Towns v. State, A97A1044
| Decision Date | 27 August 1997 |
| Docket Number | No. A97A1044,A97A1044 |
| Citation | 228 Ga.App. 267,491 S.E.2d 497 |
| Parties | , 97 FCDR 3274 TOWNS v. The STATE. |
| Court | Georgia Court of Appeals |
J. Robert Joiner, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Juliette O.W. Scales, Assistant District Attorney, for appellee.
Pursuant to permission granted by the trial court, Dana Towns brings this out-of-time appeal from the judgment entered on his pleas of guilty to the offenses of burglary and theft by taking.
1. Although not raised by the parties, we first consider whether the trial court properly granted an out-of-time appeal. The trial court is authorized to grant an out-of-time appeal where the defendant's failure to file a timely direct appeal was due to ineffective assistance of counsel. Grantham v. State, 267 Ga. 635, 481 S.E.2d 219 (1997); Morrow v. State, 266 Ga. 3, 463 S.E.2d 472 (1995). In this regard, the Supreme Court has recognized that the right to effective assistance of counsel includes the defendant's right to be informed of: (1) the right to appeal (including the right to appeal from a plea of guilty as to questions which can be resolved by reference to facts in the record), (2) the right to counsel on appeal (including the right to appointed counsel for indigent defendants), and (3) the dangers of proceeding without counsel. Cochran v. State, 253 Ga. 10, 315 S.E.2d 653 (1984); Smith v. State, 253 Ga. 169, 316 S.E.2d 757 (1984).
The record reflects that Towns is indigent and that, after being fully informed as to his right to appointed counsel to represent him during the trial of the case and being given appointed counsel, he discharged his appointed counsel, waived that right and elected, against the advice of the trial court, to proceed pro se during the pre-trial proceedings and during the entry of his guilty pleas prior to trial. See Bentley v. Willis, 247 Ga. 461, 462-463, 276 S.E.2d 639 (1981). However, it does not appear from the record of the proceedings that Towns was informed of his right to appeal, his right to appointed appellate counsel, or the dangers of proceeding without appellate counsel. The record further reflects that, after the time for a timely direct appeal had expired, the trial court appointed appellate counsel to represent Towns, and counsel moved the court for an out-of-time appeal. Under these circumstances, the trial court properly granted the out-of-time appeal. Bell v. Hopper, 237 Ga. 810, 811, 229 S.E.2d 658 (1976).
2. Towns claims that, because the trial court led him to believe that his speedy trial demand was pending and valid, his subsequent guilty plea was not intelligently made.
When the case was called for trial, the State announced ready, and Towns said he was not ready for a variety of reasons. A discussion ensued between the trial court, the prosecutor, and Towns in which the trial court reminded Towns that he had refused appointed counsel against the advice of the court and had filed a speedy trial demand pursuant to OCGA § 17-7-170 indicating he wanted the case tried. After the trial court told Towns that he could not select appointed counsel of his choice and that the case would not be continued, Towns indicated his willingness to talk to the prosecutor about a guilty plea. Towns subsequently entered a plea of guilty to both counts of the indictment.
Towns contends that, because the record shows his speedy trial demand was not filed during the court term at which the indictment was filed, or during the next succeeding regular court term, or by special permission of the court, it was not valid under OCGA § 17-7-170(a) and was not a basis to require that the State try the case. Apparently, he contends the trial court's comments about the demand misled him and rendered his subsequent guilty plea involuntary. Even if the speedy trial demand was not timely filed, neither that fact nor anything the trial court said to Towns about the demand had any bearing on his subsequent guilty plea. There was no error.
3. Towns contends there was an insufficient factual basis to support the guilty pleas.
Uniform Superior Court Rule (USCR) 33.9 requires that the trial court subjectively satisfy itself on the record that there is a factual basis for a guilty plea before entering judgment on the plea. State v. Evans, 265 Ga. 332, 333-335, 454 S.E.2d 468 (1995). "[T]he record of the plea hearing must reveal the factual basis relied on so that a reviewing court may determine whether an abuse of discretion occurred." Green v. State, 265 Ga. 263, 264, 454 S.E.2d 466 (1995).
The record of the plea hearing shows that, prior to the court's acceptance of the guilty pleas by Towns, the prosecutor gave a description of evidence supporting the burglary charge and the theft charge. The indictment charged that Towns committed burglary by unlawfully entering the dwelling house of Bennette Arnold with the intent to commit a theft and charged him with committing theft on the same day by unlawfully taking Arnold's automobile. The plea hearing record shows that, in taking Towns' guilty pleas, the prosecutor stated on the record that he was charged in the indictment "with burglary and theft by taking auto." The prosecutor offered to read the indictment, but Towns replied that, "It is not necessary." The prosecutor stated that Arnold and Towns' father lived together in an apartment and that they allowed Towns to stay there with them after Towns was released from prison. After Towns had been staying at the apartment for about two weeks, Towns' father was convicted on criminal charges, and Towns was instructed to give the keys to the apartment back to Arnold....
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...appeal from an order granting an out-of-time appeal: Fineza v. State , 255 Ga.App. 835, 567 S.E.2d 17 (2002) ; Towns v. State , 228 Ga.App. 267, 491 S.E.2d 497 (1997).3 The State asserts this argument within the context of its claim that trial counsel was not ineffective and thus that the m......
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Wilcox v. State, A98A2205.
...knew what he was accused of doing and knew that those acts constituted the crimes with which he was charged. See Towns v. State, 228 Ga. App. 267, 269(3), 491 S.E.2d 497 (1997). The record also reveals that Wilcox was aware of the rights he was waiving and of the consequences of his plea. T......
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