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Georgia Supreme Court Announces Overruling Longstanding Rule That Anything Filed by Defendant While Represented by Counsel Is Always a ‘Legal Nullity’

by Douglas Ankney

The Supreme Court of Georgia unanimously held that courts maintain discretion to consider “hybrid motions,” i.e., motions filed pro se by defendants who are also represented by counsel, expressly overruling precedents that held to the contrary.

Garry Deyon Johnson was convicted of malice murder and robbery and sentenced to life in prison without parole and a term of 20 years running consecutively. The judgment of conviction was entered November 17, 2000. Johnson’s lead trial counsel was granted permission to withdraw on December 12, 2000, but his other appointed counsel never moved to withdraw. The following day, Johnson filed a pro se “Extraordinary Motion for New Trial.” In January 2001, Johnson wrote the trial court clerk for copies of his transcript, stating he was appealing pro se, and the clerk supplied the transcript in response.

But in September 2001, the clerk responded to Johnson’s further requests by informing him that attorney Paul David had been appointed for the appeal and that Johnson must seek copies of any additional filings from David. However, David never entered an appearance in the case nor responded to any of Johnson’s letters.

Johnson continued corresponding with the clerk until August 2004. Then after more than a 12-year gap, Johnson wrote the clerk again, requesting various filings, stating he had never received a ruling on his filings and that his trial attorneys were dead or not practicing law. Johnson was appointed new counsel, and the trial court entered a consent order granting Johnson leave to file an “out of time motion for new trial and appeal.” After hearings on the motion, the trial court denied it on January 28, 2022. By counsel, Johnson filed a notice of appeal.

The Georgia Supreme Court initially dismissed the appeal, reasoning that pursuant to White v. State, 806 S.E.2d 489 (Ga. 2017), Johnson’s December 13, 2000, motion for new trial was a legal nullity because it was filed pro se while Johnson was presumably represented by counsel. Further, the motion later filed by newly appointed counsel in 2018 was untimely, and the remedies of out-of-time motions for new trial or appeal were no longer cognizable pursuant to Cook v. State, 870 S.E.2d 758 (Ga. 2022) (eliminated judge-made “motion for out-of-time appeal). But on reconsideration, the Court vacated the dismissal order and reinstated the appeal, asking the parties and amici curiae to address whether “a pro se filing made by a defendant who is actually or presumptively represented by counsel [is] always a nullity.” The Court began with the concept of “hybrid representation.”

“Speaking generally, hybrid representation refers to when a defendant acts on his or her own behalf in court while he is at the same time represented by counsel.” Cargill v. State, 340 S.E.2d 891 (Ga. 1986). There is no right to hybrid representation under the U.S. Constitution because asserting the right to be represented by counsel is deemed a waiver of the Sixth Amendment right of self-representation. McKaskle v. Wiggins, 465 U.S. 168 (1984). And while under the former Georgia Constitution a state defendant in a criminal trial had a right to hybrid representation, Burney v. State, 257 S.E.2d 543 (Ga. 1979), the elimination of pertinent language from Art. I, § I, Par. XII of the current Constitution means that “a person no longer has the right to represent himself and also be represented by an attorney, i.e., the right to act as co-counsel.” Cargill. Under the former Georgia Constitution of 1976, a person had “the right to prosecute or defend his own cause in any of the courts of this state, in person, by attorney, or both.” But in the current Georgia Constitution of 1983, the words “or both” were stricken, and the clause reads: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”

Soon after, the Georgia Supreme Court recognized that defendants no longer had the right of hybrid representation, the Supreme Court made clear that the change to the Constitution left unaffected the trial courts’ discretion to allow hybrid representation. “[A]lthough a defendant may not insist on acting as co-counsel, the trial court may ... allow him to do so.” Hance v. Kemp, 373 S.E.2d 184 (Ga. 1988). The Supreme Court consistently maintained this position, allowing counseled defendants to act as co-counsel at the discretion of the trial courts and allowing trial courts to limit the role counseled defendants could personally inject into the trial when acting as co-counsel. (See opinion for listing of supporting citations.)

But in Eagle v. State, 440 S.E.2d 2 (Ga. 1994), the Supreme Court declined to consider a pro se brief filed by the defendant. After noting that Eagle was represented by counsel and that he had no right to hybrid representation, the Supreme Court simply said “the additional claims raised in Eagle’s pro se brief will not be considered.” However, it did not say Eagle was prohibited from filing the pro se brief.

In the current case, the Court acknowledged that the Supreme Court “lost the thread” starting in Johnson v. State, 470 S.E.2d 637 (Ga. 1996). The Johnson Court held that the trial court erred in addressing a pro se motion for new trial alleging ineffective assistance of counsel while the counsel complained of was still representing the defendant. In short, Johnson stood for the narrow proposition that a trial court cannot address a pro se claim of ineffective trial counsel while the defendant is still represented by that same trial counsel.

Unfortunately, the Supreme Court began citing Johnson for the much broader proposition of an absolute rule that pro se filings made while a defendant is represented by counsel are “invalid,” Ware v. State, 480 S.E.2d 599 (Ga. 1997); “unauthorized and without effect,” Cotton v. State, 613 S.E.2d (Ga. 2005); and “legal nullities,” Sims v. State, 862 S.E.2d 507 (Ga. 2021). The absolute rule applied in these cases, viz., a pro se filing by a counseled defendant is always a legal nullity, was not only in conflict with the Supreme Court’s earlier decisions recognizing a court’s discretion to allow hybrid representation, but also, the absolute rule was based on a cursory explanation that was obviously wrong.

In Lopez v. State, 852 S E.2d 547 (Ga. 2020), the support offered for this absolute rule was: “[A] criminal defendant does not have the right to represent himself and also be represented by an attorney. Thus, a pro se filing by a represented party is a legal nullity without effect.” While it was absolutely correct that a defendant represented by counsel does not have the right to represent himself, it does not follow that anything he files pro se is a legal nullity or prohibited, the Court explained. Said another way, just because a person does not have the right to do something does not necessarily mean he or she is prohibited from doing it.

And this wrong turn in the Supreme Court’s jurisprudence was not without harmful effect, the Court noted. In the important period right after entry of a defendant’s final judgment of conviction and sentence, the defendant faces tight deadlines for pursuing postconviction review or an appeal. Sometimes, a defendant wishes to appeal, move for a new trial, or withdraw a guilty plea, but counsel fails to timely file the proper papers. In those cases, a timely pro se filing could preserve the defendant’s right to these important kinds of review, the Court stated. Formerly, when counsel missed these deadlines, defendants could “seek an out-of-time appeal in the trial court or in habeas corpus.” Dos Santos v. State, 834 S.E.2d 733 (Ga. 2019). But in Cook, the Supreme Court held that the motion for out-of-time appeal was “not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations” in the court of conviction. And habeas corpus is an inadequate remedy in these circumstances because defendants are limited to raising only constitutional issues; they have no right to counsel; and they are subject to a four-year statute of limitations. Gibson v. Turpin, 513 S.E.2d 186 (Ga. 1999).

Consequently, with the absolute legal nullity rule and elimination of the possibility of an “out-of-time appeal,” the Court explained: “when a defendant has been abandoned by counsel during the critical post-conviction period, these rules … prevent even an attentive and diligent defendant from preserving his right to appeal.” See, e.g., Jones v. State, 840 S.E.2d 357 (Ga. 2020). Thus, the Court announced that “we overrule our past decisions to the extent that they hold that pro se filings by counseled defendants are always legal nullities.” (emphasis in original)

Now that the legal nullity rule has been overruled, the Court stated “we are left with our past decisions that correctly recognized that courts retain discretion to allow hybrid representation.” See Rivera v. State, 647 S.E.2d 70 (Ga. 2007); Colwell v. State, 544 S.E.2d 120 (Ga. 2001); see also Eagle. The Court instructed that the exercise of this discretion should be used “sparingly,” but any concerns about problems created by hybrid representation “may give way when recognizing a pro se filing would preserve a right of appeal that would otherwise be lost through no fault of the defendant.”

The Court stated that it is not undoing “what has been done” regarding “any pro se filings in cases that have already been adjudicated through direct appeal.” See Cook. It instructed that “our holding here applies to future cases and those pending cases whose direct appeals have not yet been adjudicated.”

Accordingly, the Court vacated the trial court’s order denying Johnson’s counseled motion for out-of-time appeal and remanded with instructions for the trial court to dismiss that motion and to exercise its discretion to determine whether to recognize and rule on any of the pro se postconviction motions Johnson filed. See: Johnson v. State, 885 S.W.2d 725 (Ga. 2023).

Writer’s note: The Court’s opinion also contains an in-depth discussion of the doctrine of stare decisis and the Georgia Supreme Court’s framework for overruling precedents.

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