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Defendant entered negotiated pleas of guilty to charges of murder and possession of a firearm by a convicted felon. Defendant appealed from the trial court's denial of his out-of-time appeal. The court held that defendant was not entitled to an out-of-time appeal for his contention that the indictment was void for failing to allege what instrument was used to shoot the victim where the indictment was not lacking an essential element of the crime of malice murder; for defendant's challenge that the indictment was void because the name of the grand jury foreman and the date of offense as to Count II were altered where the claims were not supported by the record; for defendant's claim that the trial court failed to swear him in prior to his guilty plea where the issue could be decided against him on the existing record; and for his claims of ineffective assistance of counsel because such claims could not be resolved on the facts appearing in the record. Accordingly, his remedy was to file a petition for habeas corpus; the trial court was not required to hold an evidentiary hearing on the issues raised; and defendant was not entitled to the appointment of counsel on his motion for out-of-time appeal.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
January 9, 2012
S11A1469. BROWN v. THE STATE.
Appellant Michael Brown appeals from the trial court’s denial of his
motion for out-of-time appeal. For the reasons that follow, we affirm.
On September 16, 1993, appellant entered negotiated pleas of guilty to
charges of murder and possession of a firearm by a convicted felon. Pursuant
to the agreement, he was sentenced to life in prison on the murder charge and
a concurrent five-year term in prison on the possession charge. On June 4,
2010, appellant filed a motion for out-of-time appeal which the trial court denied
on December 16, 2010. This appeal followed.
1. It is well established that a criminal defendant has “‘no unqualified
right to file a direct appeal from a judgment of conviction and sentence entered
on a guilty plea,’” and “‘an appeal will lie from a judgment entered on a guilty
plea only if the issue on appeal can be resolved by facts appearing in the
record.’” Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007). “The ability
to decide the appeal based on the existing record thus becomes the deciding
factor in determining the availability of an out-of-time appeal when the
defendant has pled guilty.” Grantham v. State, 267 Ga. 635 (481 SE2d 219)
(1997). The denial of a motion for out-of-time appeal is a matter within the
discretion of the trial court. A court’s decision to deny such a motion will not
be overturned absent an abuse of discretion. Moore v. State, 285 Ga. 855 (1)
(684 SE2d 605) (2009).
2. Appellant contends he was entitled to an out-of-time appeal because
his indictment was void for failing to allege what instrument was used to shoot
the victim. However, where an issue raised by a defendant in a motion for
out-of-time appeal can be resolved against him based upon the existing record,
there is no error in denying the motion. Brown v. State, 280 Ga. 658, 659 (631
SE2d 687) (2006). The indictment in this case alleges appellant did “with
malice aforethought cause the death of Eric Patterson, a human being, by
shooting him.” These allegations were sufficient to place appellant on notice
that he was being charged with causing the death of the victim by shooting him
with a firearm. See OCGA § 16-5-1 (a); Morgan v. State, 275 Ga. 222 (9) (564
SE2d 192) (2002). The indictment was not lacking an essential element of the
crime of malice murder and the court, therefore, did not err in denying the
motion for out-of-time appeal on this ground. See Golden v. State, 299 Ga.
App. 407, 407 (683 SE2d 618) (2009) (even where issue can be resolved by
reference to record, defendant not entitled to out-of-time appeal where record
shows those issues must be resolved against him).
3. Similarly, appellant’s claim that the indictment was void because the
name of the grand jury foreman and the date of offense as to Count II were
altered is not supported by the record. The indictment identifies “Norris E.
Dow” as the grand jury foreman and the indictment appears to be signed by
“Norris E. Dow.” The prosecutor’s handwritten date change in Count II of the
indictment prior to its presentation to the grand jury did not render the
indictment void. Compare Fleming v. State, 276 Ga. App. 491, 493-494 (623
SE2d 696) (2005). Again, because appellant’s challenges to the indictment can
be decided against him on the existing record, it was not an abuse of discretion
to deny the motion for out-of-time appeal on these grounds.
4. Appellant’s claim that he was entitled to an out-of-time direct appeal
because the trial court failed to swear him in prior to his guilty plea can also be
decided against him on the existing record. Even assuming an obligation to
place a criminal defendant under oath before accepting a plea, a review of the
plea hearing transcript establishes that no objection to appellant’s unsworn
testimony was made at the time the testimony was given. Appellant, therefore,
waived any objection he may have had to the court’s failure to place him under
oath. See Sweeting v. State, 291 Ga. App. 693, 694-695 (662 SE2d 785) (2008)
(defendant waived objection to failure to place him under oath by failing to raise
the issue at guilty plea hearing and proceeding to enter guilty plea); Gilbert v.
State, 245 Ga. App. 544, 545 (538 SE2d 104) (2000) (guilty plea waives any
objection to admissibility of testimony bearing on defendant's conviction).
5. Appellant was not entitled to an out-of-time appeal for his claims of
ineffective assistance of counsel because such claims cannot be resolved on the
facts appearing in the record. His remedy is to file a petition for habeas corpus.
Moore, supra, 285 Ga. at 858 (3) (direct appeal cannot be taken from guilty plea
on ground of ineffective assistance unless issue can be resolved by reference to
facts on record); Barlow, supra, 282 Ga. at 233-234; Coleman v. State, 278 Ga.
493 (2) (604 SE2d 157) (2004).
6. For the reasons stated above, the trial court was not required to hold an
evidentiary hearing on the issues raised. See Upperman v. State, 288 Ga. 447
(2) (705 SE2d 152) (2011). Nor was appellant entitled to the appointment of
counsel on his motion for out-of-time appeal. See Burroughs v. State, 239 Ga.
App. 600 (2) (521 SE2d 652) (1999).
Judgment affirmed. All the Justices concur, except Hunstein, C. J., who
concurs in judgment only.