Caine v. State
467 S.E.2d 570
Ga.
1996
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CAINE v. THE STATE

No. S95A1912

Supreme Court of Georgia

March 15, 1996

266 Ga. 421 | 467 SE2d 570

CARLEY, Justice.

CARLEY, Justice.

Isаac Caine entered a guilty plea to a charge of murder. In this case, he appeals directly from the judgment of conviction and sentence entered on his guilty plea. He contends that his guilty plea was not freely and voluntarily entered and that the actions of trial counsel denied him his constitutional right to effective assistance of counsel.

In response to a certified question from the Court of Appeals, this Court clearly held in

, that a timely filed direct appeal from a judgment entered on a guilty plea is a prescribed means by which a defendant may challenge a guilty plea “[w]here the question on appeal is one which may be resolved by facts appearing in the record, as in
....” Thus, the merits of Caine‘s appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.

This limitation on the right to file a direct appeal has been followed consistently and, indeed, as recently as

. In
, the trial court denied the defendant‘s motion for out-of-time appeal from the judgment of conviction and sentence entered on his guilty plea to murder. In that out-of-time appeal, thе defendant sought to raise an issue which could be resolved only by reference to facts outside the record. Thus, noting that the defendant had no right to file even a timely notice of appeal and citing
, this Court affirmed the trial court‘s denial of the mоtion for out-of-time appeal, since a direct “appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. [Cit.]” (Emphasis supplied.)
.

This well-settled rule оf appellate jurisdiction is entirely compatible with the equally established principle that ‍‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌​​‌‌​‌‌​​‌​​​‌‌​‌‌​‌‌​‌‍a claim of ineffectiveness of trial counsel should be asserted and resolved at the earliest practicable moment.

;
. If the issue on direct аppeal from a judgment entered on a guilty plea cannot be resolved by facts appearing in the record, then permitting the appeal would not generally promote the quick resolution of the issue. To the contrary, such an aрpeal would ordinarily have to be remanded for an evidentiary hearing. The more efficient procedure would be for the defendant to raise the issue first in the trial court by a motion to withdraw the guilty plea. After the evidentiary hearing on that motion, the defendant could then appeal from a denial of the motion. At that point, the appellate court could resolve the issue onthe basis of the existing record without the need for a remand. Furthermore, a delay in filing a motion to withdraw the guilty plea beyond the term of court in which the guilty plea was accepted would have the same effect on the timely resolution of the issue as would a delay in filing a direct appeal beyond the expiration of the appeal pеriod. In either instance, the defendant would be relegated to the remedy of habeas corpus.
;
.

In this case, Caine makes no contention that, in accepting the guilty plea, the trial court erroneously failed to follow the established prоcedure. Compare

. Rather, the contention is that his plea was not voluntary and that his counsel was ineffective. See
. Thus, the existing record, including the transcript of the guilty plea hearing, is immaterial to Caine‘s appeal. The issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing. As indicated above, Caine could have filed a motion to withdraw his guilty plea and then his claims would have been fully aired in a timely manner at the hearing on the motion. If Caine had done so and the trial court had denied the motion, then he could have appealed from that denial. However, in this case there was no such motion or hearing and, thus, no appeal from an order dеnying the motion. The issues which Caine raises cannot be resolved only by facts appearing in the existing record. Accordingly, he was not entitled to file a notice of direct appeal and his appeal must, therefore, be dismissed.
.

Appeal dismissed. All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J., who dissent.

BENHAM, Chief Justice, dissenting.

I respectfully dissent from the majority‘s dismissal of this appeal because I believe the majority‘s decision constitutes a major erosion of this Court‘s decade-long pоlicy of ensuring resolution of ineffective assistance of counsel claims by the trial court at the earliest practicable moment. Further, I believe that the majority‘s decision is based on an incorrect and outdated interpretation of

, аnd will itself be the basis for constitutional arguments concerning Georgia‘s disparate treatment of the appeals of guilty plea defendants. Finally, because I believe that the majority need not go ‍‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌​​‌‌​‌‌​​‌​​​‌‌​‌‌​‌‌​‌‍to the lengths set forth in the majority opinion in order to resolve appellant‘s allegations of ineffective assistance of counsel adversely to him, I offer an alternative resolution of this appeal.

All convicted criminal defendants have a right of appeal (OCGA § 5-6-33), and

is this Court‘s affirmation that a guilty plea defendant is entitled to challenge the efficacy of his guilty plea convic-tion by means of a timely-filed direct appeal. The last sentence of
, upon which the majority relies to dismiss appellant‘s appeal, states: “[w]here the question on appeal is one which may be resolved by facts appearing in the record, . . . a direct appeal will lie.” I submit that this sentence is nothing more than a restatement of the judicial maxim that an appellate court is required to decide cases on the facts containеd in the record. See
. Consequently, a guilty plea defendant‘s direct appeal and the direct appeal of a defendant convicted in a trial are similarly limited in scope to that which appears in the record.

Within two years of its dеcision reiterating the established principle that appeals are limited to the facts in the appellate record, this Court fashioned an exception to the rule where the issue of ineffective assistance of counsel is raised. Faced with an appeal in which the defendant raised for the first time the contention that his trial counsel‘s performance had denied him effective assistance of counsel, this Court ruled that “[i]t is a requisite of a sound system of criminal justice . . . that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment,” and remanded the case to the trial court for a hearing and findings of fact concerning the issue of ineffеctive assistance.

. Because the appellate record did not contain the facts with which the allegation of ineffective assistance could be measured, it was necessary that the case be remanded in order that the chаllenge could be heard at the earliest practicable moment.
. Remand reinforced this Court‘s expressed preference for prompt resolution of the ineffective assistance allegation by the trial court which presided over the case in which the alleged ineffectiveness occurred instead of by “a habeas court somewhere down the road.”
. Since the decision in
, this Court has developed a policy of initial review in the trial court of ineffectiveness ‍‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌​​‌‌​‌‌​​‌​​​‌‌​‌‌​‌‌​‌‍claims, thereby stressing the neеd for prompt resolution of these claims. See
for an annotated development of the policy. We recently re-emphasized the requirement that the trial court conduct the initial review of the ineffectiveness claim in
, where we сoncluded that a defendant with an opportunity to present the issue to the trial court must avail himself of that opportunity as a prerequisite to appellate review of the issue.1

The ineffective-assistance-of-counsel exception to the rule limiting appeals to the facts contained in the record is applicable to guilty plea defendants as well as to those adjudicated guilty in a trial. See, e.g.,

, where the Court of Appeals en banc remanded the case to the trial court for a hearing on the guilty plea convict‘s claim he had been denied effective assistance of counsel. This Court should follow the lead of the Court of Appeals and apply the same rules of appellate рrocedure to appeals from guilty plea convictions as are applied to convictions obtained after trial.

This Court‘s failure to apply the same rules of appellate procedure to all criminal appellants, thereby depriving some appellants of the right to appeal, raises the specter that this Court is endorsing the violation of appellants’ due process and equal protection rights. “[O]nce the State has created a right of appeal, it must ‘offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. [Cit.]’ The majority has denied [Caine] such a ‘fair opportunity’ by reducing his right of appeal to a ‘meaningless ritual’ by precluding him from effectively asserting his appellate arguments. [Cit.]”

(Sears, J., dissenting). If, indeed, a guilty plea defendant has diminished appellate rights because he pled guilty, should he not be informed of the concomitant loss of appellate rights before he enters his plеa? If the defendant pled guilty but was not told he was giving up aspects of his right to appeal, including the right to assert on appeal that his attorney did not render effective assistance of counsel, is not the plea subject to attack as unknowing аnd involuntary?

Instead of imposing the harsh sanction of dismissing Caine‘s appeal, I would follow

, and affirm the trial court‘s judgment of conviction rather than dismiss his appeal. This approach accomplishes the purpose of testing the validity of the appeal against the record without doing violence ‍‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌​​‌‌​‌‌​​‌​​​‌‌​‌‌​‌‌​‌‍to the rights of a defendant entering a guilty plea. Should a guilty plea defendant wish to pursue a claim of ineffective assistance of counsel, he must meet the two-pronged standard enunciаted in
.
. The defendant must show that the attorney‘s representation fell below an objective standard of reasonableness, and that the defendant wasprejudiced thereby. Id. When a guilty plea is the result of purported ineffectiveness, the prejudice the defendant must еstablish is that “there is a reasonable probability that, but for counsel‘s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.”
. As was the situation in
, nowhere in the appellate record of the case at bar has appellant asserted that he would have insisted on going to trial had it not been for his attorney‘s alleged inadequacies. Consequently, appellant has not alleged or shown that he was prejudiced by the alleged inadequacies, resulting in the conclusion that aрpellant has not met the minimum criteria for establishing that trial counsel was ineffective. Id.;
;
. Therefore, appellant‘s assertion of ineffective assistance fails, and his conviction should be affirmed.
.

I am authorized to state that Presiding Justice Fletchеr and Justice Sears join in this dissent.

DECIDED MARCH 15, 1996.

Christy R. Jindra, for appellant.

Robert E. Keller, District Attorney, M. Thomas Woodward, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Caroline W. Donaldson, Assistant Attorney General, for appellee.

Notes

1
I question the majority‘s assertion that its dismissal of Caine‘s direct appeal is compatible with our recent holding in Glover. In Glover, this Court recognized the unfairness of applying the rule it developed ‍‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌​​‌‌​‌‌​​‌​​​‌‌​‌‌​‌‌​‌‍to Glover‘s case, and remanded his ineffectiveness claim to thetrial court for а hearing. In contrast, the majority herein develops an appellate practice rule and applies it to the case at bar, dismissing Caine‘s appeal after telling him he should have filed a motion to withdraw the guilty plea and appealed its denial. As Caine‘s opportunity to file a motion to withdraw his guilty plea has long since expired, the majority‘s directive is of little use to him at this point in time.