Brown v. State
290 Ga. 321
| Ga. | 2012Background
- Brown pled guilty on Sept. 16, 1993 to murder and firearm possession by a felon; received life sentence for murder and concurrent 5-year term for the firearm offense.
- On June 4, 2010, Brown filed a motion for out-of-time appeal; trial court denied on Dec. 16, 2010.
- Appellate review focuses on whether a guilty-plea defendant has a right to an out-of-time direct appeal and whether the motion can be resolved on the record.
- Appellant challenges indictment sufficiency and alleged procedural defects, but the court resolves these on the record.
- The court held that claims of ineffective assistance cannot be resolved on the record in an out-of-time appeal and require habeas corpus; no evidentiary hearing or counsel appointment was required.
- Overall, the trial court’s denial of the out-of-time appeal was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown is entitled to an out-of-time direct appeal from a guilty plea. | Brown | State | No; discretionary denial affirmed. |
| Whether the indictment was void for failing to specify the instrument used. | Brown | State | No error; indictment sufficient to charge shooting death. |
| Whether alterations to Count II and grand jury foreman void the indictment. | Brown | State | No; record supports validity of indictment. |
| Whether failure to swear Brown in before the guilty plea entitles him to an out-of-time appeal. | Brown | State | No; waiver shown; no direct benefit from oath issue. |
| Whether Brown could pursue claims of ineffective assistance on direct appeal. | Brown | State | No; must pursue habeas corpus; not resolvable on record. |
Key Cases Cited
- Barlow v. State, 282 Ga. 232, 233, 647 S.E.2d 46 (2007) (Ga. 2007) (no unqualified right to direct appeal from guilty plea; appeal only from record issues; abuse of discretion standard for out-of-time appeals)
- Grantham v. State, 267 Ga. 635, 481 S.E.2d 219 (1997) (Ga. 1997) (direct-appeal viability depends on record)
- Moore v. State, 285 Ga. 855, 684 S.E.2d 605 (2009) (Ga. 2009) (denial of out-of-time appeal review; requires abuse-of-discretion standard)
- Brown v. State, 280 Ga. 658, 659, 631 S.E.2d 687 (2006) (Ga. 2006) (indictment issues resolvable on record still can foreclose out-of-time relief)
- Morgan v. State, 275 Ga. 222(9), 564 S.E.2d 192 (2002) (Ga. 2002) (indictment sufficiency; notice of charged crime)
- Golden v. State, 299 Ga.App. 407, 407, 683 S.E.2d 618 (2009) (Ga. App. 2009) (issues resolved against defendant on record may bar out-of-time appeal)
- Sweeting v. State, 291 Ga.App. 693, 694-695, 662 S.E.2d 785 (2008) (Ga. App. 2008) (guilty plea proceedings can waive certain objections to oath)
- Gilbert v. State, 245 Ga.App. 544, 545, 538 S.E.2d 104 (2000) (Ga. App. 2000) (guilty plea waives objections to testimony admissibility)
- Upperman v. State, 288 Ga. 447, 705 S.E.2d 152 (2011) (Ga. 2011) (no mandatory evidentiary hearing in out-of-time appeal)
- Burroughs v. State, 239 Ga.App. 600, 521 S.E.2d 652 (1999) (Ga. App. 1999) (no appointment of counsel on motion for out-of-time appeal)