Malverty v. State
303 Ga. 102
Ga.2018Background
- In 1985 a Fulton County grand jury indicted Brian P. Malverty for two murders and related offenses; in December 1986 he pled guilty to two counts of felony murder and received concurrent life sentences.
- In January 2016 Malverty moved for an out-of-time appeal of his 1986 guilty plea; the trial court denied the motion and Malverty appealed to the Georgia Supreme Court.
- Malverty argued the 1985 indictment was defective in five respects (missing term, missing name of person who received the true bill, missing date received in open court, incorrect clerk’s number, and failure to allege participation as a party) and contended the indictment defects entitled him to a direct appeal.
- Malverty also argued the trial court violated OCGA § 15-6-21 by failing to rule on numerous motions he filed seeking production of documents and transcripts related to his guilty plea.
- The State and the Court applied precedent governing out-of-time appeals after guilty pleas: a defendant must show he would have been entitled to a timely direct appeal and that the issue can be resolved from the existing record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment defects (form defects) | Indictment defective for five formal defects, so Malverty is entitled to an out-of-time appeal | Waived by guilty plea; substantive defect not shown | Denied — form defects waived by guilty plea; remaining claim (failure to allege party status) not required in indictment and resolved against Malverty on the record |
| Trial court failure to rule on motions (OCGA § 15-6-21) | Trial court violated statute by not ruling; seeks relief | Only mandamus can remedy statutory failure; not proper in this appeal | Denied — remedy would be mandamus, so claim not available in this appeal |
Key Cases Cited
- Moore v. State, 285 Ga. 855 (2009) (threshold showing required for out-of-time appeal after guilty plea)
- Grantham v. State, 267 Ga. 635 (1997) (out-of-time appeal available only if issue can be resolved from the record)
- Stephens v. State, 291 Ga. 837 (2012) (ability to decide appeal on existing record controls availability of out-of-time appeal)
- Marion v. State, 287 Ga. 134 (2010) (issues resolvable against defendant on the record justify denial of out-of-time appeal)
- Smith v. Hardrick, 266 Ga. 54 (1995) (guilty plea waives all defenses except that the indictment charges no crime)
- Glenn v. State, 278 Ga. 291 (2004) (State need not allege in indictment that defendant is charged as a party to the crime)
- Brinson v. State, 261 Ga. 884 (1991) (similar principle regarding indictment form and party allegations)
- Brooks v. State, 265 Ga. 548 (1994) (mandamus is the proper remedy for violation of OCGA § 15-6-21)