Murray v. The State

Doyle, Presiding Judge. In 2006, Paul K. Murray pleaded guilty to three counts of child molestation, and he was sentenced to 20 years on each count to be served concurrently. On June 21, 2019, Murray moved for an out-of-time appeal, alleging in part that trial counsel was ineffective for failing to advise him of his right to a direct appeal.^[1] The trial court dismissed the motion on August 30, 2019, without holding a hearing.^[2] Murray appeals, pro se, and for the reasons that follow, we vacate the dismissal and remand the case for proceedings consistent with this opinion. “A criminal defendant is entitled to an outoftime appeal if his counsel’s constitutionally deficient performance deprived him of an appeal of right that he otherwise would have pursued.”^[3] If the constitutional violation alleged by the defendant is ineffective assistance of counsel in providing advice about or acting upon an appeal of right [such as an appeal from the judgment of conviction entered on a guilty plea], that violation is reviewed under the familiar standard of Strickland v. Washington.[^[4]] To meet his burden of proving that counsel’s ineffectiveness deprived him of his right to an appeal, the criminal defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant.^[5] However, with regard to the deficient performance prong of the Strickland test, “we cannot determine whether [Murray's] counsel performed deficiently in failing to file a notice of appeal because the trial court failed to hold an evidentiary hearing on the issue.” Accordingly, we must vacate the trial court’s order denying [Murray's] motion for an outoftime appeal and remand this case to the trial court for a determination of whether counsel performed deficiently in failing to inform [Murray] of his right to a direct appeal from his guilty plea.”^[6] “We therefore vacate the trial court’s order denying Boone’s motion for an outoftime appeal and remand this case to the trial court for proceedings consistent with this opinion.”^[7] Judgment vacated and remanded. McFadden, C. J., and Hodges, J., concur.