Labrew v. State
315 Ga. App. 865
Ga. Ct. App.2012Background
- LaBrew pled guilty to 56 counts of sexual exploitation of children and was sentenced to an aggregate 30 years.
- LaBrew acknowledged each count carried 5 to 20 years and that the judge could determine punishment regardless of recommendations.
- After plea, the court imposed 30-year aggregate sentence; 60 days later, LaBrew filed a direct appeal which was dismissed for lack of jurisdiction.
- LaBrew sought an out-of-time appeal based on two grounds: denial of a hearing on a Motion for Reconsideration treated as a Motion for Modification under OCGA § 17-10-1 (f), and ineffective assistance for not labeling as modification.
- The trial court denied the out-of-time appeal; this Court reviews for abuse of discretion.
- The court held that no order under OCGA § 17-10-1 (f) was warranted because no sentence modification occurred, and the aggregate sentence was within statutory parameters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LaBrew was entitled to a hearing under OCGA § 17-10-1 (f). | LaBrew argues he was entitled to a hearing as a modification proceeding. | LaBrew's argument is that the motion was a § 17-10-1 (f) modification proceeding requiring a hearing. | No entitlement; no modification order issued. |
| Whether counsel was ineffective for not presenting the Motion for Reconsideration as a Modification of Sentence. | LaBrew contends ineffective assistance based on labeling. | Counsel's labeling did not warrant an out-of-time appeal. | Unavailing; no basis for out-of-time appeal. |
| Whether other arguments raised by LaBrew were properly before the court. | LaBrew asserts additional issues entitle relief. | Untimely or unraised arguments cannot be considered. | Waived; not properly before the court. |
Key Cases Cited
- Brown v. State, 290 Ga. 321 (2012) (direct appeal requirements and jurisdictional considerations)
- Gibson v. State, 290 Ga. 516 (2012) (guilty plea entries and out-of-time appeal limitations)
- Golden v. State, 299 Ga. App. 407 (2009) (precedent on issues not raised below)
- Rowland v. State, 264 Ga. 872 (1995) (out-of-time appeal when right to review was frustrated by error)
- Crumbley v. State, 261 Ga. 610 (1991) (sentence voidness standards when law prohibits punishment)
- Cody v. State, 277 Ga. 553 (2004) (timeliness of notice of appeal as jurisdictional requirement)