Robert Owenby v. State

── Robert Owenby v. State ── Court: Court of Appeals of Georgia Date: May 22, 2026 Category: General SECOND DIVISION DOYLE, P. J., DAVIS, J., and SENIOR JUDGE FULLER NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules May 22, 2026 In the Court of Appeals of Georgia A26A0673. OWENBY v. THE STATE. DAVIS, Judge. Robert Owenby appeals pro se from the trial court’s denial of his motion for an out-of-time appeal, filed under the recently enacted OCGA § 5-6-39.1, after his previous appeal from his criminal convictions was dismissed under Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022). For the following reasons, we affirm the denial of Owenby’s motion for new trial. Under our prior precedent, we reviewed a trial court’s denial of a motion for an out-of-time appeal for an abuse of discretion, Terry-Hall v. State, 312 Ga. 250, 252(1) (862 SE2d 110) (2021), and we see nothing in OCGA § 5-6-39.1 that would change our standard of review. Accordingly, we will also review the denial of Owenby’s motion for an abuse of discretion. See Shine v. State, ___ Ga. ___, Case No. S26A0283 (decided April 21, 2026) (reviewing the denial of a motion for an out- of-time appeal under OCGA § 5-6-39.1 for an abuse of discretion). The record shows that a Walker County jury convicted Owenby of two counts of aggravated assault as well as numerous related crimes, and the trial court entered a final judgment on June 6, 2019. Owenby filed a timely motion for new trial with the assistance of counsel, which was denied on January 12, 2021. Owenby did not file a notice of appeal within thirty days of that order. On June 14, 2021, Owenby’s motion- for-new-trial counsel filed a consent motion for an out-of-time appeal. In the motion, counsel represented that Owenby wished to appeal the denial of his motion for new trial, that the notice of appeal “inadvertently did not get filed in a timely fashion,” and that the State consented to the grant of an out-of-time appeal. The motion was signed by both trial counsel and the prosecution. The same day, the trial court granted the motion, and Owenby filed a notice of appeal, giving rise to appeal no. A22A0698 in this Court. While that appeal was pending, the Georgia Supreme Court rendered its decision in Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), wherein the Supreme Court ruled that a motion for an out-of-time appeal was not a valid remedy for a claim 2 that defense counsel was ineffective for failing to timely pursue an appeal. In light of Cook, we remanded Owenby’s appeal with instructions to dismiss the motion for out- of-time appeal for lack of jurisdiction. In 2025, the Georgia Legislature passed OCGA § 5-6-39.1, codifying the right for a criminal defendant to file a motion for an out-of-time appeal, effective May 14, 2025. See Ga. L. 2025, p. 621, § 1-3. On or about July 7, 2025, Owenby filed a pro se motion for an out-of-time appeal pursuant to OCGA § 5-6-39.1. At an evidentiary hearing, Owenby appeared pro se1 and did not offer any additional evidence but instead relied on the previous motion for an out-of-time appeal to support his contention that his trial counsel’s performance prevented him from pursuing a timely appeal. In response, the State argued that it no longer consented to granting Owenby 1 We note that OCGA § 5-6-39.1(a)(3) relevantly provides that “[a]n indigent defendant shall have the right to the assistance of counsel to seek any relief offered under this Code section.” There are many indications in the record that Owenby may be indigent, such as the fact that, at times during his criminal proceedings, Owenby was represented by the p