Shelton v. the State.

• Decision Date: 24 January 2011
• Docket Number: No. A10A2191.,A10A2191.
• Citation: 705 S.E.2d 699,307 Ga.App. 599
• Parties: SHELTONv.The STATE.
• Court: Georgia Court of Appeals

307 Ga.App. 599
705 S.E.2d 699
11 FCDR 170

SHELTON
v.
The STATE.

No. A10A2191.

Court of Appeals of Georgia.

Jan. 24, 2011.

[705 S.E.2d 700]

Lorenzo Shelton, pro se.Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.MILLER, Presiding Judge.

[307 Ga.App. 599] Lorenzo Shelton pled guilty to aggravated assault with intent to rape (OCGA § 16–5–21(a)(1)) and kidnapping (OCGA § 16–5–40(a)) on February 2, 2007. He was sentenced to 20 years on each count to be served consecutively, for a total of 40 years imprisonment. More than three years later, on March 4, 2010, Shelton filed a pro se “Motion for Out–of–Time Appeal to Vacate Void Sentence,” contending (i) that his counsel rendered ineffective assistance. Specifically, he also alleges (ii) that his guilty pleas were

[705 S.E.2d 701]

accepted in violation of the constitutional prohibition against double jeopardy; (iii) that his sentence was void since the indictment failed to allege the essential [307 Ga.App. 600] elements of the offenses; and (iv) that the alleged asportation was insufficient to support the kidnapping conviction under the Garza ¹ test. The trial court denied the motion, from which Shelton appeals. For the reasons explained below, we affirm.

The factual basis ² for Shelton's guilty plea reflected that on September 22, 2006 at 3:00 a.m., the female victim was doing laundry at a laundromat facility. Shelton entered the facility and approached the victim. Shelton then grabbed the victim and dragged her from the front of the facility to a bathroom in the back of the facility. While holding the victim in the bathroom for approximately 40 minutes, Shelton sexually assaulted the victim and had forcible sexual intercourse with the victim against her will.

The laundromat facility was equipped with a video camera that recorded portions of Shelton's attack against the victim. The victim also was able to give a detailed description of Shelton as the attacker. Shelton was subsequently arrested and charged with the aggravated assault and kidnapping offenses.

Shelton pled guilty to the offenses and admitted that he had committed the acts as set forth in the factual basis described by the State. After serving three years of his forty–year sentence, Shelton filed a motion for an out-of-time appeal, which the trial court denied.

1. Shelton contends that the trial court erred in denying his motion for an out-of-time appeal based upon his claims of ineffective assistance of counsel. We discern no error.

“In order for an out-of-time appeal to be available to a defendant on the basis of alleged ineffective assistance of counsel, the defendant must have had the right to file a direct appeal.” Stewart v. State, 268 Ga. 886, 887, 494 S.E.2d 665 (1998). Following the entry of a guilty plea, “a direct appeal will lie only if the issue on appeal is capable of resolution by reference to facts on the record.” Id. See also Grantham v. State, 267 Ga. 635, 481 S.E.2d 219 (1997); Olguin v. State, 296 Ga.App. 208, 209, 674 S.E.2d 89 (2009).

[W]here a defendant appeals a guilty plea on the grounds of ineffective assistance of counsel, the issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing. Accordingly, the defendant may not file a [307 Ga.App. 601] direct appeal where the only evidence in the record is the transcript of the guilty plea hearing.

(Citations and punctuation omitted.) Olguin, supra, 296 Ga.App. at 209, 674 S.E.2d 89.

Here, Shelton contends that his counsel was ineffective in his representation and provided misinformation to induce his guilty plea. Under these circumstances, Shelton's claims could not be resolved by reference to facts contained in the record and must be developed in a post-plea hearing. Consequently, the trial court did not err in denying the motion for an out-of-time appeal; Shelton's remedy must be pursued in a habeas corpus action. See Coleman v. State, 278 Ga. 493, 494(2), 604 S.E.2d 157 (2004); Stewart, supra, 268 Ga. at 887, 494 S.E.2d 665; Grantham, supra, 267 Ga. at 636, 481 S.E.2d 219; Olguin, supra, 296 Ga.App. at 209, 674 S.E.2d 89.³

[705 S.E.2d 702]

2. Shelton also contends that his guilty pleas were accepted in violation of the constitutional prohibition against double jeopardy because the aggravated assault and kidnapping offenses should have been merged as a matter of law and fact.⁴ Shelton's contention is without merit.⁵

“For a kidnapping conviction, the state must prove an unlawful asportation of a person against his will. OCGA § 16–5–40[ (a) ]. For a conviction on a charge of aggravated [307 Ga.App. 602] assault with intent to rape, the state must show that appellant assaulted the victim with the intent to rape her. See OCGA § 16–5–21(a)(1).” (Citation and punctuation omitted.) Strozier v. State, 171 Ga.App. 703, 705–706(4), 320 S.E.2d 764 (1984). In setting forth the factual basis for the plea, the State asserted that Shelton had dragged the victim from the front of the laundromat facility into a bathroom in the back of the facility, which formed a basis for the kidnapping charge. The State further asserted that Shelton had sexually assaulted the victim while holding her in the bathroom, which formed a basis for the aggravated assault with the intent to rape charge. Shelton admitted that the incident had occurred as described by the State.

Since each of the offenses was separate and required proof of different facts, they did not merge as a matter of law or fact. See McGuire v. State, 266 Ga.App. 673, 678(3), 598 S.E.2d 55 (2004); Strozier, supra, 171 Ga.App. at 705–706(4), 320 S.E.2d 764. See also Drinkard v. Walker, 281 Ga. 211, 215, 636 S.E.2d 530 (2006) (adopting the “required evidence” test for the determination of merger issues). It thus follows that “[u]nder the circumstances of this case, the same conduct [was] not being punished twice nor [was] one act included in the other so as to proscribe the separate conviction and punishment for each act.” (Citations and punctuation omitted.) Strozier, supra, 171 Ga.App. at 706(4), 320 S.E.2d 764.

3. Shelton further contends that his motion should have been granted since his sentence was void. His contention is without merit.

(a) “A sentence is void if the court imposes punishment that the law does not allow. When the sentence imposed falls within the statutory range of punishment, the sentence is not void[.]” (Citations and punctuation omitted.) Jones v. State, 278 Ga. 669, 670, 604 S.E.2d 483 (2004). Upon Shelton's entry of the guilty plea to aggravated assault and kidnapping, the trial court accepted the State's recommendation and sentenced Shelton to 20 years for each offense, to be served consecutively for a total of 40 years imprisonment. The offenses of aggravated assault and kidnapping both carried maximum sentences of 20 years. See OCGA §§ 16–5–21(b)(2007); 16–5–40(b)(1)(2007). Since Shelton's sentence fell within the statutory range, it was not void. See Worley v. State, 265 Ga. 251, 252(1), 454 S.E.2d 461 (1995) (“OCGA § 17–10–1 authorizes a trial judge to sentence a defendant within limits prescribed by the applicable criminal statute.”); Baez v. State, 257 Ga.App. 129, 130, 570 S.E.2d 352 (2002) (discerning no merit in a defendant's untimely attempt to seek modification of his...