Shine v. State

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                                                 In the
                           Supreme Court of Georgia
                                            No. S26A0283
                                            I’Kenyo Shine
                                                  v.
                                              The State

                         On Appeal from the Superior Court of Bibb County
                                         No. 05CR59165

                                         Decided: April 21, 2026


                   LAND, Justice.
                 In 2006, I’Kenyo Shine, with the assistance of counsel, en-
          tered a negotiated plea pursuant to North Carolina v. Alford, 400
          US 25 (1970), to the felony murder of Jerome Hill. He received a
          life sentence and did not file a direct appeal. Since entering his
          plea, Shine has filed many different motions and actions in sev-
          eral different courts in an attempt to avoid the consequences of
          that plea, including several unsuccessful petitions for the writ of
          habeas corpus and at least two motions for out-of-time appeal.
          Although the procedural history of this case is long and at times
          difficult to follow, the central issue on this appeal is straightfor-
          ward: the question is whether the trial court abused its discretion
          by denying Shine’s 2025 motion for an out-of-time appeal. Shine
          argues that the trial court abused its discretion when it denied
          his motion for out-of-time appeal on the ground of res judicata,
          that the trial court erred in relying on habeas corpus orders that
          failed to apply controlling precedent, and that Bibb County Supe-
          rior Court Judge Howard Z. Simms erred in presiding over
          Shine’s motion for out-of-time appeal after he had previously
recused himself from the case. For the reasons set forth below, we
affirm the trial court’s ruling.
       In May 2005, a Bibb County grand jury indicted Shine on
charges of malice murder, felony murder, armed robbery, aggra-
vated assault, and possession of a firearm during the commission
of a crime. On March 6, 2006, Shine, who was represented by
counsel, entered an Alford plea on the felony murder charge and
was sentenced to life in prison. The remaining charges were nolle
prossed.
       Shine’s numerous post-conviction filings include a 2008
state habeas petition that directly challenged his guilty plea. That
petition alleged over 20 separate grounds for why he should be
granted habeas relief, including claims that his plea was invalid
and that his lawyer was ineffective. In addition, Shine specifically
alleged that he received ineffective assistance of counsel because
plea counsel failed to file a motion to withdraw his plea and failed
to advise him of his appellate rights. 1
       The habeas court denied the petition on May 6, 2009, con-
cluding that none of Shine’s claims had any merit. With respect
to Shine’s claim that plea counsel failed to file a motion to with-
draw his guilty plea, the habeas court found that plea counsel
“properly advised [Shine] that she could not file a motion to with-
draw in which she raised a claim of ineffectiveness against her-
self.” With respect to Shine’s claim that counsel failed to advise
him of his appellate rights, the habeas court found that counsel
“did not violate any existing duty to advise a guilty plea of a non-
existent right” because, under Smith v. State, 266 Ga. 687 (1996),


       1 Although Shine’s petition for writ of habeas corpus is not included in
the record before us, the habeas court’s May 6, 2009 order lays out the grounds
raised by Shine.




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which was controlling at the time, “there is no automatic right to
a direct appeal from a guilty plea.” We denied Shine’s application
for a certificate of probable cause to appeal that order. See Shine
v. Tillman, Warden, S09H0126 (October 19, 2009).
       Ten years later, in 2019, Shine filed a motion for out-of-
time appeal, attempting to resurrect many of these rejected
claims and citing this Court’s opinion in Collier v. State, 307 Ga.
363 (2019) in support. 2 In that motion, Shine again argued that
his plea counsel provided constitutionally deficient performance
by failing to advise him of his appellate rights. Without holding
an evidentiary hearing, and relying on the “approach mandated
by Collier,” the trial court (Judge Simms) granted Shine’s motion
on May 14, 2020, finding it “probable beyond a reasonable doubt
that [Shine] was not advised of his right to appeal from his origi-
nal guilty plea conviction.”
       While Shine’s notice of appeal with this Court was pending,
we decided Cook v. State, 313 Ga. 471 (2022), which eliminated
the judicially created out-of-time appeal procedure and directed
that “trial court orders that have decided [out-of-time appeal] mo-
tions on the merits ... should be vacated if direct review of the case
remains pending or if the case is otherwise not final.”3 Id. at 505–


        2 Collier established that a defendant seeking an out-of-time appeal
from a guilty plea was not required to “identify the meritorious issue he would
have raised (on the existing record or otherwise) in a hypothetical appeal in
order to establish that his counsel’s deficient performance prejudiced him.” 307
Ga. at 368–69.
        3 Prior to Cook, defendants seeking out-of-time appeals were permitted
to seek this relief in either the trial court or in a habeas court. 313 Ga. at 472.
In Cook, however, this Court held that a trial court is “without jurisdiction to
decide [a] motion for out-of-time appeal” on the merits because there “is no
legal authority for motions for out-of-time appeal in trial courts.” Id. at 506.




                                        3
06. Accordingly, we vacated the trial court’s order granting
Shine’s motion for out-of-time appeal and remanded the case for
the entry of an order dismissing the motion pursuant to Cook. See
Shine v. State, S22A0439 (June 22, 2022). The trial court entered
an order to that effect on September 7, 2022.
      In response to our decision in Cook, the General Assembly
enacted OCGA § 5-6-39.1 in 2025. That statute provides:
       (a)(1) … [A] defendant may move for leave to file an
       out-of-time motion for new trial or notice of appeal
       …:

               (A) With the consent of the state;

               (B) By showing excusable neglect;

               (C) By showing that the failure to timely file
               such motion for new trial or notice of appeal
               was attributable to the deficient performance
               of such defendant’s counsel; or

               (D) For other good cause shown.

                                      …

       (b) In a criminal case, after a judgment of conviction,
       a defendant whose motion seeking an out-of-time
       motion for new trial or notice of appeal or whose
       granted out-of-time motion for new trial or notice of
       appeal was dismissed based upon the Supreme


Thus, this Court overruled our prior cases recognizing the trial court out-of-
time appeal procedure and confirmed that the habeas corpus process was the
exclusive remedy for seeking postconviction relief of this sort. Id. at 505–06.




                                      4
       Court’s decision in Cook v. State, 313 Ga. 471 (2022),
       and its progeny, shall have the right to move for
       leave to file an out-of-time motion for new trial or
       notice of appeal until June 30, 2026, pursuant to
       subsection (a) of this Code section.

       In reliance on this statute, Shine filed another motion for
out-of-time appeal on May 23, 2025 (the “2025 motion”). In that
motion, he once again contended that he was denied the effective
assistance of counsel in connection with his guilty plea because
plea counsel did not inform him “of his right to appeal his plea or
of his right to file a motion to withdraw his guilty plea.”
       On August 15, 2025, the trial court (Judge Simms) denied
Shine’s 2025 motion, concluding that Shine had not been “proce-
durally stifled” by Cook because his “claims have been heard, they
have been considered and they have been repeatedly denied as
have his repeated attempts to appeal from those orders” and that
his “duplicative claims would, then … be barred as res judicata.”
Shine timely filed a pro se notice of appeal from that order.
       1. Shine argues that the trial court abused its discretion by
denying his 2025 motion. Shine primarily relies on our decision
in Collier, 307 Ga. at 363, and the express terms of OCGA § 5-6-
39.1(a)(1)(C) to argue that he is entitled to an out-of-time appeal
because his failure to file a timely notice of appeal years earlier
was the result of his plea counsel’s deficient performance. 4 Shine


       4 Shine raises a separate argument that his motion was denied without
the trial court appointing counsel, determining whether he desired counsel, or
obtaining a valid waiver under Faretta v. California, 422 US 806 (1975). This
claim fails, however, because the trial court conducted a Faretta hearing on
October 28, 2021, and concluded that Shine wished to represent himself on




                                      5
argues that this result is mandated regardless of whether his in-
effective assistance claims – which were denied on the merits in
his first state habeas proceeding – would have been meritorious.
While the general premise of Shine’s argument is correct for
guilty pleas taken after Collier (i.e., a defendant who wishes to
appeal a post-Collier plea is not required to show that his appeal
would have merit in order to be able to pursue an out-of-time ap-
peal), that does not mean he is entitled to pursue an out-of-time
appeal from his 2006 plea or that he has otherwise satisfied the
provision of OCGA § 5-6-39.1(a)(1)(C), assuming without deciding
that this statute applies to Shine’s attempt to file an out-of-time
appeal from his guilty plea. For the reasons discussed below, we
conclude that he has not satisfied this provision and that the trial
court did not abuse its discretion in denying Shine’s motion.
       At the time that Shine entered his guilty plea in 2006, Col-
lier had not been decided, and defendants did not have an auto-
matic right to appeal in the plea context. Instead, at that time, we
had unequivocally held that a criminal defendant’s right to appeal
from a guilty plea was qualified and that such right was limited


appeal. Shine has not established that he ever re-invoked his right to be rep-
resented by counsel after he waived that right during the initial Faretta hear-
ing. The trial court, therefore, did not abuse its discretion by failing to inquire
again into Shine’s desire to represent himself for the motion for out-of-time
appeal. See United States v. Nunez, 137 FApp’x 214 (11th Cir. 2005) (where
defendant had been deemed competent to represent himself at a Faretta hear-
ing prior to his trial, the trial court had no obligation to reassess its Faretta
decision absent a “showing of a substantial change in circumstances since the
initial hearing”). See also Clay v. State, 378 Ga. App. 283, 288 (2026)
(“[B]ecause [appellant] has not established that he ever invoked his right to be
represented by counsel after he admittedly waived that right during the
Faretta hearing, the trial court did not abuse its discretion when it (under-
standably) did not inquire about … a request for counsel that never actually
happened.” (emphasis in original)).




                                        6
to those cases in which the issue on appeal could be resolved by
the facts appearing in the record at the time of the plea. See
Smith, 266 Ga. at 687 (“A criminal defendant has no unqualified
right to file a direct appeal from a judgment of conviction and sen-
tence entered on a guilty plea.”), overruled by Collier, 307 Ga. at
377; Morrow v. State, 266 Ga. 3, 3 (1995) (“[A]n appeal will lie
from a judgment entered on a guilty plea only if the issue on ap-
peal can be resolved by facts appearing in the record.”).
        Based on our precedent that applied at the time of Shine’s
plea and subsequent habeas action, Shine was unsuccessful in his
state habeas action when he alleged the same claim he is alleging
now. In that action, Shine specifically contended that he should
be allowed an out-of-time appeal because his lawyer’s deficient
performance resulted in his failure to timely exercise his right of
appeal in 2006. The habeas court expressly found that Shine had
no right to appeal at that time and that his failure to appeal was
accordingly not due to the deficient performance of his lawyer.5
In sum, Shine lost the very claim he is asserting now on the mer-
its in his state habeas action in 2009, and we declined to hear his
appeal. The habeas court’s ruling on that issue is res judicata, and
Shine is not permitted a second bite at that apple through the out-
of-time appeal procedure. See Beasley v. State, 298 Ga. 49, 50
(2015) (under doctrine of res judicata, habeas court’s prior denial
of request for relief precluded consideration of the issues raised
in motion for out-of-time appeal); Davis v. State, 287 Ga. 414, 415
(2010) (where issues defendant raised in his motion for out-of-
time appeal were “already litigated in the previous habeas pro-



       5 The habeas court also rejected Shine’s contention that he did not file
a timely motion to withdraw his guilty plea in 2006 due to the deficient perfor-
mance of his lawyer.




                                       7
ceeding,” trial court did not err in denying defendant’s motion be-
cause “matters litigated in a habeas proceeding are collaterally
estopped from being re-litigated elsewhere”); Spiller v. State, 282
Ga. 351, 352–53 (2007) (“[Defendant]’s decision to go forward with
the habeas proceeding precluded him from relitigating his inef-
fective assistance of counsel claim at the hearing on his out-of-
time motion for new trial.”).
       Moreover, even if Shine’s claim to an out-of-time appeal
was not barred by res judicata, the claim fails on the merits be-
cause Shine has not carried his burden of showing that trial coun-
sel was ineffective for failing to advise him of his right to appeal
or in failing to pursue an appeal. He cannot show, and has not
even attempted to show, that our precedent at the time of his 2006
plea gave him the right to appeal at that time. He has instead
chosen to base his argument entirely on Collier’s overruling of our
precedent in 2019. Specifically, Shine fails to show that any issue
he intends to raise on appeal could be resolved from the facts that
existed in the record at the time of his guilty plea and resulting
sentence. Thus, he has failed to show that he had a right to appeal
under our precedent as it existed in 2006 when he entered his plea
or during the 30-day appeal window that followed the entry of
that plea. As the habeas court correctly held, absent a right to
appeal at that time, his lawyer could not have been deficient in
failing to advise him of a non-existent right. For this additional
reason, the trial court did not abuse its discretion in denying
Shine’s motion. See Wheeler v. State, 269 Ga. 547, 547 (1998) (af-
firming trial court’s denial of defendant’s motion for out-of-time
appeal where defendant had “alleged only that his attorney’s in-
adequate performance was the reason why no timely appeal was
filed” and had not “set forth the questions he would raise in an
out-of-time appeal” or explained how “the questions could be re-
solved by facts in the record”). See also Smith v. State, 287 Ga.




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391, 402–03 n.5 (2010) (before a defendant can assert that his ap-
peal was untimely because plea counsel was ineffective in advis-
ing him to appeal, he must show that “the claim he want[ed] to
raise on appeal c[ould] be resolved on the face of the existing rec-
ord” and that it “would not be resolved against him” (citing Gran-
tham v. State, 367 Ga. 635, 635 (1997) and Brown v. State, 280
Ga. 658, 659 (2006))).
        In fact, Shine has failed to include in the record before us
any of the documents that would show whether an appeal in 2006
could have been resolved, favorably or not, by the facts appearing
in the record at that time pertaining to the plea. Notably, he has
failed to include in this record the plea transcript from 2006 or
any of the documents pertaining to the entry of that plea. As the
appellant, Shine has the burden to show error by the record, and
his failure to include those documents in this record is fatal to his
claim. See Williams v. State, S26A0389, slip op. at 5 (Ga. Mar. 17,
2026) (2026 WL 739103) (“It is the appellant’s burden to show er-
ror by identifying in the record the thing he challenges on appeal
and citing authority to show why that thing represents an er-
ror.”); Jacobs v. State, 306 Ga. 571, 575 (2019) (“[I]t is not this
Court’s responsibility to cull the record to find support for a de-
fendant’s claims. … Even so, our review of the record shows that
[ ]he has not proven h[is] claim.”).
       In short, Shine has failed to show that the qualified right
to appeal from a guilty plea that existed in 2006 applied to his
situation, meaning he has failed to show that he had a right to
appeal under our precedent that existed at that time. Because
Shine has failed to show that he had a right to appeal his guilty
plea under our precedent existing at the time of that plea, he can-
not show that his counsel’s failure to file a timely notice of appeal




                                 9
or advise him of that non-existent right constituted deficient per-
formance. See Momon v. State, 322 Ga. 848, 853 n.3 (2025) (when
considering whether counsel performed deficiently, “we assess ob-
jective reasonableness based on trial counsel’s perspective at the
time of trial, so we apply the law that was in effect at that time”).
As a result, Shine has failed to show that his “failure to timely file
such … notice of appeal was attributable to the deficient perfor-
mance of” his counsel, and his claim that the trial court abused
its discretion by denying his motion has no merit. See OCGA § 5-
6-39.1(a)(1)(C).
       2. Shine also attempts to challenge the habeas court’s rul-
ing in his first state habeas case, as well as this Court’s subse-
quent dismissal of his application for a certificate of probable
cause to appeal that ruling. Shine’s attempt to relitigate the ha-
beas case is meritless. He has already once attempted to appeal
the ruling in that case and was unsuccessful. He is not permitted
a second opportunity to appeal at this late date and makes no
credible argument otherwise. See OCGA § 9-14-52(a) (“[A]s to fi-
nal orders of the [habeas] court which are adverse to the peti-
tioner no appeal shall be allowed unless the Supreme Court of
this state issues a certificate of probable cause for the appeal.”).
       3. Finally, Shine contends that Judge Simms erred in pre-
siding over and deciding his 2025 motion after he had previously
recused himself from the case. We disagree.
      The record reflects that Shine’s 2019 motion for out-of-time
appeal was granted by Judge Simms. At that time, Shine raised
no concern regarding Judge Simms’s handling of the case. Rather,
he claims that Judge Simms recused himself from the case in
2020 because he had served as the district attorney during
Shine’s prosecution. Shine cites nothing to support this assertion,
and the record shows that many different judges presided over




                                 10
this case during its long history.
       Shine’s claim fails because he raises it for the first time on
appeal. Shine knew that Judge Simms was presiding over this
case in 2019 when Judge Simms granted his motion for out-of-
time appeal. At no point between Judge Simms’s issuance of that
favorable ruling and his issuance of the unfavorable ruling in
2025 giving rise to this appeal did Shine move for recusal or voice
any objection about Judge Simms presiding over the case. It was
only after he lost his 2025 motion that he raised this issue, and
then he only did so for the first time on appeal. Having failed to
raise this issue before now, Shine has not preserved this issue for
appellate review. See State v. Hargis, 294 Ga. 818, 821–23 (2014)
(“When a party learns of grounds for the potential disqualification
of the judge, he must promptly move for the recusal of the judge,
see Uniform Superior Court Rule 25.1, and if he does not, the
question of disqualification is not preserved for appellate re-
view.”). 6
       Judgment affirmed. All the Justices concur, except Warren,
P.J., not participating.




        6 Despite our conclusion that Shine has failed to preserve this issue for
appellate review, we do note that unless all parties consent, judges are prohib-
ited from presiding over cases they handled as an attorney. See OCGA § 15-1-
8(a)(3) (“No judge or Justice of any court … shall … [s]it in any case or proceed-
ing in which he has been of counsel … without the consent of all parties in
interest.”). Nothing we hold or state today should be interpreted otherwise.




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