Harvey v. State

FINAL COPY


              S22A1083. HARVEY v. THE STATE.


     ELLINGTON, Justice.

     Holly Harvey appeals from an order of the trial court denying

her motion for an out-of-time appeal, denying her motion to modify

her sentences, and dismissing her motion to withdraw her guilty

pleas. After reviewing the record, we conclude that the trial court

properly dismissed her motion to withdraw her guilty pleas because

it was untimely filed. Because her motion for an out-of-time appeal

and motion to modify her sentences also should have been

dismissed, we vacate that part of the trial court’s order denying

these motions and remand to the trial court with direction.

     This is the second time this case has been before this Court.

See Harvey v. State, 

 (

) (2021) (“Harvey I”).

Pertinent to this appeal, the record shows that Harvey was indicted

by a Fayette County grand jury in September 2004 for two counts of
malice murder, two counts of felony murder, and one count of armed

robbery in connection with the August 2, 2004 stabbing deaths of

her grandparents. She entered negotiated guilty pleas to two counts

of malice murder on April 14, 2005, and was sentenced the same day

to two consecutive life sentences. Seven years later, Harvey filed a

pro se motion for an out-of-time appeal in which she argued that her

plea counsel provided constitutionally ineffective assistance of

counsel and that she was entitled to withdraw her guilty pleas

because counsel’s ineffectiveness frustrated her ability to seek

review of her pleas. After she amended her motion for an out-of-time

appeal multiple times, the trial court denied the motion on February

19, 2021, a decision we affirmed in Harvey I.

     In January 2022, Harvey returned to the trial court, where she

filed the motions at issue in this appeal: for an out-of-time appeal,

to withdraw her April 2005 guilty pleas, and to modify her

sentences. She amended the motion to modify her sentence and

motion to withdraw her guilty pleas on February 10, 2022, and on

February 14 and 15, 2022, the trial court entered orders in which it

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denied both the motion for an out-of-time appeal and motion to

modify her sentences and dismissed as untimely under OCGA § 17-

10-1 (f) the motion to withdraw her guilty pleas. Harvey challenges

the trial court’s decision as to each of these motions in this appeal.1

     1. Harvey contends the trial court erred by denying her motion

for an out-of-time appeal. We agree, because the trial court should

have dismissed the motion rather than consider its merits.

     In Cook v. State, 

 (

) (2022), this Court

eliminated the judicially created out-of-time-appeal procedure,

holding that a trial court is “without jurisdiction to decide [a] motion

for out-of-time appeal” on the merits because there “is no legal

authority for motions for out-of-time appeal in trial courts.” 

 (5). We also directed in Cook that “pending and future motions

for out-of-time appeals in trial courts should be dismissed, and trial

court orders that have decided such motions on the merits . . . should

be vacated if direct review of the case remains pending or if the case


     1 Harvey filed a timely notice of appeal from the trial court’s order. The

appeal was docketed to the August 2022 term of this Court and submitted for
a decision on the briefs.
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is otherwise not final.” 

 (4). Accordingly, that part of the

trial court’s order denying Harvey’s motion for an out-of-time appeal

is vacated and remanded to the trial court for the entry of an order

dismissing the motion.2

      Citing our decision in Cook, Harvey also argues that this Court

should recall the remittitur in Harvey I and remand that case to the

trial court with direction that the motion be dismissed because the

trial court lacked jurisdiction to consider her first motion for an out-

of-time appeal on its merits. As previously stated, however, our

holding in Cook applies only to cases that were on “direct review or


      2 Even if Harvey’s motion for an out-of-time appeal was not subject to

dismissal under Cook, the claims she raises in the motion would be barred by
the doctrine of res judicata. “Res judicata precludes re-litigation of claims
where the cause of action and the parties or their privies are identical and the
claim was previously adjudicated on the merits by a court of competent
jurisdiction.” (Citation and punctuation omitted.) Cooper v. State, 

 (

) (2019). The record in this case demonstrates that each of
the grounds on which Harvey bases her claims for a second out-of-time appeal
was either raised or could have been raised in her first motion for an out-of-
time appeal, and the denial of those claims became final when affirmed in
Harvey I. See, e.g., Cooper, 

 (holding that under the doctrine of
res judicata, the previous denial of a motion for an out-of-time appeal bars a
new motion for an out-of-time appeal); Beasley v. State, 

 (

) (2015) (“[T]he doctrine of res judicata precludes not only re-litigation
of claims that were actually adjudicated in the prior cause of action, but those
which could have been adjudicated therein.”). Any attempted re-litigation of
these claims would, therefore, be barred.
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otherwise not yet final” when the opinion issued. 

 (5).

Harvey’s first motion for an out-of-time appeal was denied by the

trial court in February 2021, and that denial was affirmed by this

Court on August 10, 2021, before Cook was decided. The denial of

Harvey’s initial motion for an out-of-time appeal became final before

Cook was issued and was unaffected by that decision. Accordingly,

there is no basis for this Court to recall the remittitur in Harvey I.

     2. Harvey asserts that the trial court erred by dismissing the

motion to withdraw her guilty pleas. Because the motion was

untimely filed, the trial court properly dismissed this motion.

     Under Georgia law, a motion to withdraw a guilty plea must be

filed within the same term of court as the sentence entered on the

guilty plea. See Schoicket v. State, 

 (1) (

) (2021); Brooks v. State, 

 (2) (

) (2017).

As we recognized in Schoicket, “[t]his well-established rule is merely

the application of a bedrock common-law principle that applies

equally to other criminal motions and in civil cases.” 312 Ga. at 827

(1). And, if a defendant seeks to withdraw a guilty plea after

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expiration of the term of court in which the sentence was imposed,

the defendant “must pursue such relief through habeas corpus

proceedings.” Id. Harvey’s motion to withdraw her guilty pleas was

filed in the Fayette County Superior Court more than 16 years after

her 2005 sentencing by that court. It was, therefore, untimely, and

the trial court lacked jurisdiction to consider the motion on its

merits. Accordingly, it was properly dismissed.

     We reject Harvey’s suggestion that we should recognize a

defendant’s right to file an otherwise untimely motion to withdraw

a guilty plea because, she asserts, habeas corpus is a constitutionally

inadequate remedy. As we did in Schoicket, we decline the invitation

to “invent additional remedies that might further complicate our

post-conviction jurisprudence.” 312 Ga. at 826 (1). The General

Assembly has enacted habeas statutes balancing the competing

interests of a defendant’s constitutional rights and ensuring finality

of judgments, and this Court “lack[s] the authority to substitute our

policy preferences for those of the General Assembly and thereby

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

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id. at 827-831 (1).

     3. Finally, Harvey asserts the trial court abused its discretion

by denying her motion to modify her sentences under OCGA § 17-

10-1 (f). But the trial court lacked jurisdiction to consider the motion

on its merits, and the motion should have been dismissed.

     OCGA § 17-10-1 (f) grants a sentencing court “the jurisdiction,

power, and authority” to modify or vacate a sentence it previously

entered, but this authority is limited. “The sentencing court

generally has jurisdiction to modify or vacate such a sentence only

for one year following the imposition of the sentence[,]” von Thomas

v. State, 

 (2) (

) (2013), or “within 120

days after receipt by the sentencing court of the remittitur upon

affirmance of the judgment after direct appeal, whichever is later.”

OCGA § 17-10-1 (f). Here, because Harvey did not appeal from her

guilty pleas and sentences and filed her motion to modify her

sentences more than a year after the sentences were imposed, the




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trial court lacked jurisdiction to consider the motion on its merits. 3

Accordingly, we vacate that part of the trial court’s order denying

Harvey’s motion to modify her sentences, and we remand the case

to the trial court with direction that the motion be dismissed.

    Judgment affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur.




     3 Although a sentencing court has jurisdiction to vacate a void sentence

at any time, see von Thomas, 

 (2), Harvey does not claim that
her two life sentences for the malice murders of her grandparents were not
authorized. See OCGA § 16-5-1 (e) (1) (authorizing sentences of death, life
imprisonment without parole, or imprisonment for life for any person convicted
of the offense of murder).
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Decided December 20, 2022 — Reconsideration denied January 10,

                               2023.

     Murder. Fayette Superior Court. Before Judge Sams.

     Holly Harvey, pro se.

     Marie G. Broder, District Attorney, Elizabeth A. Baker, Daniel

A. Hiatt, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, Emily R. Polk,

Assistant Attorney General, for appellee.




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