Surry v. the State, 340 Ga. App. 8

In Jan 2009, Robert Latron Surry pled guilty to theft by receiving, fleeing/attempting to elude, and possession of cocaine as part of a negotiated plea; four other counts were nolle prossed.
As part of the plea, Surry signed and initialed a detailed written waiver of his right to appeal and to seek sentence modification; the trial court accepted the plea after reviewing the form and questioning Surry.
Surry promptly moved to withdraw his plea alleging it was not voluntary; the trial court held a hearing and denied that motion; Surry did not appeal that denial.
In Sept 2010 Surry filed a pro se motion for an out-of-time direct appeal, arguing appointed counsel negligently failed to file a timely notice of appeal or inform him of the ruling; the trial court denied the motion.
Surry appealed the denial; the Court of Appeals reviewed whether he met the burden to obtain an out-of-time appeal given the written waiver and the record evidence of a voluntary plea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Surry is entitled to an out-of-time direct appeal	Counsel was constitutionally deficient for failing to file or notify him of an appeal	The waiver of appeal in the negotiated plea was knowing and voluntary; record disposes of claimed issues	Denied — Surry did not show entitlement; written waiver and record show plea and waiver were voluntary
Whether the trial record permits the appellate issues Surry now raises	Surry challenges conviction and sentence and the validity of the plea	State: issues raised on appeal were not presented below and are barred by the appeal waiver	Court refused to consider new issues; waiver bars these claims
Whether a lack of transcript defeats showing plea validity	Surry implies plea colloquy transcript absent undermines voluntariness	State: signed waiver form and trial court’s acceptance support voluntariness despite no transcript	Record sufficiently shows plea was voluntary; lack of transcript does not entitle Surry to relief
Whether Surry showed prejudice from counsel’s alleged failure to file appeal	Surry argues prejudice from loss of appellate review	State: even if counsel erred, the issues are meritless on the record because of the waiver and voluntariness	No prejudice shown; therefore no entitlement to out-of-time appeal

Arrington v. State, 332 Ga. App. 481 (discussion of valid waiver and showing voluntariness)
Rhodes v. State, 296 Ga. 418 (standard for out-of-time appeals and counsel performance where issues are resolvable on the record)
Moore v. State, 285 Ga. 855 (burden on movant and sufficiency of record to show plea voluntariness)
Hammond v. Paul, 249 Ga. 241 (issues not raised below are not considered on appeal)
Bryan v. State, 296 Ga. App. 341 (recognizing that valid plea waivers can bar claims)
Hill-Blount v. State, 336 Ga. App. 633 (noting systemic risk from post-conviction delay)