Smith v. State, S96A0015

• Decision Date: 20 May 1996
• Docket Number: No. S96A0015,S96A0015
• Citation: 470 S.E.2d 436,266 Ga. 687
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

Page 436

470 S.E.2d 436

266 Ga. 687

SMITH v. The STATE.

No. S96A0015.

Supreme Court of Georgia.

May 20, 1996.

Marvin Smith, Reidsville, Pro Se.

William T. McBroom, III, Dist. Atty., Griffin, Michael J. Bowers, Atty. Gen., Susan V Boleyn, Senior Asst. Atty. Gen., Beth Attaway, Asst. Atty. Gen., Atlanta, for State.

Daniel A. Hiatt, Asst. Dist. Atty., Griffin.

CARLEY, Justice.

After Marvin Smith pled guilty to two counts of murder, he did not file a timely direct appeal. He subsequently filed a motion for an out-of-time appeal, contending that trial counsel rendered ineffective assistance since Smith was not informed of his right to appeal. Smith appeals from the trial court's denial of his motion for an out-of-time appeal.

An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. Lane v. State, 263 Ga. 517, 518(2), 436 S.E.2d 9 (1993). It is "the remedy for a frustrated right of appeal.... [Cit.]" Rowland v. State, 264 Ga. 872, 875(2), 452 S.E.2d 756 (1995). Accordingly, Smith's motion for an out-of-time appeal was properly denied unless he had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel.

A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However, Smith's judgments of conviction and sentences were entered after he pled guilty. A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea "only if the issue on appeal can be resolved by facts appearing in the record. [Cit.]" Morrow v. State, 266 Ga. 3, 463 S.E.2d 472 (1995). Accordingly, the denial of Smith's motion for an out-of-time appeal can be reversed "if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing." Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996).

As the movant, Smith had the burden to show a " 'good and sufficient' " reason for his entitlement to an out-of-time appeal. Rowland v. State, supra at 875(2), 452 S.E.2d 756. Smith could not meet that burden merely by showing that he was not informed of his "rights" at the guilty plea hearing, but was required to show that he actually had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel. If Smith "had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, he was not entitled to be informed of a non-existent 'right' to appeal." Morrow v. State, supra at 4, 463 S.E.2d 472. Smith could not meet his burden of proof without showing that the questions he would raise on appeal could be resolved by facts appearing in the record, including the transcript of his guilty plea hearing. Caine v. State, supra. The defendant in Morrow affirmatively failed to meet his burden because the questions he proposed to raise on appeal could not be resolved by facts appearing in the record. Smith also failed to meet his burden because he proposed no questions to raise on appeal which could be resolved by facts appearing in the record. Instead he merely asserted that he was not informed of his "right" to appeal. As has been pointed out, there is no absolute right to appeal from a judgment of conviction entered on a guilty plea.

Accordingly, Smith's failure to meet his burden of showing a good and sufficient reason for his entitlement to an out-of-time appeal requires affirmance of the trial court's denial of his motion for an out-of-time appeal.

Judgment affirmed.

All the Justices concur except BENHAM, C.J., FLETCHER, P.J., and SEARS, J., who dissent.

BENHAM, Chief Justice, dissenting.

"[T]he defendant in any criminal proceeding ... may appeal from any sentence, judgment, decision, or decree of the court...." OCGA § 5-6-33. By creating a statutory right to appeal (Thomas v. State, 260 Ga. 262, 263, 392 S.E.2d 520 (1990)), Georgia has made its appellate courts " 'an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant [Cit.]....' " Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985). In the last six months, this Court has eroded the statutory right of appeal of the criminal defendant who pleads guilty. In Morrow v. State, 266 Ga. 3, 463 S.E.2d 472 (1995), this Court determined that Morrow had no right to file an appeal; in Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996), this Court dismissed Caine's appeal in which he claimed that the counsel representing him when he pled guilty did not render effective assistance of counsel; today, this Court eviscerates the right of appeal by ruling that a guilty plea criminal defendant seeking an out-of-time appeal alleging ineffective assistance of counsel must divulge the arguments he would present on appeal as a condition precedent to being permitted to file the appeal. No other class of criminal defendant is required to make such a showing in order to obtain the statutory right of appeal, and this Court's invention of such a new procedural hurdle is a curtailment of the guilty plea criminal defendant's constitutionally-guaranteed rights of due process and equal protection. Evitts v. Lucey, supra, 469 U.S. at 393, 105 S.Ct. at 834. " 'Once the State has created a right of appeal, it must "offer such defendant a fair opportunity to obtain an adjudication on the merits of his appeal. [Cit.]" The majority has denied [Smith] such a "fair opportunity" by reducing his right of appeal to a "meaningless ritual" by precluding him from effectively asserting his appellate arguments. [Cit.]' Morrow v. State, [supra], (Sears, J., dissenting)." Caine v. State, supra at 424, 467 S.E.2d 570, Benham, C.J. dissenting.

When faced with the appeal of a guilty plea defendant, appellate review is limited to resolving the questions raised by applying the law to the facts appearing in the record. Smith v. State, 253 Ga. 169, 316 S.E.2d 757 (1984). See also Caine v. State, supra (Benham, C.J., dissenting). This holding has been used to curtail severely the issues a guilty plea defendant may raise in an appeal. See e.g., Morrow v. State, supra. What is especially ironic in the majority's treatment of the appeal before us is the fact that reference to the record and transcript of Smith's guilty plea shows that...