McCarthy v. GeorgiaAnnotate this Case
Rodney McCarthy appealed a trial court’s order denying his request for an out-of-time appeal. In 1999, McCarthy, represented by retained counsel, was convicted of malice murder, possession of a firearm during commission of a crime, concealing the death of another, and tampering with evidence in connection with the death of Crystal Harewood. McCarthy requested and received a sentence review, but did not file a motion for new trial or a notice of appeal. McCarthy took no further action in this matter until four years later (in 2004), when he sought a trial transcript. The clerk of court informed McCarthy that the court reporter who took down the trial had suffered a stroke, and that the court did not have any transcripts from that time. At approximately the same time, McCarthy filed a petition for habeas relief, asserting: (1) McCarthy’s trial attorney was constitutionally ineffective for failing to file a notice of appeal or pursue an appeal; (2) that the trial court erred in charging the jury on whether or not the jury could infer an intent to kill; (3) that the trial court erred in failing to charge the jury on voluntary manslaughter; and (4) that McCarthy was denied due process. The special assistant attorney general assigned to McCarthy’s habeas case also requested the transcript, and was given portions taken down by the original reporter, including the court’s charge to the jury, the verdict, and sentencing. The habeas court issued a final order denying the writ, finding that “the gravamen of Petitioner’s claim is that he received ineffective assistance of counsel for counsel’s failure to timely file a notice of appeal.” The habeas court found that McCarthy failed to show that his trial counsel was deficient, specifically finding that both the trial court and McCarthy’s trial counsel advised him of his right to appeal and that McCarthy’s “failure to pursue a direct appeal was due solely to his own inaction.” Finding that the trial court did not abuse its discretion in denying the request for an out-of-time appeal, the Georgia Supreme Court affirmed the judgment of the trial court.