Campos v. State
| Decision Date | 19 November 2012 |
| Docket Number | No. S12A1639.,S12A1639. |
| Citation | 292 Ga. 83,734 S.E.2d 359 |
| Parties | CAMPOS v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Sandro Campos, Waycross, for appellant.
Herbert McIntosh Poston, Jr., Dist. Atty., Mark Patrick Higgins, Jr., Asst. Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, for appellee.
Sandro Campos, pro se, appeals the denial of his motion for an out-of-time appeal, following his entry of a plea of guilty to malice murder for the 2004 fatal shooting of Henry Jayaprakasham, and Campos's resulting sentence of life in prison. For the reasons which follow, we affirm.
In February 2005, a Whitfield County grand jury returned a six-count indictment against Campos: Count (1)—malice murder; Count (2)—armed robbery; Count (3)—felony murder while in the commission of armed robbery; Count (4)—aggravated assault; Count (5)—felony murder while in the commission of aggravated assault; and Count (6)—possession of a firearm during the commission of a crime. Campos entered into an agreement with the State, whereby he would plead guilty to Count (1) and be subject to a life sentence and orders of nol prosequi would then be entered as to the remaining counts. On October 4, 2005, a plea and sentencing hearing was held at which Campos entered his negotiated guilty plea to malice murder, and he was sentenced to life in prison. In March 2012, he filed a pro se “Motion for Out–Of–Time Appeal and Request for Evidentiary Hearing on the Issue of Ineffective Assistance of Counsel,” alleging that his attorney's representation was not effective because the attorney did not file a “pre-plea entry demurrer to ‘quash’ the fatally defective indictment of the case,” and that his guilty plea was not knowing and voluntary because the superior court failed to advise him of his rights prior to his entry of the plea. Campos asked, inter alia, that the indictment against him be dismissed and that he be allowed to withdraw his guilty plea. On April 20, 2012, the superior court entered the ruling at issue, dismissing as untimely Campos's motion to the extent that it could be construed as a motion to withdraw his guilty plea, and denying the remaining portions of the motion, which alleged the defectiveness of the indictment and the ineffectiveness of plea counsel based principally upon the claim that, prior to his plea, Campos was not advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
First, it is well settled that a trial court lacks jurisdiction to allow a defendant to withdraw a guilty plea when the term of court has expired in which the defendant was sentenced; thereafter, the only available means to withdraw the plea is through habeas corpus proceedings. Loyd v. State, 288 Ga. 481, 484(2)(a), 705 S.E.2d 616 (2011). Thus, insofar as Campos's motion was a petition to withdraw his plea, the trial court was correct in ruling that it was untimely.
If Campos's motion is construed as one seeking an out-of-time appeal, the denial of such a motion is a matter within the discretion of the trial court, and the denial will not be overturned absent an abuse of that discretion. Brown v. State, 290 Ga. 321(1), 720 S.E.2d 617 (2012). A criminal defendant does not have an unqualified right to a direct appeal from a judgment of conviction and sentence entered on a guilty plea; in such situation, a direct appeal will lie only if the issue on appeal can be resolved by facts appearing in the record. Leverette v. State, 291Ga. 834, 732 S.E.2d 255 (2012). An out-of-time appeal is appropriate when a direct appeal was not pursued as the result of the ineffective assistance of counsel; however, for an out-of-time appeal to be available on this basis, the defendant must have had the right to file a direct appeal, and as noted, a direct appeal from a judgment of conviction and sentence entered on a guilty plea can be had only if the resolution of the issue on appeal can be accomplished by reference to facts on the record. Johnson v. State, 286 Ga. 432, 687 S.E.2d 833 (2010). Thus, any issue of the effectiveness of counsel is not reached unless the appeal can be resolved by reference to facts on the record. Id. Furthermore, if the assertions of error can be decided on the basis of the existing record and are found to be without merit, there is no abuse of the trial court's discretion in denying a motion for an out-of-time appeal....
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