Cooper v. State
348 Ga. App. 649
Ga. Ct. App.2019Background
- Cooper pleaded guilty (non-negotiated) to first-degree home invasion, aggravated assault, and possession of a firearm by a convicted felon on Aug. 31, 2017; sentence: life with 14 years to serve and remainder on probation.
- On Apr. 5, 2018, Cooper filed a pro se motion for leave to file an out-of-time direct appeal claiming defects in the indictment, an unknowing/invalid plea, and ineffective assistance of plea counsel.
- Trial court denied the motion; Cooper appealed the denial of leave to file an out-of-time appeal.
- Georgia law permits out-of-time appeals only when failure to timely appeal resulted from constitutionally ineffective assistance of counsel and issues can be resolved from the record; claims requiring extra-record development belong in habeas.
- The plea transcript shows the prosecutor summarized facts, identified charges and penalties, and advised Cooper of rights he would waive; Cooper acknowledged understanding and satisfaction with counsel.
Issues
| Issue | Plaintiff's Argument (Cooper) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Indictment defective for failing to allege essential elements | Indictment did not charge all elements, rendering it void | Indictment factual allegations admit guilt to charged offenses; guilty plea waived most defenses except that no crime was charged | Denied — record shows indictment charged offenses; claim lacks merit |
| Court violated USCR 33.8 by not ensuring Cooper knew elements | Plea was accepted without the court informing him of elements | Plea transcript and counsel-provided presumption show Cooper was informed of nature of charges and factual basis | Denied — record demonstrates Cooper knew nature of charges |
| Boykin rights not advised (self-incrimination, jury, confrontation) | Court failed to advise Cooper of his right against self-incrimination (and other Boykin rights) | Prosecutor asked if Cooper understood he would give up the right not to incriminate himself and right not to testify; Boykin does not require magic words | Denied — record shows Boykin advisements (adequate notice of right against self-incrimination) |
| Ineffective assistance of plea counsel (various) | Counsel failed to advise on rights/elements, failed to challenge warrants/indictment, failed to advise on plea withdrawal and appeal rights | Record rebuts failures on advisement/elements; claims about challenges and advice re: withdrawal/appeal require extra-record development and belong in habeas | Partly denied — advisement claims lack merit; other ineffective-assistance claims require habeas (not resolvable on record) |
Key Cases Cited
- Lewis v. State, 326 Ga. App. 529 (recognizing no unqualified right to direct appeal after guilty plea)
- Stephens v. State, 291 Ga. 837 (out-of-time appeals appropriate when failure to appeal resulted from ineffective assistance)
- Clark v. State, 299 Ga. App. 558 (issues for out-of-time appeal must be resolvable from the record)
- Morrow v. State, 266 Ga. 3 (claims needing expanded record must be raised by habeas corpus)
- Kemp v. Simpson, 278 Ga. 439 (guilty plea waives defenses except that indictment charges no crime)
- Tomlin v. State, 295 Ga. App. 369 (presumption counsel explained nature of offense when defendant has counsel)
- Raheem v. State, 333 Ga. App. 821 (trial court need not personally recite elements; voluntariness requires understanding law in relation to facts)
- Burns v. State, 291 Ga. 547 (Boykin requires informing defendant of key constitutional rights before accepting plea)
- Childs v. State, 311 Ga. App. 891 (trial court duty to ensure defendant understands constitutional rights waived)
- Marion v. State, 287 Ga. 134 (ineffective-assistance claims requiring facts outside the record belong in habeas)
- Ringold v. State, 304 Ga. 875 (Supreme Court questioned Georgia precedent on out-of-time appeals and presumptive prejudice for failure to file appeal)