Appellant Sylvester Leon Henderson was indicted, along with a co-defendant, for malice murder, felony murder, and other charges relating to the death of Derrick Brown. On September 8, 2011, appellant entered a guilty plea for felony murder. The transcript of the plea hearing shows appellant killed Brown in Rockdale County by striking him twice with a hammer and engaging in a struggle with the victim in which the victim’s neck was crushed; then appellant and his co-defendant transported Brown’s body to Gwinnett County and dumped it down an embankment. On September 12, 2011, the trial court accepted appellant’s guilty plea, entered final judgment of conviction, and sentenced appellant to life in prison. The remaining counts of the indictment either merged with the conviction for felony murder or, as with the malice murder count, were nol prossed.
Over two years later, in May 2014, appellant filed a “Motion of Withdrawal of Guilty Plea,” and the trial court dismissed the motion for lack of jurisdiction. Although not in the record, the State indicates that on April 13, 2015, appellant filed a petition for writ of habeas corpus which is still pending in the Superior Court of Coffee County Then, on January 11, 2016, appellant filed a pro se motion for out-of-time appeal from the guilty plea conviction in which he asserted, among other things, that plea counsel failed to file a motion for new trial to preserve his right of appellate review of his conviction, that plea counsel provided ineffective assistance of counsel in that counsel failed to investigate appellant’s mental history, and that the trial court failed to inquire into his competency to enter a plea freely, knowingly, and voluntarily despite the fact that evidence of his alleged incompetency was brought to the court’s attention. The trial court denied the motion, finding the guilty plea was entered freely and voluntarily based on the totality of the record, and that even if counsel failed to file a direct appeal, counsel could not be deemed to have provided ineffective assistance as such an appeal would have been frivolous given the record facts. The trial court noted that the guilty plea transcript reflects appellant was taking the prescription
Appellant filed a timely pro se notice of appeal. We affirm.
1. First, we address appellant’s assertion that he received ineffective assistance of counsel. Appellant asserted to the plea court, on the face of what appears to be a pre-printed form titled “Motion for Out of Time Appeal,” that trial counsel failed to file a motion for new trial to preserve his rights of appellate review. We note, however, that a defendant cannot file a motion for new trial from a guilty plea. See Smith v. State,
The remaining ground for appellant’s assertion of ineffective assistance of counsel is that plea counsel failed to pursue any investigation into a possible mental illness defense before advising appellant regarding his guilty plea. But when a motion for out-of-time appeal alleges ineffective assistance for failure to investigate the case where a guilty plea was entered, the appellant must nevertheless allege that the ineffective assistance of counsel was the cause of appellant’s failure to file a timely direct appeal from the judgment on the guilty plea. See Grace v. State,
2. Appellant’s remaining enumerations of error assert that the trial court violated his due process rights by failing, sua sponte, to conduct a competency hearing before accepting his guilty plea. Appellant also appears to argue the trial court erred by failing to conduct a retrospective competency hearing once he raised the constitutionality of his guilty plea conviction in his motion for out-of-time appeal. Appellant argues that since he disclosed at the plea hearing that he was taking Risperdal, which he refers to in his appellate brief as a psychotropic medication, the trial court possessed information sufficient to raise a bona fide doubt about his
To the extent appellant asserts the trial court should have conducted a retrospective determination of appellant’s competency to enter a guilty plea when the court considered his motion for out-of-time appeal, appellant made no such request in his out-of-time motion for new trial. Because this issue was neither raised nor ruled upon by the trial court, it is not properly before this Court for appellate review. See Felix v. State,
Judgment affirmed.
Notes
Strickland v. Washington,