Stephens v. State, 291 Ga. 837

Stephens indicted Feb. 12, 2003 in Jeff Davis County for malice murder and aggravated assault; pled guilty to murder Feb. 28, 2003 and the aggravated assault charge was dismissed; sentenced to life imprisonment Apr. 25, 2003.
Feb. 27, 2012, Stephens filed pro se motion for out-of-time appeal; trial court denied Feb. 29, 2012; direct appeal then pursued.
Out-of-time appeals address potential ineffective assistance of counsel in not timely filing an appeal; such relief is available only where issues can be resolved on the existing record, otherwise habeas corpus relief is used for record-expanding claims.
If issues raised in an out-of-time appeal can be resolved on the record, ineffective-assistance analysis applies; otherwise, the claim requires an evidentiary hearing or is resolved against the movant.
In deciding such motions, if the claims can be resolved against the defendant on the face of the record, the motion may be denied without a hearing; if not resolvable, an evidentiary hearing is required to address counsel’s conduct.
The court concluded the asserted issues could be resolved on the existing record and were meritless, so timely direct appeal would have been unsuccessful; the motion for out-of-time appeal was properly denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can the raised issues be resolved on the existing record?	Stephens argues defects warrant an out-of-time appeal.	State contends issues are resolvable on the record; no hearing needed.	Yes; issues resolve on record; no out-of-time appeal warranted.
Was the indictment defective for venue or underlying felony?	Indictment allegedly lacked venue and underlying felony for malice murder.	Indictment properly charged venue; malice murder does not require a predicate felony.	Venue properly charged; no underlying felony required for malice murder.
Did counsel’s failure to inform of defects prejudice the defendant?	Plea was involuntary due to counsel’s failure to warn of defects.	No prejudice because defects did not exist; plea was valid.	No ineffective assistance; no prejudice; denial affirmed.

Simmons v. State, 276 Ga. 525 (Ga. 2003) (denial of out-of-time appeal directly appealable when no direct appeal)
Grantham v. State, 267 Ga. 635 (Ga. 1997) (out-of-time appeal available when direct appeal is meritorious on record-based issues)
Morrow v. State, 266 Ga. 3 (Ga. 1995) (claims requiring expanded record belong in habeas corpus)
Smith v. State, 287 Ga. 391 (Ga. 2010) (if the record resolves issues against defendant, no error in denying out-of-time appeal)
Brown v. State, 290 Ga. 321 (Ga. 2012) (where an issue can be resolved on the existing record, no out-of-time appeal error)
Long v. State, 287 Ga. 886 (Ga. 2010) (Strickland-based prejudice required when meritorious appeal possible)
State v. Meeks, 309 Ga. App. 855 (Ga. App. 2011) (indicts that the place is sufficiently certain absent essential element)
Landers v. State, 285 Ga. 575 (Ga. 2009) (indictment sufficient to charge venue in particular county)