Coulter v. StateCoulter v. State
Prisoner Dustin James Coulter files this pro se appeal from the denial of his motion for an out-of-time appeal following the entry of his guilty рleas to two counts of malice murder. For the reasons that follow, we affirm.
On May 2, 2006, a Bulloch County grand jury indicted Coulter, his wife Alexandra Coulter, and their friend Jerry Easters, for two counts each of mаlice murder, armed robbery, and possession of a knife during the commission of murder in connection with the November 21, 2005 armed robberies and fatal stabbings of Jack Walton Futch and his wife, Paula Franklin Futch. Thе State gave notice of its intent to seek the death penalty for Coulter on May 26, 2006, and the prosecution proceeded under the Unified Appeal Procedure. The appliсation for interim review was denied by this Court on February 12, 2008. Following the empaneling of a jury to try Coulter, on November 7, 2008, Coulter, pursuant to a negotiated agreement, pled guilty to two counts of maliсe murder and received concurrent life sentences; the remaining counts were nol prossed. More than three years later, on February 2, 2012, Coulter filed, inter alia, a pro se motion tо withdraw his guilty pleas. The trial court dismissed the motion for lack of jurisdiction on February 10, 2012, as the motion was filed outside the term of court in which the guilty pleas were entered.
1. The purpose of an out-of-time appeal is to address constitutional concerns that arisе when a criminal defendant is denied a first appeal of right because the counsel to whom he was entitled to have assist him in that appeal was professionally deficient in failing to advise him to file a timely appeal, and that this deficiency caused him prejudice; therefore, an out-of-time appeal is appropriate when a direct appeаl was not taken due to the ineffective assistance of counsel. Stephens v. State, 291 Ga. 837, 838 (1) (733 SE2d 266) (2012). However, that is not the end of the analysis because in order to have an out-of-time appeal on the basis оf ineffective assistance of counsel, the defendant must have had the right to file a direct appeal, and a direct appeal from a judgment of conviction and sentence entered following a guilty plea is available to the defendant only if the issue on appeal is capable of resolution by reference to facts on the record. Id. Consequеntly, a determinative factor in the availability of an out-of-time appeal when the defendant has pled guilty is whether the appeal can be decided based upon the existing reсord; any question of the effectiveness of counsel is not reached unless it can be resolved by reference to facts on the record. Id.
Thus, the first inquiry is whether the issues that Coulter seeks to appeal can be resolved on the existing record because, if not, he would have had no right to file even a timely appeal, and therefore, would not be entitled to an out-оf-time appeal. Id. If, indeed, his claims require expansion of the record, he would have to pursue them by way of a petition for writ of habeas corpus. Id. But, if in his motion
2. In this appeal, Coulter enumerates the same claimed errors that he raised in the superior court in support of his motion for an out-of-time appeal. And, it is apparent that such claims can be resolved, albeit adversely to Coulter, on the present record.
(a) Coulter first contends that his pleas were not “intelligent, knowing, and voluntary” because venue of the crimes had to be proven and the record is silent on venue. However, the indictment returned by the Bulloch County grand jury to which Coulter pled guilty alleged that the malice murders occurred “in the county aforesaid,” which was Bulloch County. Furthermore, although the State would have had to prove the facts establishing venue at any trial, when Cоulter pled guilty to all the allegations in the malice murder counts of the indictment, he was admitting to all of the elements of the crime of malice murder, and he waived the defense of failure to establish venue. Wright v. Hall, 281 Ga. 318, 319 (1) (638 SE2d 270) (2006).
(b) Coulter further contends that the plea court failed to advise him of all of his Boykin rights, specifically the right to confront witnesses against him, the right to compulsory process, and the privilege against self-incrimination at trial. But, the record reflects otherwise. During the plea hearing, Coulter affirmed that his two
(c) Finally, Coulter maintains that his plea counsel was deficient for not advising him of his “right” to pursue a direct appeal, as evidenced by the silence of the record in this regard, and that he was prejudiced thereby because a timely direct appeal would have shown the State‘s failure to prove venue and the plea court‘s failure to properly advise him of his Boykin rights. But, as has already been discussed, there is no merit to Coulter‘s claims regarding venue and the Boykin rights; therefore, a timely appeal making such claims would not have been successful. Consequently, any failure by Coulter‘s counsel to advise him to file such an appeal cannot be found to be a deficiency in counsel‘s representation or a сause of any prejudice to Coulter. See Division 1, supra.
It was not error to refuse to grant Coulter an out-of-time appeal.
Judgment affirmed. All the Justices concur.
Notes
[Y]ou understand you would have an absolute entitlement to a jury trial. We‘ve already selеcted a jury all day yesterday. If you elected to have a jury trial, then you would be presumed innocent of the charges and the State would have a burden of overcoming that presumption of innocence by proof beyond a reasonable doubt that you are guilty of the charges. Do you understand that? ... You understand that if you elected to go through with your jury trial you would be able to cross-examine or ask questions of the witnesses that the State might bring? ... You would be able to compel witnesses by subpoena to come in and testify for you.... You could take the stand and testify if you wanted to, but you could not be compelled to because this is a criminal case. You don‘t have to put up any evidence at all. You could sit there mute, if you wanted to. You understand that? ... You‘re giving up those rights by offering these pleas of guilty to counts one and two, which are the two [m]urder counts.