In the Supreme Court of Georgia



                                             Decided: September 12, 2016


                      S16A0788. WALLER v. THE STATE.


          HINES, Presiding Justice.

          This is a pro se appeal by prisoner Lester Waller from the denial of his

motion for an out-of-time appeal following his convictions and sentences for

malice murder and possession of a knife during the commission of a felony in

connection with the May 2009 killing of his former girlfriend. For the reasons

which follow, we affirm.

         Assisted by counsel, Waller was tried before a jury, and in May 2010, was

found guilty of malice murder, felony murder, and possession of a knife during

the commission of a felony; he was sentenced to life in prison for the malice

murder and a consecutive five years in prison for possession of a knife during

the commission of a felony. Trial counsel filed a timely motion for new trial.

New post-conviction counsel was appointed and amended the motion for new

trial.     At the hearing in the matter in January 2013, Waller expressed
dissatisfaction with appointed counsel, apparently because counsel would not

pursue certain issues raised by Waller, and after being cautioned about doing so,

Waller elected to represent himself. The trial court indicated it would give

Waller additional time to support his grounds for a new trial, but that if his

motion for new trial was denied, he would be expected to perfect his appeal

within 30 days of the denial.

      Waller’s final supplemented motion for new trial was heard on October

8, 2013, and denied on November 21, 2013, making his notice of appeal due no

later than December 23, 2013. Waller filed a pro se notice of appeal which was

delivered in an envelope bearing a December 20, 2013 post-mark, but was not

file-stamped by the clerk of court until December 26, 2013. On May 23, 2014,

Waller, pro se, filed in the trial court a “Motion for Reissuance of Order

Denying Motion for New Trial” and a “Motion to Reinstate Motion for New

Trial Proceedings and, Motion for Appointment of Appeal Counsel,” contending

that he did not receive the order denying him a new trial until November 27,

2013, and consequently, was denied a full 30 days to submit his notice of

appeal. The appeal (Waller v. State, S14A1704) was docketed in this Court on

July 24, 2014. On August 13, 2014, the trial court denied Waller’s motions: it

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refused to set aside its order of November 21, 2013, denying Waller a new trial

and to reissue it, after finding that Waller received adequate notice of the ruling;

it denied his motion for appointment of appellate counsel, citing the shifting

nature of Waller’s preferences, his demonstrated capacity to handle the post-

trial proceedings, and the validity of his choice to represent himself. Waller did

not appeal these rulings.

      On September 2, 2014, this Court dismissed as untimely Waller’s appeal

of the November 21, 2013 denial of his motion for new trial. On October 17,

2014, Waller, still pro se, filed in the trial court a motion for an out-of-time

appeal, which motion he amended on May 14, 2015. On September 15, 2015,

Waller’s motion for an out-of-time appeal, as amended, was denied.

      Waller contends that he should be granted an out-of-time appeal because

his right to a direct appeal was frustrated in that pursuant to OCGA § 5-6-38 (a)1

      1
       OCGA § 5-6-38 (a) provides:
      A notice of appeal shall be filed within 30 days after entry of the appealable decision
      or judgment complained of; but when a motion for new trial, a motion in arrest of
      judgment, or a motion for judgment notwithstanding the verdict has been filed, the
      notice shall be filed within 30 days after the entry of the order granting, overruling,
      or otherwise finally disposing of the motion. In civil cases, the appellee may institute
      cross appeal by filing notice thereof within 15 days from service of the notice of
      appeal by the appellant; and the appellee may present for adjudication on the cross
      appeal all errors or rulings adversely affecting him; and in no case shall the appellee
      be required to institute an independent appeal on his own right, although the appellee
      may at his option file an independent appeal. The notice of cross appeal shall set

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he was entitled to 30 days to file his notice of appeal from the denial of his

supplemented motion for new trial but he was given only 24 days in which to

timely file his notice of appeal inasmuch as he did not receive the denial order

until November 27, 2013. He further maintains that he should be able to take

advantage of the “mailbox rule” set out in Massaline v. Williams, 274 Ga. 552

(554 SE2d 720) (2001), to make his notice of appeal timely. He also complains

that he was not adequately advised of the perils of proceeding pro se, that he

should have had “standby” counsel, that he should have been appointed yet

another attorney, and that he received ineffective assistance of counsel. But, the

contentions are unavailing.

      To begin with, Waller did not appeal the adverse rulings on his claims that

he received inadequate notice of the denial of his supplemented motion for new

trial and that he should be appointed yet another appellate attorney.

      forth the title and docket number of the case, the name of the appellee, the name and
      address of his attorney, and a designation of any portions of the record or transcript
      designated for omission by the appellant and which the appellee desires included and
      shall state that the appellee takes a cross appeal. In all cases where the notice of
      appeal did not specify that a transcript of evidence and proceedings was to be
      transmitted as a part of the record on appeal, the notice of cross appeal shall state
      whether such transcript is to be filed for inclusion in the record on appeal. A copy of
      the notice of cross appeal shall be served on other parties of record in the manner
      prescribed by Code Section 5-6-32.



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Pretermitting any procedural impediments to Waller’s present complaints in

those regards, several points should be noted. First, the 30-day time frame

provided in OCGA § 5-6-38 (a) is triggered by the “entry” of the judgment

sought to be appealed, and “[t]he filing with the clerk of a judgment, signed by

the judge, constitutes the entry of a judgment.” OCGA § 5-6-31. Second, the

“mailbox rule” of Massaline v. Williams does not apply outside the attempted

appeal of a final order by a pro se inmate in a habeas corpus case.2 Roberts v.

Cooper, 286 Ga. 657, 660 (691 SE2d 875) (2010). Lastly, a criminal defendant

does not have an absolute right to the appointment of an attorney of his own

choosing; the selection of appointed counsel is a matter within the trial court's

discretion. Hulett v. State, 296 Ga. 49, 56 (3) (766 SE2d 1) (2014).

      As for the trial court’s refusal to grant an out-of-time appeal, the starting

point in this Court’s review of the denial of a motion for an out-of-time appeal

is the recognition that a criminal defendant has an appeal of right from a final

judgment of conviction and sentence, but that such an appeal of right has to be

undertaken consistent with the laws of appellate procedure, and if it is not, the

defendant may forfeit the right of appeal. Mims v. State, ___ Ga. ___ (Case No.

      2
          Waller indicates that he has also filed a petition for a writ of habeas corpus.

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S16A0542, decided June 6, 2016). Furthermore,

             [o]ut-of-time appeals are designed to address the
             constitutional concerns that arise when a criminal
             defendant is denied his first appeal of right because the
             counseltowhichhewasconstitutionallyentitledtoassisthiminthatappealwasprofessionallydeficient
in not advising him to file a timely appeal and that deficiency caused prejudice.

Hudson v. State, 298 Ga. 536, 537, (3) (783 SE2d 130) (2016).                                     And,

“[w]hether the circumstances of a particular case warrant an out-of-time appeal

is a question committed in the first instance to the trial courts.” Mims v. State,

supra at ____.

        As the State correctly observes, Waller has failed to demonstrate in the

present appeal that his direct appeal of right of his convictions and sentences

was lost due to the professional deficiency of any attorney. On the contrary, the

record shows that Waller attempted a pro se direct appeal, but it was dismissed

as untimely, and rightly so. Simply, Waller has failed to show an abuse of

discretion in the trial court’s denial of his motion for an out-of-time appeal. See

Dennis v. State, 292 Ga. 303 (736 SE2d 428) (2013).

        Judgment affirmed. All the Justices concur.




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