Bennefield v. State, S18A1410

• Decision Date: 10 September 2018
• Docket Number: S18A1410
• Citation: 819 S.E.2d 10,304 Ga. 491
• Parties: BENNEFIELD v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 491

819 S.E.2d 10

BENNEFIELD

v.The STATE.

S18A1410

Supreme Court of Georgia.

Decided: September 10, 2018

Michael Bennefield, GDC# 768180, Wheeler Correctional Facility, 195 N. Broad Street, Alamo, Georgia 30411, for Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Kevin Christopher Armstrong, FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Appellee

Boggs, Justice.

Appellant Michael Bennefield appeals from the trial court's denial of his motion for an out-of-time appeal of his 1993 convictions based on his guilty plea to the murder of Erika Darby, the rape and armed robbery of Demetras Turner, and the rape of Judy Bryant. Even assuming Bennefield had a proper excuse for failing to file a timely appeal, the record reveals that he is not entitled to an out-of-time appeal. We therefore affirm.

1. The State presented the following factual basis for Bennefield's plea: On November 15, 1990, Demetras Turner was on her way to a bus stop when Bennefield accosted her at knifepoint, took her into a wooded area, and raped her. He also robbed Turner of $43. On November 19, 1990, Judith Bryant was on her way to a bus stop when Bennefield took her to a wooded area where he raped and robbed her. And six days later, on November 25, 1990, Bennefield assaulted Erika Darby, as she was on her way to a bus stop, and took her into a wooded area, where he stabbed her 14 times. Darby died from her injuries.

On January 29, 1991, Bennefield was indicted on two counts of rape and one count each of armed robbery and murder. On November 1, 1993, he entered a negotiated guilty plea, and the court sentenced him to life on the murder count, life on each rape count, and 20 years on the armed robbery count—all to be served concurrently. Bennefield filed no motion to withdraw his guilty plea nor did he file a timely appeal. He did, however, in 2012, file a petition for habeas corpus which the trial court dismissed as untimely. On May 6, 2014, Bennefield filed an application for a certificate of probable cause to appeal the dismissal, which this Court denied on December 11, 2014.

On June 1, 2015, Bennefield filed a pro se "Motion to Grant Leave of Court for an Out-of-Time Appeal." Bennefield asserted, among other things, that, if not for his plea counsel's misrepresentations, he would not have pled guilty and that the indictment failed to inform him of the specific acts that he supposedly committed. The trial court denied Bennefield's motion on March 27, 2018, and he now appeals.

2. Bennefield contends that there was no inquiry made by the trial court into who bore the responsibility for his failure to pursue a timely appeal and that during the plea hearing he was informed he could not appeal and could only pose a challenge to the severity of his sentence to the Sentence Review Panel. It is true that

before being entitled to an out-of-time appeal, a defendant must allege and prove an excuse of constitutional magnitude for failing to file a timely direct appeal, which usually is done by showing that the delay was caused by his trial counsel's ineffective assistance in providing advice about or acting upon an appeal.

(Citations and punctuation omitted.) Deloney v. State, 302 Ga. 142, 145 (2), 805 S.E.2d 881 (2017). But pretermitting whether Bennefield has shown a proper excuse for not filing a timely appeal, the record shows that he is not entitled to an out-of-time appeal.

[A] defendant is entitled to a timely appeal from a conviction entered on a guilty plea only to the extent that the issues presented on appeal can be resolved by reference to the existing record. Thus, if the claims that a defendant belatedly seeks to raise on appeal require factual development, an out-of-time appeal is unavailable. Moreover, if the claims that the defendant seeks to raise on appeal can be resolved by reference to facts in the existing record, he must show that the claims would be resolved in his favor, or an out-of-time appeal is properly denied.

(Citations and punctuation omitted.) Id. (a) Bennefield argues that his plea was not knowing and voluntary because the nature of the charges was never read into the record, he was not thoroughly informed of the elements and nature of the charges, and the trial court failed to inform him on the record of the terms of the plea agreement, as required by former Uniform Superior Court Rule 33.8 (C) (1).¹ He argues further that he was not informed of his right against compulsory self-incrimination.

The transcript of the plea hearing reveals that Bennefield's counsel waived formal reading of the indictment. However, the prosecutor read the charges and presented the factual basis for the plea. Bennefield affirmed that he had had an opportunity to discuss the facts and circumstances of the case and the indictment with his counsel.

With regard to his claim that the trial court failed to comply with the former Uniform Superior Court Rule, "the salient inquiry is ... whether the record, as a whole, affirmatively shows that the plea in question was knowing and voluntary. And, the record shows that the guilty plea substantially complied with the applicable uniform rules." (Citations omitted.) Lewis v. State, 293 Ga. 544, 547 (1), 748 S.E.2d 414 (2013). Before Bennefield's counsel asked the court to accept the State's recommended sentence in exchange for the guilty plea, Bennefield affirmed he understood that

certain pretrial negotiations have been entered into between your attorneys and the district attorney's office. ... As a result of those negotiations, the district attorney's office is prepared to make a recommendation to the judge, but the judge is not bound by their recommendation ... and could sentence you to life in prison on each count of th[e] bill of indictment[.]

And in addition to affirming that he had discussed the facts and circumstances of the case with counsel, Bennefield stated that no one threatened or coerced him into entering a plea, he understood he was giving up certain rights by pleading guilty, and his plea of guilty was freely and voluntarily entered.

The record also reveals that Bennefield was informed of the constitutional rights he was waiving by pleading guilty, including the privilege against self-incrimination. See Lejeune v. McLaughlin, 299 Ga. 546, 546 n.2, 789 S.E.2d 191 (2016) ("These rights include the privilege against compulsory self-incrimination, the right to trial by jury, and the right of confrontation. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)."). The prosecutor asked Bennefield if he understood that

by pleading guilty you are giving up certain rights, and among those is your right to trial by jury. At a jury trial you would have the right to be represented by an attorney. ... You would have the right to call witnesses to testify for you, you would have the right to testify on your own behalf, and no one could force you to testify. You would have the right to cross-examine any witnesses that the State produced to

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