Barker v. the State
342 Ga. App. 505
| Ga. Ct. App. | 2017Background
- James Barker was indicted for aggravated child molestation and pleaded guilty to child molestation in a negotiated plea on August 14, 2014; he received a 20-year sentence with 5 to serve.
- On January 31, 2017 Barker, proceeding pro se, moved for an out-of-time appeal asserting defects in the arrest warrant and indictment, lack of Boykin advisement, and ineffective assistance of plea counsel.
- The trial court denied the out-of-time appeal; Barker appeals that denial.
- Applicable law requires a showing that claimed issues can be resolved on the existing record and that plea counsel’s ineffectiveness caused the failure to file a timely appeal.
- The record includes a plea colloquy where the court advised Barker of Boykin rights and elicited a factual basis tying the charged time period to when Barker lived with the victim’s family.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of arrest warrant/affidavit | Barker: warrant and affidavit lacked probable cause and omitted source information | State: guilty plea waives defects not going to the court’s power; no jurisdictional defect alleged | Denied — plea waived challenge to warrant; not basis for out-of-time appeal |
| Indictment sufficiency (date allegation) | Barker: indictment’s date range (May 1–Aug 30, 2013) failed to meet OCGA § 17-7-54 requirement | State: where specific date cannot be alleged, a date range is permitted and plea colloquy provided sufficient certainty | Denied — indictment adequate; factual basis tied period to when Barker lived with victim’s family |
| Boykin advisement at plea hearing | Barker: was not advised of right against self-incrimination | State: record of plea hearing shows court advised Barker of Boykin rights and confirmed understanding | Denied — record shows proper advisement and voluntariness |
| Ineffective assistance of plea counsel | Barker: counsel failed to challenge indictment and failed to advise Boykin rights | State: claims can be resolved against Barker on the record, so counsel not ineffective | Denied — existing record resolves claims adversely to Barker; no prejudice shown |
Key Cases Cited
- Moore v. State, 285 Ga. 855 (2009) (guilty plea generally waives defenses except those attacking voluntariness or the State’s power to prosecute)
- Brown v. State, 290 Ga. 321 (2012) (denial of out-of-time appeal reviewed for abuse of discretion)
- Phelps v. State, 293 Ga. 873 (2013) (State bears burden to show plea was knowing and voluntary; may use record or extrinsic evidence)
- Cooper v. State, 281 Ga. 63 (2006) (consider record as a whole to determine voluntariness of plea)
- O'Rourke v. State, 327 Ga. App. 628 (2014) (when evidence does not permit a specific date, State may allege a date range)
- Jordan v. State, 220 Ga. App. 627 (1996) (test for indictment sufficiency: elements, notice to defendant, and protection against double jeopardy)
- Golden v. State, 299 Ga. App. 407 (2009) (post-plea challenges to indictment limited to sufficiency)
- Marion v. State, 287 Ga. 134 (2010) (standards for ineffective assistance claims in plea-context challenges)
- Boykin v. Alabama, 395 U.S. 238 (1969) (a defendant pleading guilty must be advised of rights to remain silent, jury trial, and confront accusers)