Johnson v. State
| Decision Date | 01 February 2010 |
| Docket Number | No. S09A1759.,S09A1759. |
| Citation | 286 Ga. 432,687 S.E.2d 833 |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Supreme Court |
Charles Johnson, Jr., pro se.
Richard R. Read, Dist. Atty., Debra M. Sullivan, Roberta A. Earnhardt, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., for appellee.
During a jury trial, Charles Johnson, Jr., pled guilty to felony murder, aggravated assault, family violence battery, cruelty to children in the third degree, and arson in the first degree.1 Johnson appeals pro se contending that the trial court erred in denying his motion for an out-of-time appeal. Finding no error, we affirm.
Johnson contends that, because he did not enter his guilty plea freely and voluntarily, and because Count 3 of his indictment (charging him with aggravated assault) was void, the trial court erred in denying his motion for an out-of-time appeal. In evaluating Johnson's claims, we must keep in mind 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. 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. . . . An out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel. But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. 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. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.
(Citations and punctuation omitted.) Barlow v. State, 282 Ga. 232, 233, 647 S.E.2d 46 (2007). "The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court and the court's decision will not be reversed absent an abuse of that discretion." (Citation omitted.) Moore v. State, 285 Ga. 855, 856(1), 684 S.E.2d 605 (2009).
Here, the record reveals that Johnson began his jury trial on October 17, 2006. By October 18, nine witnesses had testified for the State, including Johnson's daughter, who testified that Johnson had punched her in the face and forced her into a closet on the night that her mother was murdered, and directly implicated Johnson in the strangulation death of her mother on that same night. During a court recess, Johnson and his lawyer discussed the propriety and wisdom of entering a guilty plea to the charges against him. Upon returning from the recess, Johnson entered a guilty plea to felony murder, aggravated assault, family violence battery, cruelty to children in the third degree, and arson in the first degree, acknowledging, under oath, that he had completed the "Plea of Guilty: Acknowledgment and Waiver of Rights" form and had answered all of the questions on the form truthfully. Johnson's lawyer certified in writing that he had reviewed all of the questions on the form with Johnson, and that he was satisfied that Johnson understood all of the rights that he was waiving. The trial judge verified that Johnson could read and write and that Johnson was not under the influence of any drugs or alcohol, and explained to Johnson that in signing the plea form he was waiving all of the rights contained therein. The trial judge specifically reminded Johnson that he would be waiving his right to complete the jury trial that had already begun, and Johnson verified that he understood what he was doing, that he was entering his plea freely and...
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