Israel Mendez Mendez v. State

I
                               FOURTH DIVISION
                                DILLARD, P. J.,
                            MERCIER and COLVIN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                     March 12, 2021



In the Court of Appeals of Georgia
 A21A0241. MENDEZ v. THE STATE.

      MERCIER, Judge.

      Israel Mendez Mendez appeals from the trial court’s order denying his motion

for out-of-time appeal. For reasons that follow, we vacate the trial court’s judgment

and remand for further proceedings.

      In 2015, Mendez pled guilty to child molestation and was sentenced to a total

of 20 years, with 12 years to be served in prison and the remainder on probation.

Mendez subsequently filed a motion for out-of-time appeal, alleging that deficient

performance by his plea counsel frustrated his right to appeal. Specifically, he

claimed that plea counsel failed to advise him of his appellate rights and failed to file

a timely appeal. In connection with his motion, Mendez requested that the trial court
hold an evidentiary hearing “to determine if counsel was ineffective as stated[.]” The

trial court, however, summarily denied Mendez’s motion without a hearing.

      Mendez argues on appeal – and the State concedes – that the trial court erred

in denying his motion without conducting an evidentiary hearing. We agree. In

Georgia, a defendant who pleads guilty to criminal charges has “the right to timely

pursue post-conviction remedies, including . . . an appeal.” Dos Santos v. State, 

307

Ga. 151

, 156 (5) (834 SE2d 733) (2019). The defendant also has a Sixth Amendment

right to effective assistance of counsel regarding such appeal. See

id. If the

defendant’s

appellate rights are “frustrated by the constitutionally ineffective

assistance of plea counsel in advising the defendant about or pursuing . . .

post-conviction remedies, the defendant may seek an out-of-time appeal in the trial

court.”

Id. at 159 (5).

      Mendez raised an ineffective assistance claim in his motion for out-of-time

appeal. But because the trial court denied the motion without an evidentiary hearing,

“we cannot determine from the appellate record whether [Mendez’s] failure to timely

pursue an appeal was actually the result of his counsel’s deficient performance.”

Collier v. State, 

307 Ga. 363

, 376 (3) (834 SE2d 769) (2019). The lack of a hearing

deprived Mendez of a full and fair opportunity to pursue his motion for out-of-time

                                          2
appeal. See

id. Accordingly, we vacate

the order denying Mendez’s motion for

out-of-time appeal, remand the case for an evidentiary hearing on the motion, and

direct the trial court to reconsider the motion in a manner consistent with the Supreme

Court of Georgia’s decision in 

Collier, supra

. See Warner v. State, 

353 Ga. App. 325

,

327 (836 SE2d 638) (2019).

      Judgment vacated and case remanded with direction. Dillard, P. J., and

Colvin, J., concur.




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