Wetherington v. State
296 Ga. 451
| Ga. | 2015Background
- Michael Wetherington pled guilty in 1986 to malice murder, attempted armed robbery, and attempted kidnapping; sentenced to life plus consecutive 10-year terms.
- He did not file a timely direct appeal and over decades filed multiple pro se habeas petitions and five motions for an out-of-time direct appeal; the fifth was denied by the trial court in 2013.
- This Court previously reversed denial of his fifth motion because an earlier pending motion acted as a supersedeas; after that opinion the clerk transmitted Wetherington’s original January 20, 2009 notice of appeal, which is the appeal before the Court here.
- Wetherington seeks an out-of-time appeal claiming (1) the magistrate’s arrest-warrant affidavits lacked probable cause and (2) retained trial counsel was ineffective for failing to investigate or inform him of appeal-rights/appointment of counsel.
- The Court frames the key legal threshold: an out-of-time appeal after a guilty plea is only available if the appellate question can be resolved by the existing record; otherwise the claim must be pursued via habeas corpus.
Issues
| Issue | Wetherington's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Wetherington was entitled to an out-of-time appeal based on proposed appellate questions | He identified appellate questions (e.g., invalid arrest-warrant affidavits) and argued counsel’s failure to pursue appeal and to inform him of appointment rights made an out-of-time appeal appropriate | The proposed issues either were waived by the guilty plea or cannot be resolved from the record and therefore do not justify an out-of-time appeal | Denied: No right to an out-of-time appeal because proposed issues either waived or require expansion of the record |
| Validity of the arrest-warrant affidavits (probable cause) | Affidavits were conclusory and not based on affiant’s personal knowledge, so arrest warrants and subsequent proceedings were void | Any challenge to arrest-warrant validity was waived by a voluntary guilty plea; Wetherington did not claim his plea was involuntary | Rejected as an out-of-time appeal ground: challenge waived by guilty plea and not within exceptions |
| Ineffective assistance for failure to investigate or to inform about appeal/appointment of counsel | Counsel failed to investigate invalid warrants and failed to correct judge’s assumption that retained counsel would handle appeals or to secure appointment info | Such ineffective-assistance claims require evidentiary development beyond the record (post-plea hearing or habeas); issues cannot be resolved solely from the record | Rejected for out-of-time appeal: claim must be pursued in habeas or post-plea proceedings; not presentable on the existing record |
Key Cases Cited
- Wetherington v. State, 295 Ga. 172 (reciting procedural history and prior relief)
- Stephens v. State, 291 Ga. 837 (out-of-time appeals appropriate when direct appeal was not taken due to ineffective assistance of counsel)
- Grantham v. State, 267 Ga. 635 (out-of-time appeal available only if issue resolvable from the record after a guilty plea)
- Smith v. State, 266 Ga. 687 (no unqualified right to appeal from a guilty plea)
- Moore v. State, 285 Ga. 855 (guilty plea waives pre-plea constitutional claims except in narrow circumstances)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard of deficient performance and prejudice)