Dos Santos v. State

FINAL COPY

            S19A1352. DOS SANTOS v. THE STATE.


     NAHMIAS, Presiding Justice.

     On April 16, 2018, Tia Marie Dos Santos entered negotiated

guilty pleas to felony murder and other crimes. In the same term of

court, she filed a pro se motion to withdraw her guilty pleas. The

trial court denied the motion as meritless, and Dos Santos timely

appealed to this Court. As we explain below, under our decision in

White v. State, 

 (

) (2017), the trial court

should have dismissed Dos Santos’s pro se motion as a legal nullity,

because she was still represented by her plea counsel when she filed

the motion. We therefore vacate the trial court’s judgment and

remand the case with direction to dismiss the motion to withdraw

guilty pleas as inoperative. We also recognize, as we did not in White

and some other cases, that had the trial court properly dismissed

the motion, we would properly dismiss a subsequent appeal from

that judgment, rather than affirming the judgment. Finally, we
emphasize how important it is for criminal defense lawyers not to

abandon their clients immediately after a guilty plea, and we discuss

how to deal with some of the practical issues that may arise from

the holdings in White that we reiterate today.

     1. On May 11, 2017, a Clayton County grand jury indicted Dos

Santos for murder and a variety of other crimes, most of which were

in connection with the non-fatal shooting of her ex-boyfriend Jose

Moore, the fatal shooting of his new girlfriend Claudette Duclos, and

the aggravated assault of a bystander. Three weeks later, a lawyer

who apparently was retained by Dos Santos’s mother filed an entry

of appearance in the case. On April 16, 2018, the first day of her

scheduled trial, Dos Santos, who was still represented by counsel,

entered negotiated guilty pleas under North Carolina v. Alford, 

 (

, 27 LE2d 162) (1970), to felony murder based on

aggravated assault, two counts of aggravated assault (of Moore and

the bystander), and theft by taking. In exchange, the State agreed

to nolle pros the remaining charges and to recommend sentences of

life in prison with the possibility of parole for the murder and

                                 2
concurrent terms of twenty years for the two aggravated assaults

and ten years for the theft. The trial court then sentenced Dos

Santos in accordance with the negotiated agreement. The court filed

the final judgment of conviction and sentence that same day.

     Eight days later, on April 24, Dos Santos filed a pro se motion

to withdraw her guilty pleas.1 The trial court’s new term of court

began less than two weeks later, on May 7. See OCGA § 15-6-3 (10)

(fixing the starting dates for the terms of the Clayton County

Superior Court as the “[f]irst Monday in February, May, August, and

November”). On May 11, the trial court filed an order saying that

Dos Santos had appeared at a motions hearing that day and had

indicated that she wanted to retain a new lawyer. The court ordered


     1 Although Dos Santos had the right to withdraw her guilty pleas before

the trial court pronounced its sentence, see OCGA § 17-7-93 (b), “[a]fter
sentencing, a defendant may withdraw a guilty plea only to correct a manifest
injustice, such as where the defendant was denied effective assistance of
counsel, or the guilty plea was entered involuntarily or without an
understanding of the nature of the charges.” McGuyton v. State, 

 (

) (2016) (citation and punctuation omitted). See also USCR
33.12. In her pro se motion, Dos Santos claimed that her guilty pleas were
involuntary because she was coerced into entering them by her plea counsel
and her mother and because her plea counsel provided ineffective assistance
by misadvising her about her ability to appeal her case and by continuing to
represent her after her mother had fired him.
                                     3
Dos Santos to retain new counsel by June 11; otherwise, new counsel

would be appointed for her. On May 14, Dos Santos’s plea counsel

filed a written request to withdraw from the case, which the trial

court granted on May 22. The court appointed post-conviction

counsel for Dos Santos, and he filed an entry of appearance. He did

not file a new or amended motion to withdraw the guilty pleas.

      On July 31, 2018, the trial court held an evidentiary hearing

on Dos Santos’s pro se motion, at which her post-conviction counsel

presented argument and called as witnesses Dos Santos, her plea

counsel, her mother, and her mother’s boyfriend.2 On December 31,

2018, the trial court entered an order denying Dos Santos’s motion

on the merits. Through her post-conviction counsel, Dos Santos then

filed a timely notice of appeal, and in her appellate brief she raises

essentially the same claims that she asserted in the pro se motion

and at the hearing. We do not consider the merits of those claims,


      2 At the hearing, her counsel argued the claims that Dos Santos had

raised in her pro se motion, as well as claims that she was not informed of the
possible sentencing ranges and that her plea counsel provided ineffective
assistance by misadvising her about the possible sentencing ranges and by
failing to file a request for a voluntary manslaughter instruction.
                                      4
however, because Dos Santos’s pro se motion was a legal nullity and

should have been dismissed by the trial court on that ground.

     2. Two years ago in White v. State, 

, we considered

whether White’s two pro se motions to withdraw his guilty pleas,

which were timely filed during the same term of court in which he

was convicted and sentenced, were properly dismissed by the trial

court on the ground that he was represented by counsel when he

filed them. See 

 We rejected White’s argument that a criminal

defendant should be deemed unrepresented immediately after the

entry   of   sentence   and   concluded   instead   that   counsel’s

representation does not “terminate[ ] automatically on the entry of

a judgment and sentence — whether following the return of a jury

verdict or the entry of a guilty plea.” 

. To conclude

otherwise, we explained,

     would deprive defendants of the “guiding hand of
     counsel,” Powell v. Alabama, 

 (

,
     77 LE 158) (1932), at a point in the proceeding when
     important decisions need to be made and actions
     potentially taken, often with short deadlines, regarding
     the filing of a post-trial motion (e.g., a motion for new
     trial), a post-plea motion (e.g., a motion to withdraw a

                                 5
     guilty plea), or a notice of appeal. Such a holding also
     would contradict this Court’s precedents on out-of-time
     appeals, which recognize that defense counsel’s duties
     toward their clients extend for at least the 30 days after
     the entry of judgment when a notice of appeal may be
     filed.

Id. at 318. We therefore held that,

     at a minimum, legal representation continues – unless
     interrupted by entry of an order allowing counsel to
     withdraw or compliance with the requirements for
     substitution of counsel, see USCR 4.3 (1)-(3) – through the
     end of the term at which a trial court enters a judgment
     of conviction and sentence on a guilty plea . . . .

Id. at 319.

     Applying this holding, we explained that when White filed his

pro se motions to withdraw his guilty pleas, he was still represented

by his plea counsel, because the motions were filed during the term

in which White was convicted and sentenced and his counsel had not

properly withdrawn from the case. See White, 

. Thus,

the trial court correctly dismissed White’s pro se motions as “legal

nullities,” because “‘[a] criminal defendant in Georgia does not have

the right to represent himself and also be represented by an

attorney, and pro se filings by represented parties are therefore

                                  6
“unauthorized and without effect.”’” 

 (quoting Tolbert v. Toole, 

 (

) (2014) (quoting Cotton v. State, 

 (

) (2005))).

     3. In this case, Dos Santos, like White, filed her pro se motion

to withdraw her guilty pleas before the end of the term of court in

which she was sentenced, which is the deadline for filing such a

motion. See Brooks v. State, 

 (

) (2017)

(“‘A motion to withdraw a guilty plea must be filed within the same

term of court as the sentence entered on the guilty plea.’” (citation

omitted)). However, when she filed her motion, Dos Santos was still

represented by her plea counsel, who had a duty under White to

continue his representation of her at least through the end of the

term of court, unless he properly withdrew from the case or was

replaced by substitute counsel. The record indicates that plea

counsel did not even request to withdraw from Dos Santos’s case

until a week after the term had ended, and the trial court did not

file its order permitting him to do so until more than a week after



                                    7
that.3

      Accordingly, just like White, Dos Santos’s pro se motion to

withdraw her pleas was unauthorized and without effect, because

she had no right to represent herself at the same time she was

represented by a lawyer. See White, 

. See also

Williams v. Moody, 

 (

) (2010) (“A pro

se motion filed by a convicted defendant while represented by

counsel is ‘unauthorized and without effect.’” (citation omitted));

Cargill v. State, 

 (

) (1986) (holding

that neither the Sixth Amendment to the United States Constitution


      3 In her motion to withdraw her guilty pleas and at the hearing on the

motion, Dos Santos claimed that shortly before she entered her pleas, her
mother, who had retained plea counsel, fired him. But the testimony at the
hearing established that plea counsel properly told Dos Santos’s mother that
she could not fire him and that only the trial court could allow him to withdraw
from the case. See USCR 4.3; Tolbert, 

 (“A formal withdrawal of
counsel cannot be accomplished until after the trial court issues an order
permitting the withdrawal. Until such an order properly is made and entered,
no formal withdrawal can occur and counsel remains counsel of record.”
(citation and punctuation omitted)). See also Rule 1.8 (f) of the Georgia Rules
of Professional Conduct (“A lawyer shall not accept compensation for
representing a client from one other than the client unless . . . there is no
interference with the lawyer’s independence of professional judgment or with
the client-lawyer relationship . . . .”). Nothing in the record indicates that Dos
Santos — plea counsel’s client — had discharged him or that the trial court
permitted his withdrawal at any time before the end of the term of court.

                                        8
nor the Georgia Constitution affords a criminal defendant the

hybrid right to simultaneously represent himself and to be

represented by counsel), overruled on other grounds by Manzano v.

State, 

 (

) (2007). The trial court should

have dismissed Dos Santos’s pro se motion rather than ruling on its

merits. See White, 

.4 We therefore vacate the trial

court’s judgment and remand the case with direction to dismiss the

motion. See Brooks, 

. See also Cason v. State, 

, 830 (

) (2019); Hernandez-Ramirez v. State,

, 403 (

) (2018).

     4. Our consideration of the proper judgment in this case has

led to the realization that our judgment lines in White and similar

cases were incorrect. Where a filing in a criminal case is a legal


     4 Dos Santos had new counsel who represented her at the hearing on her

motion, but that could not breathe life into her inoperative pleading. The new
lawyer did not file a new motion to withdraw Dos Santos’s guilty pleas, but
even if he had done so, the term of court in which she was sentenced was over
before he began representing her, so such a motion would have been untimely,
and the trial court would have lacked jurisdiction to grant it. See White, 

. New counsel also did not amend the pro se motion, but even if he
had, “an amended motion is not a time machine that allows a litigant to change
past events,” and “a pleading purporting to amend a prior filing that was a
nullity . . . does not relate back in time to the date of the non-filing.” 

                                      9
nullity, we have held in several contexts not only that the trial court

should dismiss the nugatory filing rather than ruling on its merits,

but also that no appeal from such an inoperative filing is authorized,

so if a defendant appeals a trial court order that properly dismisses

(or denies) such a filing as a nullity, the appeal should be dismissed

rather than the trial court’s judgment being affirmed. See, e.g.,

Schoicket v. State, 

 (

) (2018)

(dismissing an appeal regarding a criminal defendant’s motion for a

free copy of the records in her case, after the time for appeal had

expired and without any showing of necessity or justification,

because the motion was a nullity); Henderson v. State, 

 (

) (2018) (“Because the law does not recognize a

motion for a transcript at public expense filed in a criminal case

after the opportunity for a direct appeal has ended, the trial court

should have dismissed Henderson’s motion as a nullity, and he has

nothing cognizable to appeal.”); Williams v. State, 

(

) (2010) (dismissing an appeal from an order denying

the defendant’s motion to correct his illegal conviction, because such

                                  10
a motion is not an appropriate remedy in a criminal case). See also

Brooks, 

 (discussing the disposition of appeals of trial

court orders that improperly rule on the merits of a criminal

defendant’s motion).5

      In White, however, after concluding that White’s pro se motions

to withdraw his guilty pleas were legal nullities properly dismissed

by the trial court, we did not dismiss his appeal but rather affirmed

the trial court’s dismissal judgment. See 

. And in a

few subsequent cases where the validity of an appellant’s timely pro

se motion to withdraw guilty pleas while apparently still

represented by plea counsel was not put at issue in the trial court or

on appeal, we have ruled on the merits of the appeal rather than

considering whether the underlying motion was a nullity rendering

improper the trial court’s judgment on the merits. See Bradley v.


      5 We note that a motion to withdraw a guilty plea filed by counsel, or pro

se by a defendant no longer represented by counsel, after the term of court
expires is merely untimely, not a legal nullity, and an order on such a motion
may be appealed. See Brooks, 

 n.6. We also note that if a
defendant files a pro se notice of appeal in the same term of court that his
guilty plea was entered and while still represented by plea counsel, the notice
itself is a nullity and the appeal should be dismissed for that reason. See, e.g.,
Soberanis v. State, 

, 405 (

) (2018).
                                       11
State, 

, 857 n.1, 863 (

) (2019); Ringold v.

State, 

, 875 n.1, 882 (

) (2019); Johnson v.

State, 

 (

) (2018).

     In none of these cases, however, did we specifically address the

proper disposition of an appeal from a ruling on a pro se motion that

was inoperative from the start because the appellant was

represented by counsel when the motion was filed. Thus, those

decisions were not precedential holdings that these sorts of appeals

from rulings on legally nugatory motions should be decided on their

merits. See Willis v. State, 

 (

) (2018).

(“‘[Q]uestions 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)). Having now focused on the issue, we will henceforth

follow the approach taken in cases like Schoicket, Henderson, and

Williams, and will dismiss appeals from trial court orders that

properly treat as legal nullities motions to withdraw guilty pleas

filed pro se by defendants who are represented by counsel.

                                 12
     5. Defendants who plead guilty to criminal charges in Georgia

courts have the right to timely pursue post-conviction remedies,

including a motion to withdraw the guilty plea and an appeal. With

respect to at least those two potential remedies, defendants have a

Sixth Amendment right to the effective assistance of counsel to

advise them about the potential remedy and to pursue the remedy if

appropriate. See White, 

 (citing cases recognizing the

potential for an out-of-time appeal from a guilty plea due to plea

counsel’s ineffective assistance with regard to filing a timely direct

appeal); Ringold, 

 (reiterating that a defendant

has a right to counsel for a timely motion to withdraw a guilty plea

and an appeal from the denial of such a motion). See also Collier v.

State, ___ Ga. ___, ___ (___ SE2d ___) (2019) (holding, in disapproval

of past precedent, that a defendant has an unqualified right to

appeal directly from a judgment entered on a guilty plea). In Ringold

and Collier, this Court has emphasized that defense lawyers

generally have a constitutional duty to consult with their clients

regarding these proceedings, relying on authoritative decisions of

                                 13
the United States Supreme Court regarding ineffective assistance of

counsel in this context. See Ringold, 

 (discussing

Roe v. Flores-Ortega, 

 (

, 145 LE2d 985)

(2000)); Collier, ___ Ga. at ___ (discussing Flores-Ortega and Garza

v. Idaho, ___ U.S. ___ (

, 203 LE2d 77) (2019)).6

      If it was not clear enough before, these recent decisions —



      6 In Ringold, which was decided a month before Garza, we looked to

Flores-Ortega to explain that if counsel adequately consulted with the
defendant about an appeal — meaning that counsel “‘advis[ed] the defendant
about the advantages and disadvantages of taking an appeal, and ma[de] a
reasonable effort to discover the defendant’s wishes’” — then counsel performs
deficiently “only if he fail[s] to ‘follow the defendant’s express directions with
respect to an appeal.’” Ringold, 

 (quoting Flores-Ortega, 

). If counsel did not consult with the defendant, however, the court
must determine whether the failure to consult “‘itself constitute[s] deficient
performance.’” 

 (quoting same). In this inquiry, the court “‘must take into
account all the information counsel knew or should have known.’” 

 (quoting
Flores-Ortega, 

).
       “[A] highly relevant factor in this inquiry will be whether the
       conviction follows a trial or a guilty plea, both because a guilty plea
       reduces the scope of potentially appealable issues and because
       such a plea may indicate that the defendant seeks an end to
       judicial proceedings. Even in cases when the defendant pleads
       guilty, the court must consider such factors as whether the
       defendant received the sentence bargained for as part of the plea
       and whether the plea expressly reserved or waived some or all
       appeal rights.”

 (quoting same). In Garza, the Supreme Court reaffirmed Flores-Ortega and
held that plea counsel may have a duty to consult with the defendant about an
appeal even when a negotiated plea agreement includes a broad appeal waiver.
See Garza, 

.
                                       14
along with our reiteration of White’s holding today — should leave

no doubt that Georgia lawyers cannot simply abandon their criminal

defendant clients immediately after the defendants enter guilty

pleas and are sentenced. Defense counsel are obligated to continue

to represent their clients at least until the time for these post-

conviction remedies expires (and if such a remedy is timely pursued,

until it is resolved) — unless the lawyer is properly authorized by

the trial court to withdraw from the representation or is properly

replaced by substitute counsel, events that should be reflected in

writing in the record for the case. See USCR 4.3 (2) and (3)

(discussing “the entry of an order permitting withdrawal [of

counsel]” and the “fil[ing] with the clerk of court [of] a notice of

substitution   of   counsel”).   The   time   period   for   continued

representation after a judgment on a guilty plea is entered will

typically be the longer of 30 days (the deadline for filing a notice of

appeal unless tolled or extended, see OCGA §§ 5-6-38 and 5-6-39),

or the time until the end of the term of court in which the judgment

was entered (the deadline for filing a timely motion to withdraw a

                                  15
guilty plea, see White, 

), which may be as short as the

same day or as long as seven months.7

      We recognize that these holdings may place difficult burdens

on conscientious defense counsel. A guilty plea may be entered near

or even on the last day of the court’s term, leaving little time to

consult with the defendant and to file a motion to withdraw the plea

if warranted. Or a legal ground on which a motion to withdraw the

guilty plea (or an appeal) would be based may create a conflict of

interest for plea counsel, requiring plea counsel to be replaced by

conflict-free counsel — a process that takes some time, both to

identify new counsel and to comply with USCR 4.3. See Davis v.

State, 

 (

) (2017) (holding that the

trial court committed reversible error by failing to appoint new



      7 The length of the terms for superior courts in Georgia range from two

months for a few heavily populated counties, see, e.g., OCGA § 15-6-3 (3)
(Fulton County) to seven months for several smaller counties, see, e.g., id. (4)
(C) (Liberty County). A judgment on a guilty plea may be entered as early as
the first day of the term or as late as the close of business on the last day, but
a defendant is not entitled to more time for filing a motion to withdraw if he
pleads guilty later in the term. See, e.g., Barton v. State, 

(

) (2015) (involving a defendant who filed an untimely motion to
withdraw his guilty plea entered on the last business day of the court term).
                                       16
counsel for the defendant to pursue his motion to withdraw guilty

pleas, after he personally alleged during a hearing that his plea

counsel, who still represented him, provided ineffective assistance).

See also Garland v. State, 

 (

)

(2008) (explaining that because trial counsel cannot ethically assert

or argue a claim that he himself provided ineffective assistance, if a

claim of ineffective assistance of trial counsel is raised before appeal,

the appellant is entitled to the appointment of conflict-free counsel).8

      But before a guilty plea is entered, defense lawyers can explain

to their clients the basic processes for (and limitations on) post-

conviction challenges to guilty pleas, leaving only the decision to be

made about whether to invoke such a process. And when time is

tight, plea counsel may protect their client’s interests by filing a

timely, bare-bones “placeholder” motion to withdraw guilty plea,

which — unlike an untimely motion or an inoperative motion filed




      8 Even when a lawyer recognizes a possible conflict of interest that may

require him to withdraw from the representation of a client, he must “take
steps to the extent reasonably practicable to protect [the] client’s interests . . . .”
Rule 1.16 (d) of the Georgia Rules of Professional Conduct.
                                          17
pro se by the still-represented client — meets the filing deadline and

might be amended later (by conflict-free new counsel if necessary).

See Esprit v. State, 

, 429 n.1 (

) (2019) (noting

that one defendant filed a timely motion for new trial through his

trial counsel, which was later amended through new counsel to

assert a claim that trial counsel provided ineffective assistance);

Berrien v. State, 

 (

) (2017) (considering

a claim of ineffective assistance of plea counsel raised in an amended

motion to withdraw guilty pleas that was filed by new counsel).

Compare White, 

 (rejecting the argument that an

amendment filed by new counsel after the term of court expired

could render timely a timely-filed but inoperative pro se motion to

withdraw guilty pleas); Stokes v. State, 

 (

) (2010) (explaining that a claim of ineffectiveness of plea

counsel raised in an untimely motion to withdraw a guilty plea does

not render the motion timely).

     We also recognize that, unfortunately, some criminal defense

lawyers may not be as conscientious about their duties after their

                                 18
clients plead guilty and are sentenced. Defendants who are

abandoned by their plea counsel have a remedy, however. If a

defendant’s right to appeal from a guilty plea (directly or after filing

a motion to withdraw the plea) is frustrated by the constitutionally

ineffective assistance of plea counsel in advising the defendant

about or pursuing those post-conviction remedies, the defendant

may seek an out-of-time appeal in the trial court or in habeas corpus.

See Collier, ___ Ga. at ___; Ringold, 

. See also

Rowland v. State, 

 (

) (1995). But

see Neal v. State, 

 (

) (1974) (holding that

a motion seeking an out-of-time appeal should be filed as a habeas

petition, not in the trial court).9


      9 In Collier, we noted but did not decide the question of whether the

process for seeking an out-of-time appeal by motion in the trial court should
continue to be allowed along with the process for doing so in habeas corpus.
See ___ Ga. at ___. We need not address that question in the posture of this
case either. We also note that the Court of Appeals has held that if an out-of-
time appeal from a judgment entered on a guilty plea is granted, the defendant
is entitled not only to file an appeal with counsel but also to file a motion to
withdraw the guilty plea (and indeed must file such a motion to raise and
preserve claims that his prior counsel provided ineffective assistance). See
Dawson v. State, 

 (

) (2010). This Court
appears not to have specifically addressed that issue, however, and we need
not do so at this time.
                                      19
     6. To sum up, Dos Santos’s pro se motion to withdraw her guilty

pleas, filed while she was still represented by plea counsel, was a

legal nullity. The motion should have been dismissed on that ground

by the trial court, rather than denied on the merits, and on remand

the trial court is directed to dismiss the motion. No appeal will be

available from that dismissal order. Dos Santos has not yet sought

a remedy for her plea counsel’s possible abandonment of her after

her guilty plea, and we express no opinion on whether any such

remedy should be granted.

     Judgment vacated and case remanded with direction. All the
Justices concur.




                   DECIDED OCTOBER 21, 2019.
      Murder. Clayton Superior Court. Before Judge Carter.
      John W. Kraus, for appellant.
      Tracy Graham Lawson, District Attorney, Elizabeth A. Baker,
Jeffrey M. Hawkins, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew D. O’Brien, Assistant Attorney General, for appellee.



                                20