Clark v. State: Judicial Discretion to Validate Timely Pro Se Notices of Appeal Filed While Counsel of Record Remains

Introduction

Clark v. State, decided by the Supreme Court of Georgia on 10 June 2025, stems from the fatal shooting of Alton Cotton on 22 February 2020. Dereckson Clark was indicted for malice murder, felony murder, aggravated assault and possession of a firearm during the commission of a felony. After a June 2021 jury trial in Peach County, he was convicted and sentenced to life imprisonment with parole eligibility plus a consecutive five-year term.

On appeal Clark advanced three principal errors:

• That the trial court’s preliminary instruction describing the grand-jury process constituted plain error.
• That the court wrongly excluded portions of his prior testimony (offered as a prior consistent statement).
• That trial counsel was constitutionally ineffective for failing to seek removal of a juror who twice left for medical reasons.

Before reaching these enumerations, the Court confronted a jurisdictional wrinkle: Clark’s counsel failed to file a notice of appeal; Clark himself—while still represented—filed a timely pro se notice. Whether that filing preserved appellate jurisdiction became the threshold issue, and the Court squarely held that it would exercise discretion to recognize such a notice in the circumstances presented.

Summary of the Judgment

1. Appellate Jurisdiction preserved. Relying on Johnson v. State (2023), the Court affirmed that it may, in the interests of justice, accept a procedurally proper pro se notice of appeal filed while counsel of record remains. It therefore reached the merits.
2. No plain error in grand-jury instruction. Because no authority deems the challenged language erroneous and the instruction was balanced by presumption-of-innocence and burden-of-proof charges, the second prong of plain-error analysis failed.
3. Exclusion of prior testimony harmless. Even assuming exclusion was error, the testimony was otherwise elicited and cumulative; given overwhelming evidence of guilt, no substantial right was affected.
4. No ineffective assistance. Counsel’s strategic decision not to seek removal of a juror with a bladder condition was reasonable; Clark showed neither deficient performance nor prejudice.
5. Convictions affirmed.

Analysis

1. Precedents Cited

• Johnson v. State, 315 Ga 876 (2023). Established that a pro se filing by a represented defendant is not automatically void; courts have discretion to honor it. Clark extends Johnson by demonstrating practical application where the notice of appeal preserved rights otherwise forfeited.
• Kelly v. State, 311 Ga 827 (2021). Emphasized mandatory nature of a timely notice of appeal for jurisdiction.
• Shadron v. State, 275 Ga 767 (2002) & Bostic v. State, 184 Ga App 509 (1987). Upheld trial-court explanations of the grand-jury process when paired with correct burden-of-proof instructions.
• State v. Kelly, 290 Ga 29 (2011); Hill v. State, 310 Ga 180 (2020); Harris v. State, 313 Ga 872 (2022). Provide the four-part standard for plain-error review.
• Strickland v. Washington, 466 U.S. 668 (1984). Governs ineffective-assistance claims (deficient performance + prejudice).
• Williams v. State, 302 Ga 147 (2017); Smith v. State, 309 Ga 240 (2020). Outline preservation rules where evidence is excluded and later challenged on a different theory.

2. Legal Reasoning

a. Recognition of the Pro Se Notice of Appeal

The Court framed the issue as one of judicial discretion rather than automatic nullity. Key factors:

• The notice was timely and facially compliant with O.C.G.A. §5-6-38.
• Clark acted diligently to protect his appellate rights when counsel failed to do so.
• The trial court made explicit findings that Clark neither waived counsel nor invoked self-representation.
• Recognizing the notice preserved a constitutional right that would otherwise be lost “through no fault of the defendant,” satisfying the “furtherance of justice” rationale flagged in Johnson.

Importantly, the Supreme Court clarified that appellate, not trial, courts ultimately decide whether to honor such filings, but trial courts should create a record to assist that exercise of discretion.

b. Grand-Jury Instruction & Plain Error

Because Georgia precedent never deemed the challenged instruction erroneous, error could not be “obvious” under plain-error step two. The Court also contextualized the remarks within broader charges emphasizing presumption of innocence and proof beyond a reasonable doubt, foreclosing any serious risk of juror confusion.

c. Exclusion of Prior Testimony

Assuming arguendo that exclusion contravened the prior-consistent-statement rule (O.C.G.A. §24-8-801(d)(1)(A)), the Court found no substantial harm. The content was presented through live testimony; thus, the excluded reading would merely duplicate what the jury already heard.

d. Ineffective Assistance

The Court credited counsel’s strategic preference to keep the juror, noting pauses accommodated the medical need. Under the strong Strickland presumption, such tactical choices are practically unassailable absent extreme unreasonableness—here, none was shown.

3. Potential Impact

• Appellate Practice. Clark concretizes the discretionary framework of Johnson, signaling to practitioners that a timely pro se notice can rescue an appeal where counsel is silent—provided the record supports diligence and absence of waiver.
• Trial-Court Record-Building. Trial judges are advised to create explicit findings when a represented defendant makes a pro se filing, facilitating later appellate review.
• Jury-Instruction Challenges. Litigants are reminded that objections must be contemporaneously lodged; absent precedent labeling language erroneous, plain-error relief is unlikely.
• Evidentiary Preservation. Counsel must articulate the specific theory of admissibility when evidence is excluded; otherwise, appellate courts may find the argument waived.
• Ineffective-Assistance Claims. The case reinforces deference to strategic jury-management decisions, especially those grounded in observed juror demeanor and medical accommodations.

Complex Concepts Simplified

• Pro Se Filing: A legal document a party files on their own behalf, without a lawyer’s signature.
• Notice of Appeal: The jurisdictional document that transfers a case from trial court to appellate court; must be filed within 30 days in Georgia criminal cases.
• Plain Error Review: A four-step appellate test allowing reversal for unobjected-to errors only if the error is obvious, affects the outcome, and undermines the integrity of proceedings.
• Prior Consistent Statement: Evidence rule permitting a witness’s earlier consistent statement to rebut charges of recent fabrication or improper influence.
• Strickland Test: Requires (1) deficient performance (outside professional norms) and (2) prejudice (reasonable probability of different result).

Conclusion

Clark v. State does not disturb the underlying conviction, but it meaningfully advances Georgia appellate jurisprudence by demonstrating how courts should handle timely pro se notices of appeal filed when counsel remains on record. By validating such filings where necessary to prevent forfeiture of rights, the Court underscores its commitment to the “furtherance of justice” while maintaining the structured discretion announced in Johnson. In addition, the case provides fresh guidance on plain-error jury-instruction review, evidentiary-preservation pitfalls, and the high bar for ineffective-assistance claims rooted in juror-management strategy. Collectively, these clarifications strengthen procedural safeguards and offer valuable roadmaps to trial counsel, appellate advocates, and trial judges alike.