In a recent ruling, the Court of Appeals of Georgia upheld the denial of Robert Owenby’s motion for an out-of-time appeal. This decision affects Owenby, who was convicted of aggravated assault and related charges, and it highlights the complexities surrounding the right to appeal in criminal cases.
The court's ruling came on May 22, 2026, under docket number A26A0673. Owenby had sought to appeal the denial of his motion for a new trial after his previous appeal was dismissed. This case underscores the challenges faced by defendants in navigating the appeals process, particularly when issues of ineffective assistance of counsel arise.
Background
Robert Owenby was convicted by a jury in Walker County on two counts of aggravated assault and other related crimes. The trial court issued a final judgment on June 6, 2019. Following his conviction, Owenby filed a motion for a new trial, which was denied on January 12, 2021. However, he did not file a notice of appeal within the required thirty days following that order.
On June 14, 2021, Owenby’s attorney filed a consent motion for an out-of-time appeal, stating that the notice of appeal was not filed on time due to an oversight. The trial court granted this motion, allowing Owenby to appeal. However, the Georgia Supreme Court later ruled in Cook v. State that motions for out-of-time appeals were not valid remedies for claims of ineffective assistance of counsel. Consequently, Owenby’s appeal was dismissed.
The Ruling
In the current case, Owenby filed a pro se motion for an out-of-time appeal under the newly enacted OCGA § 5-6-39.1, which allows for such motions under certain conditions. The court reviewed the motion and ultimately denied it, stating that Owenby failed to provide sufficient evidence to support his claim of ineffective assistance of counsel.
The court ruled, "A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed."
The judges involved in this case included Judge Davis, Presiding Judge Doyle, and Senior Judge Fuller. The court emphasized that without Owenby’s motion being part of the record, they could not determine the validity of his claims or the evidence he presented.
Impact
This ruling has significant implications for Owenby and others in similar situations. It reinforces the necessity for defendants to adhere strictly to procedural requirements when filing appeals. The court’s decision indicates that claims of ineffective assistance of counsel must be substantiated with credible evidence, particularly when seeking an out-of-time appeal.
Furthermore, this case illustrates the importance of having competent legal representation during the appeals process. Defendants who believe their counsel has failed them must be prepared to provide clear evidence to support their claims. The ruling serves as a reminder that the courts require substantial proof to overturn prior decisions, especially in the context of appeals.
What's Next
Owenby may have the option to appeal this ruling further, but details about any potential next steps were not available in the court filing. As it stands, his chances of successfully obtaining an out-of-time appeal appear limited based on the court's findings.