ALBANY, Ga. -- A man convicted of murder in Dougherty County in 1997 has had his trial court's denial of his motion for an out-of-time appeal upheld by the Georgia Supreme Court.
Calvin Sessions was found guilty by a jury on Dec. 10, 1997 of several counts each of murder, felony murder, aggravated assault and possession of a firearm, as well as a count of armed robbery and a count of obstruction of an officer after 25-year-old Donyetta Drake and 65-year-old Harvey Ferrell were fatally wounded on Jan. 5, 1995. Prosecutors sought the death penalty, but the jury could not agree on a death penalty verdict, court documents show.
Two days later, Sessions was sentenced to life without parole, two life sentences with parole and a term of years for other felonies. Sessions did not file a motion for a new trial or notice of appeal, but did file a pro se pleading entitled "Application for Out of Time Motion for New Trial" on June 23, 1998, which was treated as an extraordinary motion for a new trial, and was denied without a hearing on Feb.10, 1999, records show.
Meanwhile, on Nov. 10, 1998, Sessions, through counsel, filed a petition for habeas corpus relief in which he alleged he was denied his right to appeal in violation of the Fifth, Sixth and Fourteenth Amendments due to his court-appointed trial attorneys' failure to file an appeal. The habeas court held a hearing the following October, at which he and two of his trial attorneys testified.
Relief was denied per an order that came down on July 31, 2000. The state's high court dismissed his application to appeal the decision, the opinion released by the court on Monday says.
In 2010, Sessions filed the instant motion to file an appeal out-of-time. The trial court denied the motion finding that, after his conviction, he told his trial counsel he did not want any Dougherty County attorneys to represent him and that he and his family would seek representation from other counsel. As such, the trial court concluded he had waived his right to appeal through his own conduct, the opinion goes on to say.
"Appellant contends his motion for an out-of-time appeal should have been granted because his trial attorneys' inaction caused him to be denied a direct appeal," the opinion reads. "This contention cannot be sustained. An out-of-time appeal is a judicially-created remedy for a frustrated right of appeal and is granted if the defendant shows he lost his right to a direct appeal through the error of counsel. If there is sufficient evidence to support a finding that the movant's conduct caused the loss of his direct appeal, then the movant is not entitled to an out-of-time appeal.
"Indeed, the current state of the law is such that a criminal defendant does not have a state or federal constitutional right to appellate review."
Since it was determined that Sessions had forfeited his right to appeal through inaction and the habeas court decided the issue of ineffective assistance of counsel adversely to him, he is now precluded under the doctrine of collateral estoppel from re-litigating the merits of the issue -- and that the trial court ultimately did not err when it denied the motion for an out-of-time appeal, the opinion says.