal or

the Habeas Corpus Act, this Court began to review appeals of trial

court orders denying motions for out-of-time appeals on the merits

and appeals following orders by trial courts granting out-of-time

appeals. See King v. State, 

 (

)

                                      2
(1975); Furgerson v. State, 

 (

)

(1975). Those cases did not constitute precedents on the proper way

to seek an out-of-time appeal, but two decades later, in Rowland v.

State, 

 (

) (1995), the Court for the first time

held—without citing any applicable legal authority and without

acknowledging or overruling the contrary holding in Neal—that a

convicted defendant could seek an out-of-time appeal either in the

trial court or in habeas corpus. See 

. Trial courts thus

continued to entertain motions for out-of-time appeal, and appellate

courts continued to decide appeals following the rulings on such

motions for many more years.

     This Court did not examine how the trial court out-of-time

appeal procedure had been created and evolved; the inconsistencies

that had developed between that procedure and other areas of

established Georgia law; or how the procedure had become an

unwitting breeding ground for legal errors made by both appellate

and trial courts until we decided Collier v. State, 

 (

) (2019), in 2019. Collier raised the profile of the trial court

                                   3
out-of-time appeal process, and given that the only way rules have

been established for this judicially created procedure is by judges

making them on a case-by-case basis, we have since seen additional

cases that have called upon this Court to create the rules and

parameters of the trial court out-of-time appeal procedure.

     In Collier, and in a case that soon followed, Schoicket v. State,

 (

) (2021), this Court determined that our

precedent endorsing the trial court out-of-time appeal procedure as

an alternative to habeas corpus had no valid legal foundation. See

Collier, 

; 

 (Peterson, J.,

concurring specially); Schoicket, 

. The question that

follows is whether to maintain that precedent as a matter of stare

decisis. We asked the parties in this case, as well as amicus curiae

for major participants in the criminal justice system, to address that

question. Based on their input and our extensive consideration of

the issue, we conclude that stare decisis considerations do not weigh

against overruling our precedent that created the trial court out-of-

time appeal procedure.

                                  4
     This Court has consistently held that the most important stare

decisis factor is the soundness of the reasoning of the precedent at

issue, and everyone involved in this case agrees that the reasoning

supporting our precedent allowing motions for out-of-time appeal in

trial courts—to the extent there has been any reasoning at all—is

wholly unsound. There also is agreement that the precedent is not

ancient and that it does not implicate traditional reliance interests.

     With respect to the fourth stare decisis factor that this Court

typically considers—workability—we conclude that our precedent

creating the trial court out-of-time appeal procedure has a

fundamental and insurmountable workability problem, because it

will perpetually require this Court to fill in the details of the

procedure we created. Judicial administration of habeas corpus,

which everyone agrees is an appropriate procedure for seeking an

out-of-time appeal when a convicted criminal defendant is

unconstitutionally deprived of an appeal of right, does not require

judges to make up the rules that regulate that process because the

General Assembly has established those rules by statute. But as

                                  5
Collier and Schoicket demonstrate, when it comes to the trial court

out-of-time appeal procedural vehicle this Court invented, we are

called upon to make up the rules that govern that procedure. And

each time we do, we are required to step out of our proper judicial

role and assume the role of lawmakers—which is the work of the

General Assembly.

     The dissent has no real answer to this problem.           It also

undervalues the unsoundness of our precedent and overstates the

ways in which the procedure we created may work better than the

habeas procedure that is legally proper. In the end, the dissent

seeks to overcome our customary stare decisis analysis with a focus

on the “entrenchment” of our precedent—a concept we have

considered before in stare decisis analyses, but never to outweigh all

other stare decisis factors and perpetuate an unworkable and wholly

unsound precedent, as the dissent proposes here.

     For these reasons, which are explained more fully below, we

conclude that principles of stare decisis do not require us to maintain

our unsound precedent creating or endorsing the trial court out-of-

                                  6
time appeal procedure, and we therefore overrule Rowland and its

handful of progeny. We also disapprove King, Furgerson, and other

decisions to the extent that they allowed out-of-time appeal claims

to be litigated in trial courts without addressing the propriety of that

procedure. Applying our holding to this case, we vacate the trial

court’s order denying Cadedra Lynn Cook’s motion for an out-of-time

appeal, and we remand the case to the trial court with direction that

the motion be dismissed.

      1. Procedural Posture of Cook’s Appeal

      In November 2013, Cook entered a negotiated plea of guilty to

charges of felony murder and armed robbery, based on which the

trial court entered a judgment of conviction and sentenced her to life

in prison with the possibility of parole for felony murder and a

concurrent 20-year term in prison for armed robbery.1 She did not



      1 Cook’s co-indictee, Eddie Clark, pleaded guilty to felony murder, armed

robbery, and obstruction of a law enforcement officer in February 2014. In
2020, we vacated a trial court order denying his motion for out-of-time appeal
and remanded the case for an evidentiary hearing to “determine whether plea
counsel’s ineffective assistance was responsible for Clark’s failure to pursue a
timely appeal.” Clark v. State, 

 (

) (2020) (citation

                                       7
file a timely appeal, but more than six years later, she filed a motion

for out-of-time appeal in the trial court, contending that she was

deprived of her right to appeal because of her plea counsel’s

ineffective assistance.2 After a hearing, the trial court denied Cook’s

motion for out-of-time appeal on the merits, and she timely appealed

that decision. Cook and the State filed appellate briefs making

arguments related to the merits of Cook’s motion. But in light of

this Court’s recent examinations of the propriety of motions for out-

of-time appeals in trial courts and related issues in Collier, Kelly v.

State, 

 (

) (2021), and Schoicket, we

requested and received supplemental briefing on the following two

questions:3


and punctuation omitted).

     2 As part of her motion for out-of-time appeal, Cook also sought an out-

of-time motion to withdraw her guilty plea. But we recently held that “a
granted motion for out-of-time appeal does not confer a right to file an
otherwise-untimely motion to withdraw a guilty plea.” Schoicket, 

.

     3 We appreciate the supplemental briefs filed on behalf of the parties by

appellant’s counsel, the District Attorney, and the Attorney General. We are
also grateful for the thoughtful briefs filed by amici curiae the Georgia

                                     8
          Should this Court reconsider whether a criminal
     defendant who alleges that she was deprived of her right
     to appeal because of her counsel’s alleged ineffective
     assistance under Strickland v. Washington, 

     (

, 80 LE2d 674) (1984), be permitted to seek
     a remedy for that alleged constitutional violation by filing
     a motion for out-of-time appeal in the trial court, as
     opposed to filing, as her exclusive remedy, a petition for
     writ of habeas corpus?
          How do considerations of stare decisis apply in this
     analysis?

     2. Legal Background

     (a) The Judicial Creation and Propagation of the Motion for
Out-of-Time Appeal in Georgia Trial Courts

     In 1965, the United States Supreme Court granted certiorari

to consider “whether the Fourteenth Amendment [to the United

States Constitution] requires that the States afford state prisoners

some adequate corrective process for the hearing and determination

of claims of violation of federal constitutional guarantees.” Case v.

Nebraska, 

 (

, 14 LE2d 422) (1965). But

because the Nebraska legislature enacted, during the pendency of

that case, a statutory post-conviction procedure that “provide[d] for


Association of Criminal Defense Lawyers (“GACDL”) and the Prosecuting
Attorneys’ Council of Georgia (“PAC”).
                                  9
a hearing of petitions . . . alleging denial of federal constitutional

rights,” the Supreme Court did not address the merits of the

question presented in Case and instead vacated the judgment below.

 However, in the wake of two concurring opinions in Case that

expressed approval of states providing statutory post-conviction

procedures and hope that such procedures would be broadly adopted

in other states, see 

 (Clark, J., concurring), 340-347

(Brennan, J., concurring), many states enacted statutory post-

conviction procedures, including but not limited to state habeas

corpus procedures.     See 7 Wayne R. LaFave et al., Criminal

Procedure § 28.11 (a) (4th ed., Nov. 2021 Update) (the states

“responded en masse to the urgings of” the concurring Justices “and

others, and today ‘in each of the 50 states, the principal

postconviction remedy may be used, at a minimum, to raise claims

that the conviction is void for lack of jurisdiction or was obtained in

violation of a constitutional right.’”) (quoting 1 Donald E. Wilkes,

Federal and State Postconviction Remedies and Relief Handbook

with Forms 7 (2014-2015 ed.)).

                                  10
     Among those states was Georgia, which in 1967 enacted the

Habeas Corpus Act. See Ga. L. 1967, p. 835 (codified as amended at

OCGA § 9-14-40 et seq.). The Act, which is codified as Article 2 of

Chapter 14 of Title 9, applies to convicted defendants and says that

“this article provides the exclusive procedure for seeking a writ of

habeas corpus for persons whose liberty is being restrained by virtue

of a sentence imposed against them by a state court of record.”

OCGA § 9-14-41. OCGA § 9-14-42 (a) further specifies that any such

person “who asserts that in the proceedings which resulted in his

conviction there was a substantial denial of his rights under the

Constitution of the United States or of this state may institute a

proceeding under this article.”

     About two years after the enactment of Georgia’s Habeas

Corpus Act, the United States Supreme Court held, in a federal case

in which counsel failed to file a notice of appeal as requested by the

defendant and thereby deprived the defendant of an appeal as of

right, that the defendant “should be resentenced so that he may

perfect an appeal in the manner prescribed by the applicable rules.”

                                  11
Rodriquez v. United States, 

 (

, 23 LE2d

340) (1969). See also Douglas v. California, 

(

, 9 LE2d 811) (1963) (indigent defendants have a

constitutional right to appointed counsel for their first appeal as of

right from a criminal conviction); Evitts v. Lucey, 

(

, 83 LE2d 821) (1985) (“A first appeal as of right . . . is

not adjudicated in accord with due process of law if the appellant

does not have the effective assistance of an attorney.”).

     In the years that followed, this Court began to hold that

convicted defendants who were unconstitutionally deprived of their

right to appeal as a result of a denial of counsel or as a result of trial

counsel’s constitutionally ineffective assistance could obtain an “out-

of-time appeal” as relief in Georgia habeas corpus proceedings. See

Roberts v. Caldwell, 

 (

) (1973)

(reversing the denial of habeas relief because the petitioner “was

denied appellate counsel on his first appeal,” and remanding the

case “with direction to the habeas corpus court to enter an order

providing for the appointment of counsel to determine if there is any

                                   12
justifiable ground for an appeal from the original convictions, and if

such determination is in the affirmative, then an appeal may be filed

and prosecuted with benefit of counsel even at this late date”)

(emphasis supplied); McAuliffe v. Rutledge, 

 (

) (1974) (reversing the judgment of the habeas court

because the petitioner “was indeed denied effective assistance of

counsel in attempting to appeal his conviction,” and directing that

the petitioner “be allowed, if he so desires, to file an out of time appeal

to the proper appellate court within 30 days from the date the

remittitur from this court is filed in the trial court”) (emphasis

supplied). See also Collier, 

 (observing that a “few

years after Rodriquez, the ‘out-of-time appeal’ remedy began to

appear in Georgia’s habeas corpus jurisprudence”); 

 (“A

request for an out-of-time appeal based on a deprivation of

constitutional rights clearly may be brought in a petition for a writ

of habeas corpus.”).4


      4 There is no dispute that an out-of-time appeal may still be sought as a

remedy in a habeas corpus proceeding. See, e.g., Hall v. Jackson, 

,

                                      13
      Accordingly, when this Court first encountered a motion for

out-of-time appeal filed in a trial court (rather than in a habeas

court) shortly after the Habeas Corpus Act’s enactment, we deemed

the motion invalid.         In Neal, we affirmed a trial court’s order

dismissing an inmate’s motion seeking an untimely appeal from his

conviction on a guilty plea entered seven years earlier, explaining

that a petition for a writ of habeas corpus was “an adequate post-

conviction remedy” for “denial of the right of appeal or of the

effective assistance of counsel on appeal.” 

 (citing

McAuliffe, 

). In so doing, we specifically held that the

motion “should have been filed [as a habeas petition] in the superior

court wherein the petitioner [was] being detained, not in the




724 (

) (2021) (the appropriate remedy when a habeas court
determines that appellate counsel provided ineffective assistance due to a
conflict of interest “is to grant [the petitioner an] out-of-time appeal, which will
allow him to start the post-conviction process anew with the assistance of
conflict-free counsel”); Trauth v. State, 

 (

) (2014)
(“[W]here, as here, a pro se defendant has been improperly denied counsel for
his first appeal, he is entitled to [habeas] relief in the form of having counsel
appointed ‘to determine if there is any justifiable ground for an appeal from
the original convictions, and if such determination is in the affirmative, file
and prosecute a new direct appeal with the benefit of counsel.’”) (quoting
Roberts, 

; punctuation omitted).
                                        14
convicting court.” Id. at 96-97.

     Nevertheless, a year after Neal, without acknowledging our

holding in that case or the existence of the Habeas Corpus Act, this

Court began to review appeals from trial court denials of motions for

out-of-time appeal, as well as appeals from convictions pursuant to

the grants of such motions by trial courts, without addressing

whether the out-of-time appeal procedure in the trial court was

authorized in the first place.     In King, 

, we

considered on the merits an appeal from the trial court’s denial of a

motion for out-of-time appeal, and in Furgerson, 

,

we considered on the merits an appeal that followed the trial court’s

grant of a motion for out-of-time appeal. Notably, neither King nor

Furgerson constituted precedent on the trial court out-of-time appeal

procedure, because in those cases we merely considered the merits

of an appeal following a trial court ruling on a motion for out-of-time

appeal; we did not address whether the trial court procedure was

valid. See Collier, 

 (“Notwithstanding [Neal], this

Court began reviewing trial court rulings on out-of-time appeal

                                   15
motions without any discussion of the propriety of the out-of-time

appeal process in the trial court.”) (citing King and Furgerson). See

also Seals v. State, 

 (

) (2021) (“[I]n

none of those cases was there any discussion of jurisdiction at all,

much less analysis and a holding on the issue. Decisions of this

Court and of the Court of Appeals ‘do not stand for points that were

neither raised by the parties nor actually decided in the resulting

opinion,’ and ‘questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.’”)

(citation omitted).5

      Then, two decades later in Rowland, this Court for the first



      5 None of our early cases allowing the out-of-time appeal procedure in

trial courts cited any authority, with one exception: in 1978, this Court noted
that the out-of-time appeal procedure in Georgia “has no codical basis” but
“appears to have had its genesis in Byrd v. Smith, 407 F2d 363 (5th Cir. 1969).”
Lay v. State, 

, 225 n.1 (

) (1978). See also Collier, 

 n.9 (quoting Lay). But Byrd was a federal habeas decision requiring
that Georgia “either allow an appeal at this time or permit an out-of-time
appeal by whatever procedure is necessary.” 407 F2d at 366. Byrd did not
purport to require Georgia to establish a state procedure other than habeas
corpus for considering alleged unconstitutional deprivations of the right to
appeal.
                                      16
time held squarely that an out-of-time appeal could properly be

obtained in the trial court as well as in habeas corpus. Specifically,

we concluded that the out-of-time appeal “granted where [counsel’s]

deficiency involves not the trial but the denial of the right to appeal

. . . serves as a remedy” not only “for a habeas corpus petitioner who

suffered a constitutional deprivation,” but also for “the criminal

defendant who has shown ‘good and sufficient reason’ to a trial

court.”   Rowland, 

 (citations and punctuation

omitted). We reached that conclusion without citing any applicable

legal authority and without acknowledging or overruling our

contrary holding in Neal. See 

. However unreasoned

it was, Rowland, rather than Neal, became the governing precedent

on the trial court out-of-time appeal procedure in Georgia courts.

See White v. State, 

, 122 n.10 (

) (2019)

(explaining that when discord exists between older and newer

precedents of a jurisdiction’s highest court, the more recent decision

controls). See also Schoicket, 

 n.5 (citing White).

     In sum: even though the General Assembly statutorily

                                  17
established habeas corpus as the exclusive procedure for vindicating

a convicted defendant’s constitutional rights, including the

deprivation of the right to appeal, and established the contours of

the procedure to seek such relief, this Court allowed and then

expressly endorsed a procedure parallel to, but distinct from, habeas

corpus for convicted defendants to seek vindication of alleged

constitutional violations that frustrated their right to appeal. And

allowing convicted defendants to do so in turn allowed them to

circumvent the requirements and restrictions imposed by the

Habeas Corpus Act.

      Our error was significant. By judicially creating this trial court

out-of-time    appeal     procedure—a       procedure      that   is   neither

authorized by our common law6 nor established by statute—this


      6 At common law, courts could only modify their judgments in the same

term of court, which in Georgia ranges from two to eight months long. See
Gray v. State, 

 (

) (2020) (“Georgia courts have long
applied the common-law rule that the trial court has the inherent authority to
modify a judgment within the term of court and that a motion made during the
term serves to extend the power to modify.”) (citation and punctuation
omitted); OCGA § 15-6-3 (setting out the “terms of court for the superior courts
for each of the judicial circuits”). We are not aware of any procedure at common
law by which a trial court may allow a party to challenge a conviction outside
the term of court.
                                      18
Court acted not as a body of judges, but as a body of lawmakers. Cf.

Duke v. State, 

 (

) (2019)

(unanimously overruling precedent that “created a judicial

exception   to   the   statutory   requirements   for   bringing   an

interlocutory appeal” and recognizing that the “scheme for appellate

interlocutory review is legislative in nature”) (citation and

punctuation omitted). In so doing, we usurped the power of the

Legislative Branch, which implicates separation-of-powers concerns

under the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec.

II, Par. III (“The legislative, judicial, and executive powers shall

forever remain separate and distinct; and no person discharging the

duties of one shall at the same time exercise the functions of either

of the others . . . .”). See also Duke, 

 (“We reiterate

this core separation of powers principle today. . . . [T]he General

Assembly is free to change or abolish th[e] requirement [that a trial

court must issue a timely certificate of immediate review before an

interlocutory appeal may be pursued]. But this Court lacks that

authority, and we should never have claimed it.”). Suffice it to say

                                   19
that we did not identify that concern at the time we decided

Rowland or for many years thereafter. Instead, we continued for

more than two decades to decide cases following trial court rulings

on motions for out-of-time appeals—and apparently did so without

consideration of the statutory and decisional authorities Rowland

ignored in reaching its holding.

     (b) Two Decades of Misinterpretation and More Recent Course-
Correction With Respect to the Availability of Out-of-Time Appeals
After Guilty Pleas

     As it turns out, our unsupported and seemingly unthinking

creation of the trial court out-of-time procedural vehicle was

matched by our long-standing erroneous application of the

substantive standard for granting an out-of-time appeal following a

conviction by guilty plea. Indeed, over the course of many years,

“this Court and the Court of Appeals [ ] in hundreds of cases”

erroneously “required defendants whose convictions came by guilty

pleas to show that they could actually prevail in an appeal before

allowing them that appeal out-of-time.” Ringold v. State, 

 (

) (2019) (Nahmias, P. J., concurring). That

                                   20
requirement was flatly inconsistent with the United States Supreme

Court’s holding in Roe v. Flores-Ortega, 

 (

,

145 LE2d 985) (2000)—controlling precedent on Sixth Amendment

ineffective-assistance-of-counsel claims involving the failure to file a

timely appeal from a criminal conviction, whether that conviction

was based on a guilty plea or a guilty verdict after a trial.7 See

Ringold, 

 (Nahmias, P. J., concurring). As a result, in

2019 we overruled two decades’ worth of cases from this Court and

the Court of Appeals involving analysis of out-of-time appeals that

conflicted with Flores-Ortega. See Collier, 

.8


      7 In Flores-Ortega, which involved a lawyer’s failure to file a notice of

appeal following the entry of his client’s guilty plea, the Supreme Court held,
among other things, “that when counsel’s constitutionally deficient
performance deprives a defendant of an appeal that he otherwise would have
taken, the defendant has made out a successful ineffective assistance of
counsel claim entitling him to an appeal” and that “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.” 

 (emphasis in original). See also Garza v. Idaho, — U.S. — (

, 203 LE2d 77) (2019) (explaining and reaffirming Flores-Ortega).
Notably, we had recognized Flores-Ortega and properly applied its holding to
the analysis of requests for out-of-time appeals from convictions after trials.
See White v. State, 

 (

) (2004). See also Collier,

 (citing White).
      8 Among the cases Collier overruled was Morrow v. State, 

 (463



                                      21
      A review of those overruled cases—40 from this Court and 46

from the Court of Appeals—reveals that, for the 20-plus years that

Georgia’s appellate courts endorsed an incorrect ineffective-

assistance-of-counsel standard for the analysis of motions for out-of-

time appeals from guilty-plea convictions, trial courts routinely

denied such motions without a hearing, and appellate courts

affirmed those denials in short order. Rejecting those motions was,

in most cases, an unsurprising result, given that our courts were

applying a standard that required a defendant seeking an out-of-

time appeal from her guilty-plea conviction—a defendant who

almost always was not represented by counsel—not only to allege

and prove that her right to appeal was frustrated by her plea

counsel’s unconstitutionally deficient performance, but also to

prove, based on the limited record, that her appeal would have

succeeded.     Since Ringold and Collier, we have observed an




SE2d 472) (1995), and its progeny—which held that “an appeal will lie from a
judgment entered on a guilty plea only if the issue on appeal can be resolved
by facts appearing in the record,” 

 at 3—which was also inconsistent with
Flores-Ortega. See Collier, 

.
                                     22
increasing number of appeals docketed in this Court that stem from

the denial of motions for out-of-time appeal, and many of those cases

involve motions for out-of-time appeal—like the one in this case—

that were filed in the trial court many years after the judgment was

entered on the defendant’s guilty plea. Indeed, we have identified

at least five such appeals to this Court in the past year alone. See,

e.g., Boone v. State, 

 (

 (2022); Mobuary

v. State, 

 (

) (2021); Harvey v. State,

, 263 n.1 (

) (2021); Terry-Hall v. State, 

 (

) (2021); McDaniel v. State, 

 (

) (2021). See also Collier, 

 & n.14

(recognizing that “some of our out-of-time appeal cases have

involved long delays after conviction” and citing two 2011 cases with

delays of 15 and 26 years).

     (c) Habeas Corpus Reaffirmed as the “Comprehensive Statutory
Means” For Vindicating Alleged Constitutional Violations After a
Final Conviction

     In 2019—the same year we decided Collier—this Court also

reaffirmed that “‘habeas corpus is the exclusive post-appeal

                                 23
procedure available to a criminal defendant who asserts the denial

of a constitutional right.’” Mitchum v. State, 

 (

) (2019) (quoting State v. Smith, 

 (

) (2002); emphasis supplied in Mitchum).        In explaining our

holding in Mitchum—that an extraordinary motion for new trial

“was not the appropriate vehicle” for a convicted defendant to pursue

alleged constitutional deprivations because “habeas corpus provided

an adequate remedy”—we explained the foundational principle that

“when the General Assembly in 1967 expanded the scope of matters

that could be addressed through habeas corpus to include

constitutional deprivation claims, an adequate statutory remedy

was created to address those constitutional claims.” Id. at 884. We

concluded that the Habeas Corpus Act amounted to the “creation of

a comprehensive statutory means through which constitutional (and

only constitutional) claims could be pursued.”       Id.   See also

Valenzuela v. Newsome, 

 (

) (1985)

(explaining that OCGA § 9-14-42 (a) also allowed claims for alleged

violations of state statutes until a 1982 amendment to the Habeas

                                 24
Corpus Act). Mitchum’s holding was consistent with prior cases in

which this Court rejected attempts to use post-conviction procedures

other than habeas corpus as a vehicle to vindicate a convicted

defendant’s constitutional rights. See, e.g., Daker v. Ray, 

 (

) (2002) (rejecting the writ of mandamus as

a means to challenge a conviction and sentence as void and

identifying habeas corpus as the exclusive remedy under the

circumstances); Davis v. State, 

 (

) (2002)

(rejecting untimely motion to withdraw guilty plea and noting that

the only means available to challenge the convicted defendant’s

guilty plea was habeas corpus). Nevertheless, the motion for out-of-

time appeal procedure remained available for convicted defendants

to seek vindication of one (but only one) of their constitutional

rights—the right to an appeal as of right—in the court of their

conviction, as opposed to only in a habeas court after filing a habeas

petition.

    (d) Recent Skepticism About the Trial Court Out-of-Time
Appeal Procedure


                                 25
     It was not until Collier in 2019 that this Court first examined

in a published opinion how the trial court out-of-time appeal

procedure had been created, how it evolved, and how it had persisted

as a parallel procedure for convicted defendants who could also use

habeas corpus proceedings to vindicate their constitutional rights.

Although we did not determine in Collier “whether the out-of-time

appeal process in the trial court should be maintained,” we began

expressing skepticism in that regard, recognizing that “the trial

court process is certainly an exception to the general rule that a trial

court’s jurisdiction ends following a final conviction and the end of

the term of court.” Collier, 

. Our review of the history

of that process made apparent that the relevant precedents were

conspicuously short on reasoning and authority; Collier explained

that “our out-of-time appeal jurisprudence . . . focused more on the

remedial purpose served by an out-of-time appeal and less on the

nature of the remedy or the appropriate process for obtaining it.” 

.

     Moreover, given the concern the State raised in Collier about

                                  26
“long-delayed out-of-time appeal motions brought in the trial court,”

, we acknowledged that motions for out-of-time appeal in

trial courts were “not directly barred by the application of any

statute of limitation” and considered whether the common-law

doctrine of laches (also known as “prejudicial delay”) could apply to

the proceedings to bar a convicted defendant from obtaining relief,

. The majority opinion concluded that the State could

“raise the defense of ‘prejudicial delay’ to out-of-time appeal motions

filed in the trial court,” 

, and further noted that the State

could argue “and the trial court [could] consider the time periods,

factors, and other criteria set out in the most analogous limitation

and laches provisions—those found in the Habeas Corpus Act—in

determining whether the State’s defense has merit and the

defendant’s motion should be dismissed,” 

.9 Four Justices




      9 It is notable that the absence of a time limitation for the trial court out-

of-time appeal procedure stands in stark contrast with other post-conviction
filings in trial courts, such as a motion for new trial—which must be filed
“within 30 days of the entry of the judgment,” OCGA § 5-5-40 (a), and a motion
to withdraw a guilty plea—which under the common law must be filed within
the same term of court, see Schoicket, 

.
                                        27
did not join that portion of the Collier majority, however,

characterizing the majority opinion’s endorsement of a prejudicial

delay defense as “tinker[ing] at the margins of the mess we have

made.”   Id. at 379 (Peterson, J., concurring specially, joined by

Blackwell, Boggs, and Bethel, JJ.).

     Not long after Collier, in Kelly v. State, we addressed another

outgrowth of our out-of-time appeal jurisprudence: our prior holding

in Maxwell v. State, 

 (

) (1992),

that if an out-of-time appeal is granted in the trial court, the

defendant “is permitted to file a second motion for new trial in order

to raise claims of trial counsel ineffectiveness that could not have

been raised in the initial motion for new trial.” Kelly, 

. Maxwell stated “that the grant of an out-of-time appeal permits

a defendant, by the grace of the court, to start the post-conviction

process anew.”    

.     We determined that this

statement in Maxwell (and later cases) was overbroad, disapproved

that broad reading, and held that a defendant who had been granted

a motion for out-of-time appeal in the trial court was not authorized

                                 28
to file a second motion for new trial that did not involve ineffective-

assistance-of-counsel claims that she was “unable to assert in her

initial motion for new trial.” Kelly, 

.           We

dismissed Kelly’s appeal as a result. See 

.

     Most recently, in Schoicket, we were faced with the question of

whether to implement a “logical extension” of our precedents to

allow a defendant who had obtained an out-of-time appeal in the

trial court also to file an otherwise-untimely motion to withdraw her

guilty plea, or whether to draw the line and stop “trail-blazing” with

our “invented remedy.” 312 Ga. at 825-826, 832. In declining to

extend our out-of-time appeal jurisprudence to motions to withdraw

guilty   pleas,   Justice   Peterson,   writing     for   the   majority,

acknowledged that “this Court ignored contrary precedent and

statutes in creating out of whole cloth the motion for out-of-time

appeal in the trial court.”     Id. at 825.       The majority opinion

recognized that we “should not have invented” that post-conviction

procedure, id. at 826, and that “[f]or decades now, our post-

conviction jurisprudence has been described as a ‘tangle’ of

                                  29
‘confusing’ procedural rules,” id. at 830. Regarding the “competing

concerns involved in post-conviction relief procedures—addressing

violations of a defendant’s constitutional rights on the one hand, and

ensuring finality on the other,” the majority opinion pointed out that

“the General Assembly has enacted habeas statutes balancing these

competing concerns” and that “[w]e lack the authority to substitute

our policy preferences for those of the General Assembly and thereby

allow a defendant to skirt the legislatively established process.” Id.

at 831. Even one of the dissents in Schoicket recognized that

     [a]t multiple points, we could have retracted our
     recognition of the out-of-time appeal procedural vehicle
     and once again adhered to our conclusion in Neal that the
     General Assembly in the Habeas Corpus Act provided an
     adequate remedy—and the exclusive one—for the right of
     appeal frustrated by the ineffective assistance of counsel.

Schoicket, 

 (Ellington, J., dissenting in part).
     3. Stare Decisis Analysis

     In recognition of these concerns, in this case we asked the

parties and amici curiae for briefs and oral arguments addressing

whether the procedural vehicle of a motion for out-of-time appeal in

a trial court should continue to be available to a convicted defendant

                                  30
who alleges that she was deprived of her right to appeal because of

her counsel’s alleged ineffective assistance, as opposed to a petition

for writ of habeas corpus serving as the exclusive procedural vehicle

through which to seek that remedy. That question is a difficult one:

given that the judicially created motion for out-of-time appeal

procedure in the trial court has existed for many years now, do

principles of stare decisis require that it be perpetuated? See Nalls

v. State, 

 (

) (2018) (“Before we overrule

our incorrectly decided case law on this point, we must consider

whether stare decisis counsels us not to.”); Ramos v. Louisiana, —

U.S. —, — (

, 206 LE2d 583) (2020) (Kavanaugh,

J., concurring in part) (“[A]pplying the doctrine of stare decisis, this

Court ordinarily adheres to precedent, but sometimes overrules

precedent. The difficult question, then, is when to overrule an

erroneous precedent.”). As explained more below, we conclude that

stare decisis principles do not weigh in favor of adhering to our trial

court out-of-time appeal precedent and that we should revert to the

law properly established by the Habeas Corpus Act and our decision

                                  31
in Neal.

     (a)   Background Principles

     Stare decisis is a “principle of policy,” State v. Jackson, 

 (

) (2010) (citation and punctuation omitted),

under which courts “generally stand by their prior decisions,

because it promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity of

the judicial process.” Pounds v. State, 

 (

) (2020) (citation and punctuation omitted). This Court has a

longstanding tradition of considering stare decisis when evaluating

whether to overrule its precedents, and we invoked such an analysis

even before we articulated in Jackson a more consistent set of factors

we would consider in doing so. See, e.g., Leary v. Durham, 

 (1848); Robison v. Beall, 

 (1858), disapproved

in part on other grounds, Fitzpatrick v. McGregor, 

(

) (1909); Adams v. Brooks, 

 (1866); City of

Atlanta v. First Presbyterian Church, 

 (

) (1891); Ellison v. Ga. R.R. Co., 

 (

)

(1891); Rogers v. Carmichael, 

 (

)

(1937); Davis v. Penn Mut. Life Ins. Co., 

 (

) (1944); Humthlett v. Reeves, 

 (

) (1954); Sharpe v. Dept. of Transp., 

 (

) (1996); Etkind v. Suarez, 

 (

) (1999); Harper v. State, 

 (

) (2009).

Since Jackson, we have regularly considered in our stare decisis

analyses “a number of factors, including the age of the precedent,

the reliance interests involved, the workability of the prior decision,

and most importantly, the soundness of its reasoning.” Pounds, 

 (citation and punctuation omitted). And although the

soundness, age, reliance, and workability factors have provided a

useful framework for such analyses, the list of factors we have

considered has never purported to be exclusive. See, e.g., Jackson,

 (“[W]e consider factors such as . . . .”) (citing Montejo

v. Louisiana, 

 (

, 173 LE2d 955) (2009))

(emphasis supplied).

                                  33
      “But stare decisis is not an inexorable command.” Pounds, 

 (citation and punctuation omitted). See also Woodard v.

State, 

 (

) (2015) (stare decisis is not a

“mechanical formula of adherence to the latest decision”) (citation

and punctuation omitted). “[I]n reconsidering our prior decisions,

we must balance the importance of having the question decided

against the importance of having it decided right.” Gilliam v. State,

 (

) (2021) (citation and punctuation

omitted; emphasis in original). See also Harper, 

(“While ‘the rule of stare decisis is a wholesome one, it should not be

used to sanctify and perpetuate error. Courts, like individuals, but

with more caution and deliberation, must sometimes reconsider

what has been already carefully considered, and rectify their own

mistakes.’”) (quoting City of Atlanta, 

)

(punctuation omitted). To that end, we have explained that the

source of the precedent we are examining plays an important role in

that balance: “stare decisis carries less weight when our prior

precedent involved the interpretation of the Constitution,” Olevik v.

                                  34
State, 

 (

) (2017), whereas the force of

stare decisis is generally greater with respect to an erroneous

interpretation of statutory law, see Cooper Tire & Rubber Co. v.

McCall, 

 (

) (2021) (“Considerations of

stare decisis have greater weight with regard to precedents

interpreting statutes than precedents regarding constitutional

issues.”). We have supported this distinction by reasoning that “it

is much harder for the democratic process to correct or alter our

interpretation of the Constitution than our interpretation of a

statute or regulation.”   Gilliam, 

 (citation and

punctuation omitted).

     Here, because the few actual precedents we are reconsidering

are cases in which this Court ignored or contravened the statutory

scheme established by the Habeas Corpus Act, we apply greater

weight to them than we would if they were rooted in our

interpretation of the federal or state Constitution. See Cooper Tire

& Rubber Co., 312 Ga. at 435. However, even within the context of

statutory stare decisis, when “we have misinterpreted a statute by

                                35
failing to consider the statute’s language at all, stare decisis applies

with less force.” Nalls, 304 Ga. at 179-180 (emphasis supplied).

     Thus, considerations of stare decisis apply with less force to

Rowland and its progeny than they otherwise would to precedents

rooted in statutory interpretation. That is because Rowland and its

pre-Collier progeny utterly ignored the statutory text and context of

the Habeas Corpus Act and indeed contradicted Neal’s earlier and

definitive holding that correctly applied the statutory scheme set

forth in the Act “without engaging in any analysis of stare decisis.”

Willis v. State, 

 (

) (2018) (citation and

punctuation omitted). Keeping these principles in mind, we turn to

the stare decisis analysis in this case.

     (b)   Soundness of the Reasoning

     We have consistently said that the soundness of the reasoning

of the relevant precedent is the most important factor in the stare

decisis analysis. See, e.g., Pounds, 

; Olevik, 

; Jackson, 

. As we explained above and will

explain more below, our creation and endorsement of the trial court

                                  36
out-of-time-appeal procedural vehicle, and our precedents that flow

from that creation, are unequivocally unsound.

     As is apparent from our review of Georgia law in Division 0 0

above, the separate procedure that this Court created for obtaining

an out-of-time appeal in the trial court has neither a statutory nor a

common-law basis. The initial cases in which we considered the

merits of an appeal following a trial court ruling on a motion for an

out-of-time appeal, King and Furgerson, did not acknowledge the

existence of the Habeas Corpus Act, let alone distinguish between

motions for out-of-time appeals sought in a trial court and similar

filings made in a habeas court.       Rowland, on the other hand,

acknowledged that the defendant in that case could seek relief in

habeas, but offered no analysis of the import of that point, and was

otherwise devoid of reasoning showing why a trial court out-of-time

appeal procedure could or should exist. And Rowland’s progeny

wholly lacked acknowledgment and analysis of this state’s post-

conviction statutory scheme. Most importantly for these purposes,

Rowland and its progeny not only failed to cite precedent to support

                                 37
our Court’s creation of a trial court out-of-time appeal procedural

vehicle; they also ignored precedent from this Court (Neal) that

rejected the very action that Rowland and its progeny endorsed. As

Justice Peterson’s special concurrence in Collier recognized, we

“created out of whole cloth” the trial court out-of-time-appeal

procedure; we did so “without any analysis whatsoever”; and “there

can be no doubt that our reasons—to the extent that we’ve had any—

have been purely ‘policy.’” 

 (Peterson, J.,

concurring specially).10

      We have also outlined above the inconsistency of the judicially

created trial court out-of-time appeal procedure with the legal

conclusion articulated in other cases, including in Neal and

Mitchum, that the Habeas Corpus Act serves as the exclusive




      10 By the time we decided Schoicket two years later, eight Justices
expressly agreed that we had “creat[ed] out of whole cloth” the out-of-time
appeal procedure. See Schoicket, 

; 

 (Colvin, J.,
dissenting in part but agreeing that we created the out-of-time appeal
procedure “out of whole cloth” and proposing that we “follow Neal,” “eliminat[e]
the stand-alone out-of-time appeal procedure,” and “require prisoners seeking
an out-of-time appeal and associated remedies to use the habeas procedures
that the General Assembly has afforded”).
                                      38
procedural vehicle in Georgia law for convicted defendants to seek

relief for alleged constitutional violations relating to their

convictions. See Pounds, 

 (overruling cases holding

that a late-filed motion for new trial was void and an order denying

it must be affirmed, in part because the reasoning of the prior

precedent at issue was “inconsistent with applicable legal principles

articulated in our other case law in this area”). Our cases creating

the motion for out-of-time appeal in the trial court are thus

“unsound and contrary to the body of our law,” Jackson, 

, and that weighs most heavily in our stare decisis analysis.11


     11 In his dissent in this case, Justice Peterson argues—as he did in his

dissent in Frett—that “once we’ve determined that a decision was unsound, the
other Jackson factors never seem to be particularly meaningful.” See Frett v.
State Farm Employee Workers’ Compensation, 

 (

) (2020) (Peterson, J., dissenting). We disagree, and our answer today is
the same one the Court provided in Frett:
      [I]t is unsurprising that the Court would expend the judicial time
      and resources to write an extensive analysis of stare decisis mostly
      in cases in which the Court decides to depart from the usual rule
      that we adhere to our precedents, and it is equally unsurprising
      that we would say little about stare decisis in the numerous cases
      in which we stand by our precedents. Indeed, there are plenty of
      recent cases in which we have adhered to and applied our statutory
      precedents without any discussion of—or any express reference
      to—the doctrine of stare decisis, even when a party has asked us
      to revisit those precedents. In a perfect world in which judicial

                                     39
      Moreover, an unusual aspect of this case is that neither the

State nor any of the amici curiae—which represent the views of both

prosecutors (PAC) and criminal defense lawyers (GACDL)—

contends that our judicial decisions creating or endorsing the trial

court out-of-time appeal procedural vehicle are supported by sound

reasoning or relevant authority.12                 In light of all of these



       time and resources were not so limited, perhaps it would be better
       to write about stare decisis whenever a court unremarkably
       adheres to its precedents. But that is not reality for very busy
       courts like ours.

 at 62 n.15 (majority opinion) (citations omitted).

      12 All of the parties and amici who have weighed in on the stare decisis

analysis of this Court’s cases creating the out-of-time appeal procedural vehicle
agree that those precedents are unsound. The Attorney General contends that
“this Court’s decisions holding that motions for out-of-time appeals are
available to raise ineffective-assistance claims are plainly wrong. The rule
conflicts with Georgia’s statutory scheme for post-conviction relief, as well as
this Court’s other cases.” The District Attorney contends that “the soundness
of the reasoning for these cases . . . has certainly been ‘confusing’ at best, if not,
altogether unsound, regardless of how well-intended they are.” Amicus PAC
states that “the basis for the creation of an out-of-time appeal is unwieldy,
contradictory, and unsound, as it creates two paths to relief, contradicts
statute, and does not lead to finality in judgment.” And even GACDL concedes
that “[t]he out-of-time appeal is a jerry-rigged remedy, illegitimate but
practical,” and that “[t]here can be little doubt at this point that [this] Court
was without authority to craft the out-of-time-appeal [procedure] in the first
instance.” We note that in her supplemental brief, Cook appears to focus her
stare-decisis analysis exclusively on Schoicket instead of on the earlier out-of-
time appeal precedent discussed above in Division 0 0, and as a result does not
offer her views on that precedent.
                                         40
considerations, such “significant unsoundness cuts heavily in favor

of overruling” our prior precedent. Duke, 

 (citation

and punctuation omitted).

     (c) Age of Precedent, Traditional Reliance Interests, and
“Entrenchment”

     Two other familiar stare decisis factors—age and reliance

interests—are nominally distinct, but can also be intertwined. This

makes sense: the older a precedent is, the more opportunity it has

to become part of the legal landscape on which the public, the bench

and bar, and others rely. But cf., e.g., Frett v. State Farm Employee

Workers’ Compensation, 

 (

) (2020)

(pointing out, in the course of overruling an 85-year-old precedent,

the opposite phenomenon and noting that we had “never cited [the

precedent] for its specific holding . . . and ha[d] not cited [the

precedent] for any proposition at all in the past 60 years”) (emphasis

in original).

     Rarely, if ever, is the age of a precedent itself dispositive in a

stare decisis analysis, and that is so here. See Southall v. State, 300


                                  

 (

) (2017) (“[W]ithout more, that we have

been wrong for many years is no reason to persist in the error.”)

(citation and punctuation omitted). As discussed above in Division

0 0, the first actual precedent approving and applying the trial court

out-of-time appeal procedure was Rowland, a 27-year-old case that

we can hardly call “ancient.” Willis, 

 (citation and

punctuation omitted). We have overruled statutory precedents of

comparable, and sometimes older, ages. See, e.g., Duke, 

 (overruling 19-year-old precedent); City of Cumming v. Flowers,

 (

) (2017) (overruling 21-year-old

precedent); Woodard, 

 (overruling 24-year-old

precedent); State v. Burns, 

 (

)

(2019) (overruling 30-year-old precedent); Jackson, 

(overruling precedent that was “nearly three decades old”); Southall,

 (overruling 45-year-old precedent). We thus move to

an examination of the broader reliance interests related to our trial

court out-of-time-appeal precedents.

     When it comes to reliance interests, we have traditionally

                                 42
looked to whether the precedent at issue affects property or contract

issues, and whether it establishes a substantive right; reliance

interests are at their apex when they involve these types of interests.

See, e.g., Savage v. State of Ga., 

 (

) (2015) (“[S]tare decisis is especially important where judicial

decisions create substantial reliance interests, as is most common

with rulings involving contract and property rights.”) (citing cases).

See also Olevik, 

 (“Substantial reliance interests are

an important consideration for precedents involving contract and

property rights, ‘where parties may have acted in conformance with

existing legal rules in order to conduct transactions.’”) (citation

omitted). Compare Jackson, 

 (explaining that the

precedent at issue “affects no property or contract issues and

establishes no substantive rights, so it creates no meaningful

reliance interests”); Nalls, 304 Ga. at 180 (same).

     No such reliance interests are at stake here.           We have

repeatedly held that precedents—like the ones at issue here—

relating to procedures, including post-conviction procedures, create

                                  43
no substantive rights “in which anyone has a significant reliance

interest.” Duke, 

 (precedent that “disregard[ed]”

the statutory requirement for a certificate of immediate review

before pursuing an interlocutory appeal did “not involve substantial

reliance interests”). See also, e.g., Pounds, 

 (“[T]he

issues involved are ones of appellate procedure, not . . . substantive

rights in which anyone has a significant reliance interest.”) (citation

and punctuation omitted); Willis, 

 (“As to the reliance

issues potentially at stake, we note that the holdings in [our prior

precedents] are procedural in nature and establish no substantive

rights.”) (citation and punctuation omitted). Moreover, Rowland

and its progeny did not establish any substantive rights in the first

instance; they merely created an alternative procedural vehicle—

albeit a legally unauthorized one—for alleging the violation of a

preexisting constitutional right (i.e., the effective assistance of

counsel in filing a timely appeal as of right) and for obtaining a




                                  44
constitutionally necessary remedy if that right was violated.13

Eliminating this alternate procedure would not extinguish a

convicted defendant’s ability to vindicate an alleged violation of her

right to appeal due to constitutionally ineffective assistance of

counsel, because the General Assembly long ago established a

habeas corpus procedure through which a convicted defendant can

vindicate that very same constitutional claim.14

      We have also considered, however, a different type of reliance

interest in some of our stare decisis analyses: the “entrenchment” of


      13 While GACDL concedes that “[p]rocedural rules do not normally create

the kinds of reliance interests that stare decisis is concerned with because they
affect no property or contract issues and establish no substantive rights”
(citations and punctuation omitted), it nonetheless points to a number of non-
traditional concerns that it characterizes as reliance interests in the trial court
out-of-time appeal system. Those include “the incalculable value of the time
lost waiting for a habeas court that is a stranger to the parties . . . to decide in
a formal proceeding what a sentencing court can decide promptly on a motion”
and the fact that defendants are not required to pay a filing fee for out-of-time
appeals, whereas petitions for habeas corpus require filing fees and other costs.
Compare OCGA § 15-6-77 (h), (k) with OCGA § 24-13-25. These and other
factors are considered below in Division 0 0 as part of our workability analysis.

      14 To the extent GACDL postulates that, if the trial court out-of-time

appeal vehicle were eliminated, some number of convicted defendants would
lose their appeal as of right and might also have missed the relevant statute of
limitation in habeas corpus, we note that the General Assembly can grant
relief from the habeas statute of limitation if it deems any such potential result
unjust.
                                        45
the precedent in the legal system. See, e.g., Frett, 309 Ga. at 60

(noting that the precedent at issue had not “become deeply

entrenched in our jurisprudence”). See also Williams v. Harvey, 

 (

) (2021) (the holdings in prior precedents

are “neither ancient nor entrenched within our judicial system”)

(citation and punctuation omitted); Flowers, 

 (the

prior precedent is “neither ancient nor entrenched”) (citation and

punctuation omitted). Whether entrenchment constitutes a species

of reliance or whether it is instead a separate factor in the stare

decisis analysis is of no moment; we see no reason we cannot

consider it here.

     The dissent seizes on the concept of entrenchment and focuses

almost myopically on it in its stare decisis analysis. Characterizing

entrenchment “in a narrow sense [as whether a precedent’s]

relevant holding has been applied frequently,” and more broadly as

“potential disruption to the legal system that might be caused by

suddenly jettisoning a particular precedent,” it contends that “the

motion for out-of-time appeal has become deeply entrenched.”

                                 46
GACDL shares the disruption concern, characterizing the trial court

out-of-time appeal procedure as “one thread in Georgia’s Gordian

knot of criminal-appellate and post-conviction practice.”

      We cannot say, however, that entrenchment of the trial court

out-of-time appeal procedure in Georgia weighs so heavily in the

stare decisis analysis that we should retain our erroneous

precedents. First, the actual number of precedents on the trial court

out-of-time appeal procedure in Georgia—i.e., cases holding that a

motion for out-of-time appeal in the trial court was a proper

procedure such that the case needs to be overruled if the trial court

out-of-time appeal procedure were eliminated—are few.                   That

limited universe of cases includes Rowland—our first real precedent

addressing and approving the trial court out-of-time appeal

procedure—and a handful of progeny cases, a fact the dissent glosses

over by shifting focus to the 14 cases that were docketed in our Court

last year after a trial court granted a motion for out-of-time appeal.15


      15 We have identified only five cases—the last one decided more than 15

years ago—that appear expressly to endorse the filing of an out-of-time appeal

                                     47
The dissent points to these cases, which reference trial court grants

of motions for out-of-time appeals in the first footnote of this Court’s

opinions recounting the procedural history of murder cases, and

contends that our trial court out-of-time appeal precedent “has

become deeply entrenched” because “it is regularly applied in a

significant number of cases.”

      We acknowledge the value—at least in a case like this one—in

identifying potential disruption to the legal system that might result

if a precedent is overruled. We are not unmindful of the practice

that has built up around convicted defendants seeking motions for

out-of-time appeal in trial courts and of appellate courts applying



in the trial court and thus constitute precedent for purposes of a stare decisis
analysis. See Carr v. State, 

 (

) (2006)
(extensively quoting Rowland and directing Carr that, “should she wish to
appeal her convictions, she must file a request for an out-of-time appeal in the
trial court”); Cody v. State, 

 (

) (2004) (stating
that Cody “has the option of applying for an out-of-time appeal in the court of
conviction”); Fulton v. State, 

 (

) (2003) (“Fulton may
seek an out-of-time appeal in the trial court.”); Wicks v. State, 

(

) (2003) (“If Wicks wishes to pursue appellate relief, he can seek
an out-of-time appeal in the trial court.”), disapproved on other grounds,
Pounds, 

 n.4; Porter v. State, 

 (

)
(1999) (“To obtain an out-of-time appeal, Porter must apply for that relief in
the trial court . . . . ”), disapproved on other grounds, Pounds, 

n.4.
                                       48
Rowland and its progeny to decide cases following trial-court rulings

on motions for out-of-time appeal. As GACDL casts it, “the criminal

legal system has arranged itself around the availability of the direct,

out-of-time remedy.” But we are not willing to weight this type of

entrenchment over all other factors, because the regular application

of a procedural precedent—even in a “significant number of cases,”

as the dissent suggests—is not dispositive of a stare decisis analysis,

particularly where another procedure—the one we have explained

is exclusive—is available.

     Nor is the second entrenchment-related point the dissent

makes dispositive: that when our out-of-time appeal precedents are

applied, “it often makes a substantial difference,” because when

such a motion is granted “it permits an appeal that would otherwise

be barred without the years-long delay of habeas.” To be sure, when

a trial court grants an out-of-time appeal, it allows a defendant to

proceed with an appeal that would otherwise be time-barred. But

that does not support the dissent’s entrenchment argument, because

a convicted defendant may obtain the same result by filing a petition

                                  49
in a habeas court using the statutorily authorized procedure. That

procedure—habeas corpus—exists now and will continue to exist

even if we eliminate the trial court out-of-time appeal procedure.

     The dissent’s stronger claim—which we address more fully

below as part of our workability analysis—is that motions for out-of-

time appeals in trial courts are quicker and more efficient than

habeas corpus proceedings. That may well be true in many cases.

But habeas corpus is the procedure the General Assembly has

established to provide the remedy for the unconstitutional

deprivation of the right to appeal; this Court has determined that

“habeas corpus is the exclusive post-appeal procedure available to a

criminal defendant who asserts the denial of a constitutional right,”

Mitchum, 

 (citation and punctuation omitted;

emphasis in original); and even if the alternate procedural vehicle

we created may result in requests for out-of-time appeals being

decided faster and more efficiently, that alone is not a reason to

retain that procedure, even if it has become “entrenched.”

     (d) Workability

                                 50
     That brings us to workability. As the dissent notes and as we

discuss below, some aspects of the trial court out-of-time appeal

procedure we created may be more workable or even preferable (at

least in the view of some Justices) to the statutorily authorized

habeas corpus process. But there is a fundamental—and in our

view, insurmountable—workability problem with our precedents:

there is no end in sight to our Court being asked to fill in the details

of the trial court out-of-time appeal procedure we created.         See

Harper, 

 (overruling prior precedent in part

because of workability problems stemming from the lack of “rules or

precedents guiding individuals in the filing of, or courts in their

consideration of,” the post-appeal procedure that our Court had

created in a prior case).

     Administration of the Habeas Corpus Act, by contrast, does not

require judges to establish such rules in the first instance; the

General Assembly has already established them by statute. On that

point, the Habeas Corpus Act—the General Assembly’s chosen


                                  51
procedure for remedying alleged violations of convicted defendants’

constitutional rights, including claims that a right to appeal was

frustrated because of a constitutional violation—establishes that

the superior court in the county of the defendant’s detention has

“exclusive jurisdiction” over the defendant’s habeas petition, OCGA

§ 9-14-43; contains requirements for what petitions must include,

OCGA § 9-14-44, and how they must be served, OCGA § 9-14-45;

establishes deadlines for answering a petition, OCGA § 9-14-47; and

lays out how hearings must operate, OCGA § 9-14-48, what the

habeas court must put in writing to support its judgment, OCGA § 9-

14-49, and how that judgment must be appealed, OCGA § 9-14-52.

The Act imposes definite time limits within which petitions must be

brought: it requires a defendant to challenge a felony conviction not

involving a death sentence within four years of “the conclusion of

direct review or the expiration of the time for seeking such review”

and to challenge a misdemeanor within one year, OCGA § 9-14-42

(c)—statutory limitations periods that are not subject to equitable

tolling, see Stubbs v. Hall, 

 (

) (2020).

                                 52
It provides for a statutory defense of laches, OCGA § 9-14-48 (e), and

contains a bar on successive habeas petitions, OCGA § 9-14-51.

Moreover, the Civil Practice Act, OCGA § 9-11-1 et seq., generally

applies to habeas corpus proceedings. See OCGA § 9-11-81; Mitchell

v. Forrester, 

 (

) (1981) (“[T]he CPA

now applies to habeas corpus applications.”).16

      Yet no corresponding requirements for motions for out-of-time

appeals in trial courts are clearly applicable—at least not from the

common law, statutes, or court rules, which do not establish or

recognize such motions. The only rules that govern the operation of

the trial court out-of-time appeal procedure are rules that trial

judges formulate and appellate judges approve, modify, or reject if

challenged. Every time that is done, judges again overstep their


      16 Unlike in habeas proceedings, where the Civil Practice Act applies, we

have not clearly answered what, if any, statutory authority related to court
proceedings applies to trial court out-of-time appeal proceedings. To the
contrary, we have stated that courts and parties should look to the Habeas
Corpus Act for guidance—at least with respect to issues related to laches—but
even then we have not directly applied the Act’s statutory limitations to the
trial court out-of-time appeal procedure. See Collier, 

. This
unanswered question makes it more likely that legal questions about the
limitations of the trial court out-of-time appeal procedure will be raised again
in our Court.
                                      53
authority and re-engage in a policy-making exercise that is typically

reserved for legislators. Faced with questions like whether to try to

mirror the requirements of the Habeas Corpus Act, follow

requirements for other types of motions filed in trial courts, or make

up rules we think are the best as a matter of policy, we have over

the years created or endorsed a hodge-podge of guidelines for the

trial court out-of-time appeal procedure on a case-by-case basis. See,

e.g., Collier, 

 (noting that “the body of case law

governing procedures applicable to . . . motions [for out-of-time

appeal in trial courts] is far less developed” than the Habeas Corpus

Act and habeas case law and that “we have . . . addressed defenses

to such motions [for out-of-time appeal] as the State has raised

them”). See also 

 at 373 n.12 (citing prior cases applying the

doctrines of res judicata and collateral estoppel to motions for out-

of-time appeal in the trial court).17 And the reality is that we have


      17 Unless we, as a matter of policy, import all of the requirements of the

Habeas Corpus Act into the trial court out-of-time appeal procedure, that
procedure may allow a convicted defendant who seeks relief through a motion
for out-of-time appeal in a trial court to avail herself of a completely different—

                                        54
little idea what rules trial courts are applying, or if they are applying

whatever rules they have established with any degree of uniformity

or consistency. As Justice Ellington has observed, “by allowing out-

of-time appeals, we have, repeatedly, already substituted our policy

preferences for those of the General Assembly and allowed

defendants to skirt the legislatively-established habeas process.”

Schoicket, 

 (Ellington, J., dissenting in part).

     For example, because no deadline or statute of limitation

expressly restricts a convicted defendant’s ability to file a motion for

out-of-time appeal in a trial court, in Collier the State argued that

the Court should “abolish the practice of allowing defendants to file

a motion for an out-of-time appeal in the trial court” to prevent

defendants from filing motions for out-of-time appeal years or

decades after their convictions, when the State may have lost the

evidence needed to defend against the motion. 

. The

Collier majority noted that “determining whether the out-of-time



and potentially less stringent—set of requirements than if she filed the very
same claim as part of a petition for habeas corpus.
                                     55
appeal process in the trial court should be maintained would involve

a complex stare decisis analysis” and that those “issues ha[d] not

been fully briefed” in that case. 

. The majority instead

concluded that a laches-like “prejudicial delay” defense could

potentially provide the State with a defense against unreasonably

delayed motions for out-of-time appeal filed in trial courts. 

 (“[W]e hold that the State may raise the defense of ‘prejudicial

delay’ to out-of-time appeal motions filed in the trial court.”). See

also 

 (“When a defendant files a motion for an out-of-time

appeal in the trial court, the State may argue that the defendant’s

delay in doing so has unduly prejudiced the State’s ability to respond

to the motion.”); 

 (“[T]he trial court may consider the time

periods, factors, and other criteria set out in the most analogous

limitation and laches provisions—those found in the Habeas Corpus

Act[.]”).   Four Justices expressed doubt about that conclusion,

however, and concurred in the judgment of the prejudicial-delay

portion of the majority opinion only “to the extent that it correctly

observe[d] that none of our cases have held that the State cannot

                                 56
assert a defense of prejudicial delay.”          

 (Peterson, J.,

concurring specially, joined by Blackwell, Boggs, and Bethel, JJ.).

How exactly a prejudicial-delay defense would work in these cases

is an open question, and the answer is anyone’s guess.18 What is

more certain is that this Court ultimately (and repeatedly) will have

to make up the details if we retain the trial court out-of-time appeal

procedure, which requires these sorts of questions to be answered by

judges.

      The questions did not stop after Collier. If anything, Collier

begged even more questions, which Schoicket illustrates: the

defendant in that case asked us to decide whether we would

“logically extend” our holding in Collier, as Justice Peterson’s special

concurrence had hinted we might. In Schoicket, we were forced to

grapple with whether a granted out-of-time appeal not only



      18 Justice Peterson goes a step further today in his dissent by suggesting

that, because the General Assembly added a laches defense to the Habeas
Corpus Act in 2004 and did nothing to modify motions for out-of-time appeal
in trial courts, laches does not apply to our judicially created procedure—
meaning that a motion for out-of-time appeal may be filed decades after a final
conviction. And Justice Ellington joins the dissent, even though he authored
Collier.
                                      57
authorizes a defendant to file what would otherwise be an untimely

appeal, but also to file an untimely motion to withdraw a guilty

plea—which would also allow the defendant to expand the record

that she could use to assert previously unraised claims.          See

Schoicket, 

; Collier, 

 (Peterson, J.,

concurring specially).

     We had held in Collier that whether a defendant “seeks an out-

of-time appeal from a final judgment of conviction entered following

a trial or following a guilty plea” did not matter, and we overruled

cases that held otherwise.      See Collier, 

.

Nevertheless, in Schoicket we decided that the very same

distinction—whether a defendant was adjudicated guilty by trial

versus by entering a plea—actually did matter, because we did not

allow the defendant in that case, who had been granted an out-of-

time appeal after judgment of conviction was entered on her guilty

plea, the relief she sought: a motion to withdraw her guilty plea. See

Schoicket, 

; see also Boone, ___ Ga. at ___ (relying on

Schoicket to hold that “a grant of an out-of-time appeal would not

                                 58
entitle Boone to pursue an otherwise-untimely motion to withdraw

a guilty plea”). Even though we had acknowledged that “permitting

such a motion would be a logical extension of our precedent that

invented certain post-conviction remedies,” and that the Court of

Appeals had done just that in Dawson v. State, 

 (

) (2010), and Sosa v. State, 

, 639

& n.1 (

) (2019), we rejected the extension of our

precedent and overruled Dawson and Sosa. See Schoicket, 

 n.9. We concluded that “we should not have invented those

remedies in the first place” and “decline[d] to invent additional

remedies that might further complicate our post-conviction

jurisprudence.” 

. See also 

 (Ellington, J.,

dissenting in part) (arguing that there is no “principled reason to

deny guilty-plea defendants access to the procedural tool we created”

and contending that we should “ensure that access to the

misbegotten procedure is provided in an even-handed manner” by

allowing defendants who are granted an out-of-time appeal to

withdraw their guilty pleas); Collier, 

 (Peterson, J.,

                                 59
concurring specially) (noting that allowing defendants to move to

withdraw guilty pleas after being granted out-of-time appeals would

“appear to be merely a logical extension” of our out-of-time appeal

precedents).

     These examples of the issues we have faced point to another

aspect of this workability problem: the lines we have drawn in our

trial court out-of-time appeal precedents are often based on

considerations of policy rather than law.     The line we drew in

Schoicket—where we acknowledged that the defendant’s requested

extension of our out-of-time appeal precedents was logical and

anticipated by the Court, but nonetheless rejected it to avoid

“further complicat[ing] our post-conviction jurisprudence,” 312 Ga.

at 826—amply illustrates this concern. Indeed, we have already

admitted that “our inventions” in this area “have never purported to

be even-handed.” Id. at 832 (emphasizing that “a motion for out-of-

time appeal can be granted only if one particular kind of ineffective

assistance of counsel claim succeeds, and all sorts of other

ineffectiveness claims not raised on direct appeal can be brought

                                 60
only in habeas”).   The longer our trial court out-of-time appeal

precedents persist—and the more these issues are highlighted by

cases like Collier, Kelly, and Schoicket—the more likely it is that we

will have to continue to draw lines to define the procedure’s

boundaries, including to “retreat[ ] from ‘broad statements’” we have

made in some of our precedents and to “avoid dispensing

unwarranted windfalls.” Schoicket, 

 (acknowledging

that “following our decision in Collier, we have retreated from broad

statements about the effect of a granted out-of-time appeal in order

to avoid dispensing unwarranted windfalls”).

     In this regard, we have already identified two additional issues

that arise in the trial court out-of-time appeal procedure—how

claims of ineffective assistance of counsel may be presented, and

when defendants are legally entitled to appointed counsel—that will

likely require this Court at some point to provide answers about

apparent conflicts between existing precedent and practices that

appear to be common in the trial court out-of-time appeal procedure.

     As the dissent points out, in some cases in which a convicted

                                 61
defendant’s lawyer misses an appellate filing deadline inadvertently

and notices the oversight not long thereafter, it appears that the

lawyer files a motion for out-of-time appeal in the trial court

admitting his error, the State concedes that the motion should be

granted, and the trial court grants the motion. See, e.g., Waller v.

State, 

, 518 n.1 (

) (2021) (“Appellant filed

a motion for out-of-time appeal through trial counsel.”); Swan v.

State, 

 (

) (2005) (“Trial counsel

filed a motion for an out-of-time appeal. . . .”); Brown v. State, 

 (

) (1991) (“The record shows

defendant’s trial counsel filed a motion for out-of-time appeal. . . .”).

Asserting a claim of ineffective assistance in that way may be a

relatively fast and efficient means of getting the appellate process

moving again. But that process appears to conflict with this Court’s

precedent holding that a lawyer cannot assert his own ineffective

assistance. See, e.g., Hood v. State, 

 (

)

(2007) (“Because a lawyer may not ethically present a claim that

he/she provided a client with ineffective assistance of counsel, a

                                   62
claim of ineffective assistance of trial counsel cannot be pursued

unless trial counsel is no longer representing the convicted

defendant.”) (citation omitted; emphasis supplied).           See also

Garland v. State, 

, 203 & n.2 (

) (2008)

(explaining that “[c]ounsel prosecuting an ineffective assistance

claim must be free to operate independently of the attorney whose

performance is in question” and that “Georgia law has thus

decisively rejected the position . . . that trial counsel is not only

competent    to   evaluate   the   ineffectiveness   of   his/her   own

performance, but is ‘actually in a superior position to do so’”);

Delevan v. State, 

, 49-51 (

) (2018)

(vacating the trial court’s denial of defendant’s motion for an out-of-

time appeal filed by the lawyer who was allegedly ineffective,

concluding that “[t]he Supreme Court of Georgia has repeatedly held

that an attorney may not ethically present a claim that he provided

a client with ineffective assistance of counsel. It necessarily follows

that a claim of ineffective assistance of counsel may not be pursued

unless the counsel at issue is no longer representing the defendant

                                   63
and, instead, the defendant either is represented by conflict-free

counsel or represents himself pro se.”) (citation and punctuation

omitted).

     And there’s more. When questions arise about the propriety of

counsel raising an ineffective assistance claim, the trial court can

attempt to ensure that a new lawyer—one who does not have a

conflict of interest that precludes him from asserting his own

ineffectiveness—is appointed to represent the defendant. See, e.g.,

Garland, 

. But that creates yet another issue in the

out-of-time appeal context, because our precedent squarely holds

that a motion for out-of-time appeal is a proceeding as to which a

defendant is not entitled to the appointment of counsel. See, e.g.,

Davis v. State, 

 (

) (2020) (‘“[B]ecause

a motion for an out-of-time appeal cannot be construed as part of a

criminal defendant’s first appeal of right, [the defendant] was not

entitled to the assistance of appointed counsel.’”) (quoting Pierce v.




                                 64
State, 

 (

) (2011)).19 And that leads to

the question of whether trial courts and public defenders abiding by

our precedent on a convicted defendant’s right to counsel should

appoint new counsel to handle motions for out-of-time appeal

asserting that the defendant was deprived of an appeal of right by

her prior counsel’s ineffective assistance.20 Despite this tension,

motions for out-of-time appeal appear to be granted routinely in this

situation. See, e.g., Clark v. State, 

, 566 n.1 (

) (2020) (“Clark filed a motion for an out-of-time appeal through

new counsel, which the trial court granted.”); Kidd v. State, 

 As we discuss below, a defendant also has no right to appointed counsel

in a habeas corpus proceeding. We add that in describing the current state of
the law, we do not mean to suggest that, as a matter of policy, the General
Assembly cannot or should not provide funding for lawyers to be appointed for
indigent defendants to pursue apparent violations of those defendants’
constitutional rights, even when such funding is not constitutionally required.
But policy decisions such as those must be left to the Legislative Branch, and
not made by judges.

      20  Likewise, if a new lawyer is appointed to take over a convicted
defendant’s appeal as of right and discovers that previous counsel missed the
jurisdictional deadline to file a motion for new trial or a notice of appeal, the
public defender arguably can decline to extend representation on the basis that
the defendant is not entitled to it, and the trial court would have a basis to
uphold that decision.
                                       65
543, 543 n.1 (

) (2018) (“Kidd filed another motion for an

out-of-time appeal, this time with appointed counsel.”).

     As with the other examples of unanswered questions

mentioned above, we do not know with certainty what the resolution

of these issues would be if presented properly in a case before this

Court.   But it seems likely that at some point, based on our

precedent, a trial court will dismiss a motion for out-of-time appeal

in which a lawyer asserts his own ineffectiveness, or uphold a public

defender’s decision not to appoint new counsel for a convicted

defendant whose trial counsel was constitutionally ineffective in

failing to file a notice of appeal; the defendant will appeal that

ruling; and this Court will have to decide what to do. We could apply

our precedent as it would seem to apply in other contexts, and

thereby undermine many of the benefits of the trial court out-of-time

appeal procedure on which the dissent relies heavily, or we could

endorse additional deviations from precedent to maintain what we

consider to be preferable policy results for the procedure we created.

What this Court cannot do, as long as the motion for out-of-time

                                 66
appeal procedure is maintained, is avoid making decisions about

these sorts of issues.

     The entire Court agrees that we erred, and that we overstepped

our limited constitutional role, by creating the trial court out-of-time

appeal procedure. But we cannot simply wash our hands of that

error; the need to determine the details of the procedure we created

will require us (and trial judges) to perpetually overstep our judicial

bounds. That makes our precedent unworkable, as this Court has

repeatedly held in similar situations. See Duke, 

 n.4

(that the precedent at issue was “in need of refining only emphasizes

the unworkable nature of [the precedent] as it was decided”);

Harper, 

 (prior precedent that created the motion

to vacate a criminal conviction, which was “a new post-appeal

procedure for challenging a criminal conviction, . . . proved

unworkable inasmuch as Georgia law is silent as to the procedural

framework and rules applicable to this newly created remedy,”

especially given that “[u]nlike the myriad rules governing previously

recognized and statutorily created procedures for challenging a

                                  67
criminal conviction, there are no rules or precedents guiding

individuals in the filing of, or courts in their consideration of, post-

appeal motions to vacate a criminal conviction”).

      The dissent pushes back, contending that we should not focus

only on the workability of the precedents we are considering

overruling, and that we should instead compare the workability of

the current, erroneous precedents with the workability of the

alternative: here, the statutory habeas scheme that will function as

the exclusive procedure for convicted defendants to assert the denial

of constitutional rights if the trial court out-of-time appeal procedure

is eliminated.21



      21 We note that, although this Court has never held that this type of

comparison is a required part of our stare decisis analysis, such a comparison
is not necessarily inconsistent with our usual stare decisis analysis; if we
examine the workability of one precedent, we at least implicitly comment on
the workability of its alternatives. And we have even drawn explicit
comparisons in some prior stare decisis analyses. See, e.g., Burns, 

 (“[W]e cannot say that any ‘workability’ of [the existing precedent] is
sufficient to preserve the precedent. Although [that precedent’s] bright-line
test is not ‘unworkable,’ neither is the alternative—applying the familiar and
usual rules of evidence, which trial courts routinely do every day.”); Flowers,

 (“[A]lthough the local-ordinance requirement is not unworkable,
it is not as workable as the correct rule.”); Lejeune v. McLaughlin, 

 (

) (2014) (“[T]he usual rule in habeas cases—that the

                                       68
      In that vein, the dissent compares the current out-of-time

appeal system to a world in which only habeas exists and argues

that the current out-of-time appeal system is more workable. These

arguments, many of which GACDL also highlights, can be organized

into three primary claims: (1) that the current out-of-time appeal

system is more efficient for resolving a criminal defendant’s claim

that ineffective assistance of trial counsel resulted in a loss of the

defendant’s appeal as of right; (2) it is more likely under the current

system that an indigent defendant will have access to counsel when

filing the defendant’s claim of ineffective assistance of counsel; and

(3) eliminating the out-of-time appeal procedure will result in a

significant shift in workload among government entities—especially

with respect to district attorney offices, the Attorney General’s

office, public defenders, and judges. None of those arguments is




petitioner bears the burden of proof—is more workable than the rule of Purvis
and its progeny.”); Ga. Dept. of Nat. Resources v. Ctr. for a Sustainable Coast,

 (

) (2014) (“[A] bright line rule that only the
Constitution itself or a specific waiver by the General Assembly can abrogate
sovereign immunity is more workable than IBM v. Evans’ scheme allowing
judicially created exceptions.”).
                                      69
availing.

     With respect to its first set of arguments, the dissent contends

that the out-of-time appeal procedure is more efficient because,

among other reasons, the same judge who presided over the

defendant’s trial can decide the motion for out-of-time appeal, which

in turn avoids having to transfer the record between a trial court

and a habeas court and also reduces travel costs for everyone

involved.   These practical observations may be correct, but the

differences between the Habeas Corpus Act and our out-of-time

appeal procedural vehicle reflect policy choices the General

Assembly made in enacting the former. To the extent the Habeas

Corpus Act can or should be improved to make post-conviction

proceedings more efficient, or a trial court out-of-time appeal process

for certain cases should be established, the General Assembly can

make those changes legislatively.         See Duke, 

(recognizing that if “the General Assembly determines that the

established framework does not adequately safeguard the interests

of litigants in particular classes of cases, it is for that body to change

                                   70
it”). Cf. OCGA § 9-14-43 (amending the Habeas Corpus Act in 2004

to require petitioners not in custody or in federal or foreign custody

to file habeas petitions in the superior court of the county in which

they were convicted).

      The dissent similarly argues that the trial court out-of-time

appeal procedure is faster than habeas—particularly when counsel

has missed a jurisdictional filing deadline by only a few days or

weeks, the parties involved in the case are willing to consent to an

out-of-time appeal, and the defendant is able to proceed to her

motion for new trial or appeal as of right expeditiously.22 That, too,

may be true, although—as discussed above—it appears to be

inconsistent with our precedent on counsel raising her own alleged

ineffectiveness.     But putting aside the anomaly of trial courts

permitting counsel to raise their own ineffective assistance against



      22 We note that, to the extent that the filing deadline is missed by a short

period of time and the term of court in which the judgment of conviction was
entered still has not expired, the trial court may set aside and reenter the
judgment to allow a timely post-trial motion or appeal to be filed. See Gray,

. The availability of this historical practice, which is rooted in
the common law, should alleviate some of the dissent’s concern about
ineffective counsel missing jurisdictional deadlines by just a few days or weeks.
                                       71
themselves, there are also many instances in which out-of-time

appeals are sought in trial courts not to quickly correct oversights,

but rather to appeal years- or decades-old convictions. See, e.g.,

Collier, 

 (“[S]ome of our out-of-time appeal cases have

involved long delays after conviction.”); 

 at 374 n.14 (citing two

cases where the lapses of time were 15 and 26 years); Sims v. State,

 (

) (2021) (“[A]lmost seven years later,

Sims filed a pro se motion for an out-of-time appeal.”); Harvey, 

 (“Around 15 years later, Harvey filed a motion for an out-

of-time appeal through new counsel.”); Davis, 

 (“Davis

filed a pro se motion for an out-of-time appeal” over 20 years after

his conviction). These cases not only ignore the statutory time limits

the Habeas Corpus Act imposes on the ability to seek the same relief

in habeas—a legislative choice the General Assembly made to

promote the finality of convictions; they also raise additional

logistical concerns, such as the availability of witnesses and

evidence to resolve the ineffective-assistance-of-counsel claim

underlying the motion.      See, e.g., Schoicket, 

                                 72
(Ellington, J., dissenting in part) (acknowledging the State’s delay-

related concerns such as “lost or destroyed records and dead or

forgetful witnesses” in the context of motions to withdraw guilty

pleas being filed pursuant to granted out-of-time appeals); Collier,

 (“[E]liminating post-conviction delay before appeal is

an important interest in our criminal justice system.”).

     The dissent also contends that defendants often have more

“access to counsel” in the trial court out-of-time appeal procedure

than they do in habeas. But that concern is largely undermined by

the dissent’s acknowledgment that indigent defendants do not have

a right to counsel in either scenario. See Davis, 

(“‘Because a motion for an out-of-time appeal cannot be construed as

part of a criminal defendant’s first appeal of right, defendant was

not entitled to the assistance of appointed counsel.’”) (quoting Pierce,

) (punctuation omitted); Gibson v. Turpin, 

 (

) (1999) (“It is well settled that there is no

federal or state constitutional right to appointed counsel in Georgia



                                  73
habeas corpus proceedings.”).23 Indeed, the dissent’s contention that

indigent defendants, “as a practical matter,” have counsel more

frequently in the trial court out-of-time appeal procedure than in

habeas “when a motion is filed to correct a missed deadline” seems

to be a veiled reference to the issues we have discussed above:

counsel asserting claims of ineffective assistance against themselves

or being appointed in proceedings where the defendants have no

entitlement to appointed counsel.                These practices may be

challenged now that they have been highlighted.

      Finally, the dissent expresses concern that eliminating the

alternative trial court out-of-time appeal procedure and relying

exclusively on habeas corpus would necessitate a significant shift in



      23 We share the dissent’s concern that, if motions for out-of-time appeals

are eliminated in trial courts, some pro se defendants—or even attorneys who
are familiar with the trial court out-of-time appeal procedure—may not
initially appreciate the risk of waivers and bars to successive habeas claims
they may face if they file a habeas petition that complains only of the ineffective
assistance of counsel that resulted in the defendant’s frustrated appeal, rather
than all of the defendant’s constitutional claims. But the requirements of
habeas corpus are well established, both in statute and in case law interpreting
it, so it rings hollow to suggest that being required to use the exclusive
statutory remedy that the General Assembly established decades ago is
somehow a trap for the unwary.
                                        74
resources within the criminal justice system. The dissent notes, for

example, that motions for out-of-time appeals that are typically

heard by trial courts and handled by attorneys from district attorney

offices would instead be heard by habeas courts and handled by

attorneys from the Attorney General’s office, and projects that those

changes will result in staffing and workload (and thus financial)

implications.

     We are certainly mindful of the resources required for

government entities—including courts—to get their work done. But

resource considerations such as these must be directed to the

General    Assembly,     whose     constitutional   duty    includes

appropriating funds for the operations of our State’s government.

See Ga. Const. of 1983, Art. III, Sec. IX, Pars. II, III. See also

Schoicket, 

 (Ellington, J., dissenting in part) (“The

General Assembly is fully capable of resolving how to allocate funds

to make the system work. Indeed, the General Assembly would be

freed from having to appropriate, in addition to funds to make the

post-conviction system work as it intended when it adopted the

                                 75
Habeas Corpus Act over 50 years ago, additional substantial funds

to make our judicially-created parallel system work.”) (emphasis in

original).    Moreover, representatives of two of the primary

stakeholders who would be affected by any anticipated shift in

workload—the Attorney General and the District Attorney—have

asked this Court to overrule our trial court out-of-time appeal

precedents,   specifically   arguing    that   those   precedents   are

unworkable.     We should credit the views of the constitutional

officers who have responsibility for both the trial court and habeas

out-of-time appeal processes over our own views of their abilities to

discharge their duties in a world where motions for out-of-time

appeals in trial courts do not exist.

     The dissent greatly underestimates the unworkability of the

current trial court out-of-time appeal procedure while overvaluing

its own speculation about the disruption to the legal system that will

ensue if motions for out-of-time appeals in trial courts are

eliminated.   The workability factor therefore weighs in favor of

overturning our trial court out-of-time appeal precedents, and for

                                  76
doing so now.

     (e) We Overrule our Precedents and Eliminate the Judicially
Created Motion for Out-of-Time Appeal Procedure in Trial Courts

     In light of the analysis conducted above, we conclude that stare

decisis does not preclude overruling our precedents that created or

endorsed the trial court out-of-time appeal procedural vehicle.

Accordingly, we overrule Rowland v. State, 

(

) (1995), and any other decisions that approved the

judicially created motion for out-of-time appeal in trial courts, to the

extent that they endorsed this procedure. We also disapprove King

v. State, 

 (

) (1975), Furgerson v. State,

 (

) (1975), and any other decisions that

have allowed out-of-time appeal claims to be litigated in trial courts

without addressing the propriety of that procedure. We note that in

overruling and disapproving these cases, we do not undo what has

been done with respect to out-of-time appeals that already have been

granted where the ensuing appeal has concluded. And that

important point leads us to an analysis of how today’s holding


                                  77
applies to this case and others going forward.

     4. Our Holding Applies to this Case, Cases in the Appellate
“Pipeline,” and Future Cases

      Amicus curiae GACDL contends that if this Court concludes it

must eliminate out-of-time appeal motions in trial courts, it should

announce its intention to do so “well ahead of the change” and “set

a date certain after which no motion for out-of-time appeal may be

filed.” In short, GACDL asks us to apply any new rule we announce

prospectively.24 But we decline that proposal because prospective

application would run afoul of the “pipeline” approach Georgia has

long followed for the application of new rules of criminal procedure

to criminal cases that are pending on direct review or not yet final.

      In Taylor v. State, 

 (

) (1992), this

Court held that

      [i]n order to ensure that similarly situated defendants are

      24 To support its request, GACDL cites only Davenport v. State, 

 (

) (2020). But our decision in Davenport pertained to this
Court’s decision to change a court practice—sua sponte review of evidentiary
sufficiency in murder appeals—and did not endorse or otherwise authorize
limiting this Court’s holdings in criminal cases to prospective application. See

                                      78
      treated similarly and to maintain the integrity of the
      judicial process while still providing finality, . . . it [is] . . .
      appropriate to adopt the “pipeline” approach, that is, that
      a new [state] rule of criminal procedure . . . will be applied
      to all cases then on direct review or not yet final.

.25     We have consistently recognized or followed this

holding regardless of whether the judicial decision setting forth a

new state rule of criminal procedure was based on a statute or on

decisional law. See, e.g., Mobley v. State, 

 (

) (1995); Smith v. State, 

 (

) (1997);

Smith v. State, 

, 861 & n.10 (

) (1998);

Harris v. State, 

 (

) (2001); Green v.

State, 

 (

) (2005); Stubbs, 

 We note that a different rule applies to cases in habeas corpus.     See
Harris v. State, 

 (

) (2001) (clarifying that a new
state rule of criminal procedure “w[ould] not be applied to convictions
challenged on habeas corpus”); Chatman v. Brown, 

 (

) (2012); Turpin v. Todd, 

 (

) (1997). We
also note that the Georgia rule regarding retroactive application of new
holdings in civil cases is less settled. Compare Findley v. Findley, 

 (

) (2006) (“[W]e decline to adopt a rule of universal
retroactivity in all civil cases.”) with Atlanta Oculoplastic Surgery, P.C. v.
Nestlehutt, 

 (

) (2010) (Nahmias, J.,
concurring specially, joined by Carley, P. J., and Hines, J.).

                                       79
362 n.11.26

      Neither Cook nor GACDL argues that we should overrule

Taylor and its progeny, let alone engages in a stare decisis analysis

of that precedent. Indeed, neither Cook nor GACDL argues that our

holding in this case is somehow not the sort of judicial decision that

is governed by Taylor or offers a compelling reason to reconsider

Taylor or its progeny. See Collins v. State, 

 (

) (2021) (appellant “does not offer any compelling reason to

abandon precedent that has been a settled part of our law for 35

years, is straightforward in its application, and [is] not obviously

unsound”).     We therefore decline the invitation to apply today’s

holding only prospectively. Instead, pending and future motions for



      26 A recent case provides another good example: in Seals v. State, we held

that a trial court’s dead-docketing a count of an indictment left that count
“pending in the court below” for purposes of OCGA § 5-6-34 (a) (1), thus
preventing an appeal of the case unless the defendant followed interlocutory
appeal procedures. See Seals, 

. That holding was applied to
Seals’s case, and we immediately began applying it to dismiss criminal appeals
that were filed in our Court when one or more of the counts in the case had
been dead-docketed—even when the notice of appeal in the case was filed
before Seals was decided. See, e.g., Favors v. State, S21A0328 (June 29, 2021);
Scott v. State, S21A0507 (June 29, 2021); Drennon v. State, S21A1139 (Aug. 6,
2021).
                                      80
out-of-time appeals in trial courts should be dismissed, and trial

court orders that have decided such motions on the merits—like the

one in this case—should be vacated if direct review of the case

remains pending or if the case is otherwise not final. See Brooks v.

State, 

 (

) (2017) (“Because the trial court

decided the merits of a motion it lacked jurisdiction to decide, we

vacate the trial court’s order and remand with instructions to

dismiss.”).

     5. Conclusion

     We are faced with two choices in this case: We can overrule our

trial court out-of-time appeal precedents, return to the habeas

corpus process the General Assembly established for seeking post-

conviction relief of this sort, and—to the extent that procedure is

problematic—allow the General Assembly to fix any flaws by

statute.   Or we can retain our erroneous trial court out-of-time

appeal precedents, maintain an alternative procedure for obtaining

post-conviction relief for this one type of constitutional claim, and

perpetuate our roles of judges-as-legislators who must continue to

                                 81
establish by judicial opinion the rules for the procedural vehicle we

created. In light of the analysis conducted above, we choose the

former.

     We hold that there was and is no legal authority for motions

for out-of-time appeal in trial courts and that the out-of-time appeal

procedure allowed in King and Furgerson, approved in Rowland,

and followed in other cases, is not a legally cognizable vehicle for a

convicted defendant to seek relief for alleged constitutional

violations. Our holding applies to this case and to all cases that are

currently on direct review or otherwise not yet final.

     Accordingly, the trial court was without jurisdiction to decide

Cook’s motion for out-of-time appeal in this case, and “because the

trial court’s order plainly shows that it denied” the motion “on the

merits,” Bonner v. State, 

 (

) (2020),

the trial court’s order must be vacated and the case remanded to the

trial court with direction that the motion be dismissed.          See

McDaniel, 

 (“[W]hen a trial court is presented with a

motion that it lacks jurisdiction to decide and denies the motion

                                 82
solely on the merits, we vacate the trial court’s order and remand

with instructions to dismiss the motion.”); Brooks, 

.

Cook’s remedy, if any, lies in habeas corpus.

      Judgment vacated and case remanded with direction. All the
Justices concur, except Boggs, P. J., who concurs specially in Division
3 (c) and (d), and Peterson, Bethel, and Ellington, JJ., who dissent.




                                  83
                   S21A1270. COOK v. THE STATE.


      LAGRUA, Justice, concurring.

      I write separately to emphasize that this matter presents a

challenging question of law with a fairly straightforward answer.

The question is whether a criminal defendant, who has alleged that

she has been deprived of an appeal of right due to ineffective

assistance of counsel, may seek an out-of-time appeal as her remedy

in the trial court instead of pursuing her remedy through habeas.

The answer is no.

      The majority opinion and the dissent agree that this Court’s

creation of the out-of-time appeal procedural vehicle in the trial

court was unsupported by sound reasoning or relevant authority.27

Where we part ways is on the question of whether stare decisis



      27 In addition, as noted by the majority opinion:

      [A]n unusual aspect of this case is that neither the State nor any
      of the amici curiae—which represent the views of both prosecutors
      (PAC) and criminal defense lawyers (GACDL)—contends that our
      judicial decisions creating or endorsing the trial court out-of-time
      appeal procedural vehicle are supported by sound reasoning or
      relevant authority.
Maj. Op., p. 488.
                                      84
favors the retention of the out-of-time appeal procedure in the trial

court, and I concur with the majority opinion that it does not.

     Under the doctrine of stare decisis, “courts generally stand by

their prior decisions, because it promotes the evenhanded,

predictable, and consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” Pounds v. State, 

 (3) (

) (2020) (citation and punctuation omitted).

“Nevertheless, when governing decisions are unworkable or are

badly reasoned, this Court has never felt constrained to follow

precedent. Stare decisis is not an inexorable command; rather, it is

a principle of policy and not a mechanical formula of adherence to

the latest decision.” Woodard v. State, 

 (3) (b) (

) (2015) (citation and punctuation omitted). As explained

in the majority opinion, the stare decisis factors include: (1) the

soundness of our precedents, which we all agree are entirely

unsound; (2) the age of the precedents, which are not especially old;

(3) the reliance interests involved, including that our precedents

                                 85
have established a procedural right rather than a substantive one;

and (4) the workability of the procedure, including that the

parameters of the procedure need continual judicial revision. I agree

with the majority opinion that these factors do not weigh in favor of

keeping a procedure that we “created out of whole cloth” and which

helped lead to “a tangled mess of post-conviction jurisprudence.”

Collier v. State, 

 (

) (2019) (Peterson,

J., concurring specially).

     As this Court initially held correctly in Neal v. State, 

 (

) (1974), in the Habeas Corpus Act of 1967, the

General Assembly established habeas corpus as the procedure for a

criminal defendant who alleges that she was deprived of her right to

appeal because of her counsel’s alleged ineffective assistance. And

“it is not the job of judges to usurp that [legislative] power . . . by

rewriting laws enacted by the people’s democratically elected

representatives.” Barrow v. Raffensperger, 

 (

) (2020) (Melton, C. J., concurring). Accordingly, I agree

with the majority opinion that Cook’s remedy, if any, lies in habeas

                                  86
corpus. If the General Assembly takes issue with the exclusiveness

of the procedure it has created, it is incumbent upon the legislature

to fashion a new procedure.

     I am authorized to state that Justice McMillian joins in this

concurrence.




                                 87
     BOGGS, Presiding Justice, concurring specially in part.

     I agree with most of what is said in the majority opinion and

concur fully in the judgment and in Divisions 1, 2, 3 (a), (b), and (e),

4, and 5. I do not necessarily agree with all that is said in Division 3

(c) and 3 (d), however, so I concur specially in those parts of the

opinion.




                                  88
     PETERSON, Justice, dissenting.

     The majority today overrules decades of non-constitutional

precedent recognizing a trial court power that is entrenched within

our system, it does so without a clear sense of the likely

consequences, and it does so while overreading some of our

precedents in a way that would prohibit the General Assembly from

fixing at least some adverse consequences. If stare decisis means

anything, it should preserve longstanding and oft-applied non-

constitutional precedent at least until we know the effect of

overruling. I respectfully dissent from the majority’s refusal to wait

for that day.

     As an initial matter, I should note that I agree with much of

the majority’s opinion. I agree that our approval of the motion for

out-of-time appeal happened without analysis or the articulation of

a proper legal basis. I don’t dispute that we held in Neal v. State,

 (

) (1974), that the habeas statute provided

the exclusive remedy for claims that a right to appeal was frustrated



                                 89
by ineffective assistance of counsel.28 I agree that the motion for out-

of-time appeal has contributed to the complexities of our tangled

mess of a post-conviction litigation process. And I agree that we did

something we should not have nearly 50 years ago when we ignored

our decision in Neal in acknowledging a stand-alone motion for out-

of-time appeal. Indeed, I’ve already said as much. See Schoicket v.

State, 

 (

) (2021); Collier v. State, 

 (

) (2019) (Peterson, J., concurring

specially).

      But concluding that our decades-old precedent was misguided




      28 Whether Neal was rightly decided is a closer question. Neal did no

statutory construction in support of its holding that the habeas corpus statute
precludes a motion for out-of-time appeal in the trial court, and the habeas
statute itself contains no text supporting such a proposition. The closest the
statute gets is a provision that states that “this article provides the exclusive
procedure for seeking a writ of habeas corpus for persons whose liberty is being
restrained by virtue of a sentence imposed against them by a state court of
record,” OCGA § 9-14-41 (emphasis added). Neal did not identify the similar
text in effect at the time as supporting its conclusion, and a motion for out-of-
time appeal does not seek a writ of habeas corpus. And the only other cases the
majority cites for this proposition, State v. Smith, 

 (

)
(2002) and Mitchum v. State, 

 (

) (2019), hold only that
habeas is the exclusive remedy for post-appeal ineffectiveness claims. Of
course, the whole point of an out-of-time appeal motion is that the defendant
has not yet had her appeal.
                                       90
is not sufficient to reject it. Given the importance of stare decisis, I

cannot join the majority in ripping the motion for out-of-time appeal

out of our post-conviction system’s “tangled mess.” Collier, 

) (Peterson, J., concurring specially). In a footnote in

Schoicket, I observed that such a step might be appropriate. See 312

Ga. at 830 (1) n.6. But the extensive briefing and argument in this

case has convinced me otherwise. The motion for out-of-time appeal

is more entrenched in our legal system than I had realized, and the

policy implications of reversing course now are beyond our Court’s

ability even to understand fully today, much less solve. The majority

dismisses my discussion of those implications as speculative. I

agree; neither I nor the majority has a full sense of the effect of

reversing course, and so speculation is the best we can do. But

respectfully, the majority’s response does not help its case; we

shouldn’t overrule decades of precedent without more than

speculation about the effects of such a move. In my view, stare

decisis exists for cases like this one, and I would retain our incorrect

precedent as the lesser of two evils.

                                  91
     1.     Stare decisis is a question of judicial policy, not an
objective formula.

     Whether stare decisis should preserve a legally incorrect

precedent is a question of policy, not of law. See State v. Jackson,

 (5) (

) (2010) (“[S]tare decisis is not an

inexorable command, nor a mechanical formula of adherence to the

latest decision. Stare decisis is instead a principle of policy.” (citation

and punctuation omitted)). That policy question weighs the value of

having an issue decided against the value of deciding it right. Almost

always, questions of policy are for the other two branches of

government. But stare decisis is that rare kind of policy that — since

the very beginning of our Court — we have consistently understood

to be within the judicial power to apply. See, e.g., Leary v. Durham,

 (1848) (observing in case involving property rights

that “where a rule of law has been firmly established for half a

century[ ] at least, though originally, perhaps, on mistaken or

erroneous principles, and no greater evil is to be apprehended from

an adherence to it, than may be expected from a departure from it,

that stare decisis ought to be our motto”).
                                    92
     Questions of policy often leave more room for disagreement

than questions of law. There are only so many possible meanings

legal text can have, and one meaning is almost always objectively

more correct than the other possibilities. But there are many

different ways to approach the kinds of policy questions that stare

decisis presents. And so it is here. That the members of this Court

disagree over whether to retain our prior precedent creating motions

for out-of-time appeals does not mean that some of us are applying

the law unfaithfully. It simply means that, in our reasoned exercise

of prudential judgment, we arrive at different conclusions.

     Understanding stare decisis as a matter of judicial policy, our

primary precedent setting the framework for deciding questions of

stare decisis does not limit us to an exhaustive list of factors to

consider. Rather, we have framed this as a balancing of

considerations in which we consider factors “such as” — not limited

to — “the age of the precedent, the reliance interests at stake, the

workability of the decision, and, most importantly, the soundness of

its reasoning.” Jackson, 

 (5). The United States

                                 93
Supreme Court precedent on which our framework is based is

consistent with that understanding. See Montejo v. Louisiana, 

 (

, 173 LE2d 955) (2009) (noting

relevant factors “include” age, reliance interests, soundness of

precedent, and workability before weighing the “marginal benefits”

of the prior rule “against its substantial costs” to conclude that it

“does not pay its way” (citation and punctuation omitted)).

     Apart from the four factors identified in Jackson, we have

identified other considerations that are quite germane to the

question before us in this case. We have made clear that stare decisis

applies with greater force to statutory precedents than to

constitutional precedents, as it is more difficult for the legislature to

undo a constitutional decision. Compare, e.g., Abernathy v. City of

Albany, 

 (

) (1998) (“Even those who regard

‘stare decisis’ with something less than enthusiasm recognize that

the principle has even greater weight where the precedent relates to

interpretation of a statute.” (citation and punctuation omitted)),

with Olevik v. State, 

 (2) (c) (iv) (

)

                                   94
(2017) (“[S]tare decisis carries less weight when our prior precedent

involved the interpretation of the Constitution, which is more

difficult than statutory interpretation for the legislative process to

correct. This doesn’t mean that we disregard stare decisis

altogether, though; what it actually means is that the first stare

decisis factor (soundness of reasoning) becomes even more critical.

The more wrong a prior precedent got the Constitution, the less

room there is for the other factors to preserve it.” (citation omitted)).

     Another important consideration in determining whether to

retain prior precedent is the extent to which it has become

entrenched in the legal system — meaning, in a narrow sense, that

its relevant holding has been applied frequently. See, e.g., Frett v.

State Farm Employee Workers’ Compensation, 

 (3) (c)

(

) (2020) (considering the extent to which a precedent

is “entrenched” in our jurisprudence by examining how often and

how recently it has been cited, particularly for its relevant holdings).

Although this concept of entrenchment can include the age of the

precedent, the extent to which others have relied on it, and its

                                   95
workability, it is not limited to those categories. Understanding

entrenchment more broadly, it is important that we consider

potential disruption to the legal system that might be caused by

suddenly jettisoning a particular precedent. The majority criticizes

me for focusing too much on this idea. But there’s little else

warranting much attention. We don’t particularly disagree on the

correctness of the creation of the motion for out-of-time appeal. And

the other Jackson factors either aren’t terribly meaningful (age),29

or are encompassed within my treatment of entrenchment (reliance

and workability).

      2.    In my view, stare decisis counsels that we retain our


      29 Indeed, once we’ve determined that a decision was unsound, the other

Jackson factors never seem to be particularly meaningful. Since 2010, our
Court has tended to recite the Jackson “four-factor test” consistently, and just
as consistently overrule precedent after woodenly ticking through those
factors. See, e.g., Frett, 309 Ga. at 63-64 (Peterson, J., dissenting) (noting that
every time an opinion explicitly applied the Jackson test even as to statutory
precedent, we overruled the precedent). The majority responds by reiterating
the Frett majority’s response: it’s “unsurprising” that the Court does extensive
analysis of stare decisis “mostly” in cases where the Court overrules precedent.
The word “mostly” is critical to that argument, and it is wrong. The Court
doesn’t do stare decisis analysis “mostly” in cases overruling precedent, it does
stare decisis analysis exclusively in cases overruling precedent. The majority
does not identify a single case in which we have concluded a precedent of ours
was unsound, but nevertheless determined that stare decisis warranted
retaining that precedent.
                                        96
current rule allowing trial courts to consider motions for out-of-time
appeal.

     Here, we are dealing with the sort of non-constitutional

precedent to which stare decisis applies more strongly. The

precedent at issue here is of the sort that the General Assembly

might easily alter or eliminate, and thus eliminating that precedent

ourselves should give us greater pause. Although the majority

opinion posits that stare decisis applies with less force here because

Rowland v. State, 

 (

) (1995), and its pre-

Collier progeny ignored the relevant statutory text, I’ve already

explained that Neal did not engage with the text of the habeas

statute, either.

     As noted above, I don’t dispute Neal’s holding. But the majority

opinion’s focus on the soundness of the reasoning (or lack thereof) in

the decisions that subsequently deviated from that holding, while

important, is only the beginning of the application of stare decisis.

“[S]tare decisis does not even begin to apply until we doubt the

correctness of a previous precedent.” Frett, 309 Ga. at 65 (Peterson,

J., dissenting). If we believe a precedent to be correct, we simply
                                 97
apply it and stop there. But if we doubt the correctness of the

precedent, we do not simply overrule that precedent without

consideration of other factors. “[I]f stare decisis is to mean

something, we need more than that to overrule a statutory

precedent.” Id.

     (a) The motion for out-of-time appeal plays a significant role
in our legal system.

     Turning to those other considerations, they include the extent

to which the precedent has become entrenched in our legal system.

And here, nearly 50 years after it first appeared in our case law, the

motion for out-of-time appeal has become deeply entrenched, at least

in the senses that (1) it is regularly applied in a significant number

of cases and (2) when it is applied, it often makes a substantial

difference — when the motion is granted, it permits an appeal that

would otherwise be barred without the years-long delay of habeas.

Thus, although I suggested otherwise in Schoicket, the briefing and

argument in this case has convinced me that jettisoning our

precedent here could be enormously disruptive.

     Undoubtedly, our precedent allowing out-of-time appeals
                                 98
affects a significant number of cases. This Court entertained appeals

of murder convictions enabled by granted motions for out-of-time

appeals at least 14 times last year alone.30 A similar number for the

Court of Appeals is not readily ascertainable; that court does not

systematically report the procedural history of each criminal case it

decides in the same way that we do in our murder cases (or, for that

matter, publish all of its opinions as we do). But if a similar

proportion of their criminal appeals arise from granted motions for

out-of-time appeal (as seems reasonable to suppose), the true annual




      30  It is our practice in direct murder appeals to include the case’s
procedural history in our opinion’s first footnote. At least 14 such footnotes in
2021 indicated a granted motion for out-of-time appeal. See Williams v. State,

, 386 n.1 (

) (2021); Baker v. State, 

, 363 n.1
(

) (2021); Walker v. State, 

, 332 n.1 (

)
(2021); Thompson v. State, 

, 254 n.1 (

) (2021); Walker
v. State, 

, 232 n.1 (

) (2021); Williams v. State, 

, 195 n.1 (

) (2021); Sullivan v. State, 

, 835 n.1 (

) (2021); Holmes v. State, 

, 698 n.1 (

) (2021);
Rogers v. State, 

, 634 n.1 (

) (2021); Felts v. State, 

, 547 n.1 (

) (2021); Waller v. State, 

, 518 n.1
(

) (2021); Abbott v. State, 

, 478 n.1 (

)
(2021); Thomas v. State, 

, 280 n.1 (

) (2021); Kirkland
v. State, 

, 738 n.1 (

) (2021). We do not generally
include such a footnote in other criminal cases, and so this list of 14 may be
underinclusive for 2021.

                                       99
number of such appeals may well be between 50 and 100 per year,31

and even more in years of heavier caseloads.32 And even denied

motions for out-of-time appeal (which may not always themselves be

appealed) would first have resulted in full habeas proceedings under

the Court’s holding today.

     The majority opinion first responds by dismissing the

significance of these cases on the basis that they are not “precedent”

for stare decisis purposes because they did not decide whether the

existence of a motion for out-of-time appeal was appropriate. But

that misunderstands the nature of precedent for these purposes. At

least by the time of our 1995 decision in Rowland, our precedent

definitively established that motions for out-of-time appeal are



     31 During 2021, we disposed of 304 direct appeals. All of our murder

appeals would have been contained within that number and typically make up
a substantial majority of our direct appeals; this suggests that we perhaps
disposed of 200 to 250 murder appeals during 2021. During the same period,
the Court of Appeals disposed of 804 criminal appeals.
      32 And this number does not even include the dozens of unpublished

orders we have issued over the years dismissing appeals for untimeliness and
citing Rowland for the proposition that the appellant may be able to file a
motion for out-of-time appeal if the untimeliness was a result of counsel’s
ineffective assistance.

                                    100
proper. The 14 cases from last year in which our opinions noted that

motions had been granted thus represent faithful application of that

precedent and thus are precedent themselves for the purpose of

considering the extent of the entrenchment of the precedent in

question today.33

     (b) Shifting all out-of-time appeals to habeas will have
significant negative effects.

      The majority’s argument that the long delays of habeas are not

meaningful because some motions for out-of-time appeal are filed

years or decades later is unavailing. Long-belated motions are a

problem (although, as the majority would presumably agree, not one

beyond the power of the General Assembly to end). But they seem

relatively rare; the majority cites only a handful. Most of the motions

that the majority consigns to the often years-long delays of habeas

are far more frequently filed shortly after deadlines are missed. In

the vast majority of the 14 cases we considered last year from the



      33 The application of a case’s well-settled holding does not require citing

that case or discussing its analysis. At the very least, every case post-Rowland
that has granted or denied on the merits a motion for out-of-time appeal has
applied Rowland’s holding, whether or not it cites it.
                                      101
grant of a motion for out-of-time appeal, the motion was filed less

than one year after the notice of appeal was due — indeed, often

considerably less than that, indicating that the issue was one of

attorney oversight rather than an attempt to attack an old

conviction. In one case, the notice of appeal had been filed a mere six

days late. See Abbott v. State, 

, 478 n.1 (

)

(2021). In another, the issue was the trial court’s failure to formally

vacate an initial order denying a motion for new trial in ruling on a

second amended motion. See Walker v. State, 

, 332 n.1

(

) (2021).

     Particularly in those sorts of cases, where the only issue is

whether counsel failed to file timely, allowing post-conviction

proceedings to be resolved by granting a motion for out-of-time

appeal in the trial court is much more efficient than requiring a

convicted defendant to turn to the much lengthier habeas process.

Granting a motion for out-of-time appeal allows the claims to be

resolved promptly by the judge who presided over the trial. It avoids

the need for an inmate to grapple with the procedural hurdles of

                                 102
filing a habeas petition, avoids the need to transfer records between

jurisdictions, and reduces travel costs for lawyers and prisoners.

And the speed of this process is particularly important when this

Court — as a matter of policy — has sought to prevent delays in the

resolution of post-conviction proceedings. See Owens v. State, 

 (4) (

) (2018) (directing the Council of

Superior Court Judges to propose a rule to reduce post-conviction

delays). Although the majority says that a convicted defendant can

obtain the same result by filing in habeas, a grant of relief after

years of additional litigation is not obviously the same as a grant of

relief that is secured promptly.

     The majority responds that the strictures of habeas “reflect

policy choices the General Assembly made.” But some of the most

important strictures were not in place when we created the out-of-

time appeal vehicle. It was not until 2004 that the General Assembly

imposed a limitations period for seeking habeas corpus relief from




                                   103
felony convictions. See Ga. L. 2004, pp. 917-918, § 1.34 And it was

only that same year that the General Assembly provided that laches

may be a basis for dismissal. See id., § 3. We presume that the

General Assembly was aware of the availability of motions for out-

of-time appeal and chose not to apply limitations periods or laches

to them when it enacted these modifications to habeas.35 See Grange

Mutual Casualty Co. v. Woodard, 

 (2) (a) (

) (2017) (“[A]ll statutes are presumed to be enacted by the

legislature with full knowledge of the existing condition of the law

and with reference to it.” (citation and punctuation omitted)).



      34 I thank the Georgia Association of Criminal Defense Lawyers for its

excellent amicus brief bringing this point to my attention. That brief also
suggests that a 1986 amendment to a Title 40 statute applied limitations to
seeking habeas relief from certain traffic convictions. See Ga. L. 1986, p. 444,
§ 1. The actual effect of the 1986 provision is not entirely clear, but even if it
did create a limitation on habeas petitions, it did so only for certain traffic
offenses.
      35 The majority interprets this point as though I’m arguing that Collier

was wrongly decided in authorizing a possible defense of prejudicial delay. This
dissent expresses no opinion on that point. I merely point out that the General
Assembly apparently did not share the majority’s policy concerns when that
body enacted a limitations period and laches for habeas and chose not to extend
those provisions to motions for out-of-time appeal, which had existed for
decades before the General Assembly’s 2004 legislation. Nothing in Collier held
otherwise.

                                       104
      Another significant effect on the criminal justice system is the

workload impact shifting all these cases to habeas would have, both

in terms of shifting court and counsel, and in terms of likely

resulting in fewer state concessions. The current process spreads the

obligation for handling such matters across all of the state’s district

attorneys and judges, rather than concentrating the burden on a few

judges in counties with prisons and shifting all prosecutorial

responsibilities to the Office of the Attorney General.36 During 2021,

we had 174 certificates of probable cause filed in our Court, seeking

to initiate an appeal from the denial of a habeas petition, which

suggests that the total number of habeas petitions resolved by

superior courts during that time frame is unlikely to have been

much more than 200. If we were to add 50 to 100 additional habeas


      36 Although   this could eventually be rectified in part by the General
Assembly’s reallocation of appropriations, this is easier said than done. For one
thing, it’s doubtful that any particular district attorney would be relieved of
enough such motions to warrant reducing staff. At the same time,
concentrating all of the cases in the AG’s office as habeas petitions may well
result in a substantial increase in hourly fees paid to special assistant
attorneys general contracted to defend convictions against habeas petitions.
This is particularly likely because habeas petitions generally require more
litigation than a motion, such that the change worked by the Court today likely
will result in more work, not just shifting the work to different personnel.
                                      105
petitions per year — as the majority today may well do, although we

can’t be sure — that could represent an increase in habeas caseloads

of 25 to 50 percent, while concentrating those cases among the

relatively few superior court judges who sit in circuits with prisons.

Although the majority argues that we should “credit” the

assessment of the Attorney General and the District Attorney who

have asked this Court to overrule its out-of-time appeal precedents,

neither of those constitutional officers has addressed the question of

resources in their briefs in this case. And the largest resource impact

would be on a small group of trial court judges, who are scarcely able

to weigh in.

     Moreover, our precedent reveals anecdotally that the State

often agrees that the trial court should grant a motion for out-of-

time appeal, limiting the amount of litigation required to resolve

such an issue. But it’s one thing for the trial prosecutor — familiar

with the case and defense counsel — to agree that ineffective

assistance likely occurred and should be remedied. It’s another thing

altogether for the State’s habeas counsel — likely unfamiliar with

                                 106
the case, defense counsel, and the trial court — to do so; more

meritorious motions would likely have to be litigated fully before

relief could be granted.

      And finally, our prior approach often had the effect of affording

indigent defendants access to counsel for their motion for out-of-time

appeal,37 something that will be — at best — less certain if we

suddenly require inmates to turn to habeas. See Gibson v. Turpin,

 (1) (

) (1999).38 Moreover, they

won’t be able to bring only their claim regarding a frustrated appeal

without seriously risking waiving all other habeas-eligible claims.



      37 The majority responds that indigent defendants do not have a right to

counsel for a motion for out-of-time appeal. But although I agree that indigent
defendants do not have a right of appointed counsel for such a motion, as a
practical matter they often in fact have such counsel when a motion is filed to
correct a missed deadline. The majority’s observation that a public defender
can decline to represent a defendant who is not entitled to representation is
not responsive to this point.
      38 I note that today’s step of entirely eliminating motions for out-of-time

appeal as a procedure to remedy the frustration of a defendant’s right to appeal
makes all the more relevant and timely Justice Ellington’s previous suggestion
that the superior court rules be amended to ensure that plea colloquies more
thoroughly inform defendants of their rights to withdraw their plea and appeal
their conviction. See Schoicket, 

 (Ellington, J., dissenting in
part); see also 

 (1) n.10 (majority opinion noting that Justice
Ellington’s “thoughtful suggestion” merited consideration).

                                      107
See, e.g., Williamson v. State, 

 (4) (

)

(2019) (“Any claim of ineffectiveness of counsel must be made at the

earliest practicable moment.”).39 And now they will likely need to do

so pro se, without having had a hearing on a motion for new trial

and without a right to access the record of their trial without first

explaining why they need it. See Rutledge v. State, 

(3) (

) (2020) (explaining that “after the time for appeal

has expired there is no due process or equal protection right to a free

copy of one’s court records absent a showing of necessity or

justification” (citation and punctuation omitted)). The Court’s

decision today puts a defendant whose attorney missed the deadline

for filing a notice of appeal in a very difficult position.

      (c) Neither lawyer ethical rules nor our decisions interpreting
them are cause to abandon our precedent allowing motions for out-
of-time appeals.


      39 On the other hand, the rule that ineffectiveness claims must be raised

at the earliest practicable moment appears to be another rule that we have
created without a basis in any statutory authority. See Smith v. State, 

 (3) (

) (1986) (“It is a requisite of a sound system of criminal
justice, serving alike the proper ends of defendants and of the public, that any
contention concerning the violation of the constitutional right of counsel should
be made at the earliest practicable moment.”). Under the majority’s approach
to stare decisis, the fate of that rule is uncertain as well.
                                       108
     The majority responds to much of this by arguing that our

precedent appears to prohibit lawyers from asserting their own

ineffectiveness. If that were true, it would give me pause. But the

majority overreads our precedent. Our precedent makes clear that

trial counsel cannot litigate contested ineffectiveness claims on a

motion for new trial, on appeal, or on habeas. But it does not address

the question of whether trial counsel may assert an uncontested

ineffectiveness claim in a motion for out-of-time appeal in the trial

court, which textual changes to the Georgia Rules of Professional

Conduct (the “Rules”) following our only decision analyzing any Rule

on this point strongly suggest is permissible. The majority’s broader

reading is wrong and, if adopted as a holding in a future case, would

tie the hands of the General Assembly in any later legislative effort

to fix what the majority breaks today.

     In Castell v. Kemp, 

 (

) (1985), we

denied an application for interlocutory appeal from a trial court

order disqualifying a lawyer. See 

. The only analysis in the

opinion was the trial court order, which we quoted in full without

                                 109
comment beyond denying the application. The trial court

disqualified Bruce Harvey, who had served as trial counsel for the

defendant, from representing the defendant in his habeas petition.

The trial court cited one non-binding rule and two non-binding

comments on the rules that applied at the time, each of which

related to pitfalls of lawyers serving as witnesses.40 Different text of

the old rule — again, in a non-binding comment — indicated that

testifying on an uncontested issue would not be a problem: “It is not

objectionable for a lawyer who is a potential witness to be an

advocate if it is unlikely that he will be called as a witness because

his testimony would be merely cumulative or if his testimony will

relate only to an uncontested issue.” Georgia Code of Professional

Responsibility, EC 5-10 (1985). The trial court did not note this

provision, no doubt because it was not at issue in the contested

habeas case before it.

      The trial court reasoned that the habeas petition sought to


      40 The trial court also cited an Eleventh Circuit case for the proposition

that “there may arise issues of potentially differing interests of the lawyer and
his client,” but made no conclusions about any conflict-of-interest rules.
                                      110
raise claims of ineffectiveness regarding Mr. Harvey, and that

“virtually all the evidence of ineffective assistance of counsel is

within counsel Harvey’s personal knowledge,” and “some evidence

can only come from Mr. Harvey.” Castell, 

. The trial

court noted its concern that the challenges to Mr. Harvey’s

credibility his testimony would inevitably generate, and the

necessity of cross-examination, posed threats to the integrity and

reliability of the judicial process. See 

.

     Sixteen years later, the State Bar proposed, and we approved,

a wholesale set of new rules modeled after the ABA model rules. The

old rule language quoted by the trial court largely no longer exists

in our current rules (which were again significantly revised in 2018).

The current binding rules on lawyers serving as witnesses generally

prohibit it, but expressly allow it where “the testimony relates to an

uncontested issue.” Ga. Rule of Professional Conduct 3.7 (a) (1); see

also Cmt. 3 to Rule 3.7 (“Paragraph (a) (1) recognizes that if the

testimony will be uncontested, the ambiguities in the dual role are

purely theoretical.”).

                                   111
     It’s well settled that “when statutory amendments . . .

materially alter text that this Court has previously interpreted, our

pre-amendment precedent no longer binds lower courts to the extent

the amendments change the meaning of the text.” State v. Stanford,

, 710 n.3 (

) (2021). And the Georgia Rules

of Professional Conduct are, like all legal text, subject to this

principle. To the extent that our quotation of the trial court’s order

in Castell adopted the trial court’s reasoning as a holding, the

material alteration of the rules made Castell obsolete, at least as to

testimony that was uncontested. Deleting a non-binding comment,

and replacing it with a binding rule — even if similar — is a

substantive change to the meaning of the rules.

     Over two decades after Castell and six years after the adoption

of the new rules, we cited Castell as the sole authority for the

proposition that “[b]ecause a lawyer may not ethically present a

claim that he/she provided a client with ineffective assistance of

counsel, a claim of ineffective assistance of trial counsel cannot be

pursued unless trial counsel is no longer representing the convicted

                                 112
defendant.” Hood v. State, 

 (

) (2007).

We did so only for the proposition that the defendant had not waived

ineffectiveness claims by failing to raise them before a belated pro

se motion for new trial. See 

 We then cited Hood in Garland v.

State, 

 (

) (2008), in support of our

conclusion that a defendant was entitled to new counsel on appeal

to pursue ineffectiveness claims.

     Hood and Garland are the only decisions of ours the majority

cites41 for the proposition that trial counsel are ethically prohibited

from raising a claim of ineffective assistance of counsel in a motion

for out-of-time appeal, even when uncontested. They do not stand

for that proposition. The only analysis on this point that any of these

cases included was the quotation of the trial court’s order in Castell,

which applied now-superseded rules regarding lawyers serving as

witnesses.42 Now, the current rules generally prohibit lawyers from


     41 The majority also cites a decision of our Court of Appeals. See Delevan

v. State, 

, 49-51 (

) (2018). That case relies on the
same authority already discussed and did not involve uncontested testimony.
      42 We also have stated more broadly that an attorney cannot “reasonably



                                     113
serving as witnesses on contested points, precisely the context in

which Castell and its progeny were decided. I have no quarrel with

that holding. But there is no basis to extend their holdings to cases

of uncontested testimony. The majority’s only response to all of this

is not to cite Castell.

      In short, neither the Rules nor our precedent interpreting them

prohibit trial counsel from seeking an out-of-time appeal when the

facts underlying the claim to which the lawyer would have to testify

are uncontested (and which, if the trial lawyer is still counsel,

naturally will be sought soon after the deadline has passed).

Allowing this kind of motion is the key value of the system that

presently exists relative to the system that will exist following the

majority’s opinion.

     3.   The majority’s workability concerns do not warrant
overruling our precedent.


be expected to assert or argue his own ineffectiveness on appeal[,]” particularly
in the contexts of determining whether a defendant needs new, conflict-free
counsel, see Garland, 

, and determining whether a claim of
ineffective assistance has been waived, see White v. Kelso, 

 (

) (1991). But that is not the same as saying that a lawyer is
categorically prohibited from asserting his own ineffectiveness in all
circumstances.
                                      114
     Now, it’s important to note once again that considerations like

these are not proper reasons to invent new avenues for relief that

contravene statutes or otherwise misapply statutory law and

equivalent legal principles in the first instance. But once we have

done so — for decades, and in ways that are now entrenched in our

legal system — these issues are appropriate to consider in

determining whether to change course.

     The majority’s response to these concerns is to observe that the

General Assembly could rectify any of these possible consequences

of tossing aside the current system. And the majority takes the

position that because we created the current situation, it is our

responsibility to fix it. But this is always true when we’ve gotten a

case wrong. The majority’s approach places a perpetual thumb on

the scale in favor of overturning precedent, which is backwards. The

idea that it doesn’t matter how much we break the legal system

because the General Assembly can glue the pieces back together is

simply not an argument compatible with stare decisis. Moreover, all

of the problems with the existing system also can be remedied by

                                115
actions of the General Assembly. Stare decisis means that when we

have competing workability considerations on both sides of a choice

whether to retain precedent, all of which can be addressed by the

legislature, we put the thumb on the scale of retaining our current

precedent.

     To be sure, our invention of the motion for out-of-time appeal

has led to problems, only some of which are identified at length in

my concurrence in Collier and our decision in Schoicket (and, of

course, the majority’s decision today). But we have only a binary

choice of retaining or overruling precedent; stare decisis allows us to

keep a wrong precedent, not to improve on it. And this binary choice

is a blunt instrument for solving the problems we have recognized.

The General Assembly, on the other hand, has far more options. For

instance, it might limit the filing of such motions to a six-month

period after the deadline for the filing of a notice of appeal. Or it

might tie the ability to file such a motion to the appointment of new

counsel for appeal, requiring counsel to file the motion within, say,

60 days of appointment.

                                 116
     The majority also contends that our current precedents are

unworkable because they present an ongoing requirement that this

Court “fill in the details of the trial court out-of-time appeal

procedure we created,” requiring us to exercise legislative power. I

disagree. There is no equivalent to the Civil Practice Act for criminal

cases. Many procedural vehicles are creatures of decisional law that

require, from time to time, our definition and refining. But we do not

do so unaided; there already are many background rules — common

law, statutory, and decisional — that apply to criminal proceedings

generally, and may well apply to motions for out-of-time appeal. To

the extent that we occasionally may be called upon to answer

questions about the application of such background rules, that is

what appellate courts do. Indeed, we did just that — unanimously

— less than five months ago regarding a judicially created

procedural mechanism in criminal cases. See Walker v. State, 

 (2) (

) (2021) (leaving undisturbed trial

courts’ authority to dismiss criminal charges for want of prosecution



                                 117
and defining some of the contours of that authority).43 The majority

focuses too narrowly on the effect this precedent has on us at the

expense of a proper concern for the effect it has more broadly.

      And to the extent that parties ask us to expand those

procedures, such tinkering is not ours to do. We made clear in

Schoicket our intention to cease inventing new procedural

mechanisms in this area. See 312 Ga. at 832 (1). But for the reasons

outlined above, neither should we jettison the mechanisms that have

existed ever since we erroneously invented them decades ago. We

should leave the next move — if any — for the General Assembly.

      I am authorized to state that Justice Bethel and Justice

Ellington join in this dissent.




      43 In Walker, we observed that the State and its amici had pointed us to

“no statute that purports to eliminate or limit this longstanding practice[.]”
312 Ga. at 644 (2). But that merely goes to the soundness of the original
creation of the practice, not to the majority’s argument that being called upon
to define the contours of a judicially created procedure is unworkable.
                                     118
                         Decided March 15, 2022.

     Out-of-time appeal. Polk Superior Court. Before Judge Lim.

     The Leslie Group, Deborah L. Leslie, for appellant.

     Jack Browning, Jr., District Attorney; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, W. Wright Banks, Jr.,

Deputy Attorneys General, Paula K. Smith, Senior Assistant

Attorney General, Ashleigh D. Headrick, Stephen J. Petrany,

Assistant Attorneys General, Ross W. Bergethon, Deputy Solicitor-

General, for appellee.

     Jill A. Travis; James C. Bonner, Jr.; Willis Law Firm, Gregory

A. Willis; The Bullard Firm, Brandon A. Bullard; Miller & Key, J.

Scott Key; Peter J. Skandalakis, Robert W. Smith, Jr., amici curiae.




                                   119