Case Information
*1 FOURTH DIVISION DILLARD, P. J., RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 13, 2017 In the Court of Appeals of Georgia
A17A0691. LAMB v. THE STATE.
P ER C URIAM .
Raymond Lamb filed a pro se appeal from the trial court’s order denying his motion for an out-of-time appeal. For the reasons that follow, we affirm in part, vacate in part, and remand the case for resentencing.
Lamb pled guilty in December 2013 to child molestation and incest. He was sentenced to 25 years for child molestation and 10 years for incest, for a total of 35 years, with the first 18 years to be served in confinement. Lamb subsequently filed a pro se motion for an out-of-time appeal, asserting that he did not receive effective assistance of counsel because his plea counsel did not present the issue of his diminished mental capacity, and that his guilty plea was not made freely and *2 voluntarily because he was under the influence of “psychotropic” medications at the time of the plea. The trial court denied the motion. Lamb appeals from that denial.
Georgia law is clear that:
a defendant is not entitled to an out-of-time appeal unless he had the right to file a direct appeal. And a direct appeal from a judgment of conviction and sentence entered on a guilty plea is available only if the issue on appeal can be resolved by reference to facts on the record. For this reason, the ability to decide the appeal based on the existing record is the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.
Smith v. State
,
We first consider Lamb’s argument that he did not knowingly or voluntarily enter the plea because he was impaired by medication at the time.
Where the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record *3 of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.
Johnson v. State
,
The transcript of the guilty plea proceeding reveals that before accepting Lamb’s plea, the trial court inquired whether he was taking any medications. Lamb said that he was on medication. [1] The trial court explored the issue and asked Lamb:
[b]ut you are thinking clearly today, and you understand everything I’m saying to you, and you’ve been able to converse or communicate with your lawyer okay; is that right?
Lamb responded, “[y]es, sir.” The trial court then explained that it was “going to find that this plea is given freely, voluntarily, and knowingly; there’s been no use of force, threats, pressure, intimidation, and no promises made. Is that correct?” Lamb responded, “[y]es, sir.”
Lamb responded appropriately and cogently to the trial court’s inquiries, and
nothing in the proceeding reflects that the medication affected his understanding of
the proceedings. “[He] offered no indication to the trial court that he suffered from
*4
a medication-induced impairment. To the contrary, he represented to the court that
the medicine did not affect his ability to understand the proceedings. No further
inquiry was required.”
Brown v. State
,
Lamb also argues that he received ineffective assistance of counsel for his plea
counsel’s failure to bring his diminished mental faculties to the trial court’s attention.
[2]
However, issues of ineffective assistance of trial counsel following a guilty plea “can
be developed only in the context of a post-plea hearing.”
Lamb v. State
, 282 Ga. App.
756, 758 (639 SE2d 641) (2006). See also
Kennedy
, 319 Ga. App. at 499 (2).
Likewise, “[i]ssues of mental competency cannot be resolved with reference only to
facts appearing in the record of the plea and sentence.”
Gray v. State
, 273 Ga. App.
*5
441, 442 (1) (a) (
Accordingly, the trial court did not abuse its discretion in denying Lamb’s motion for an out-of-time appeal. However, as the State concedes, Lamb’s 25 year sentence for child molestation exceeds the statutory maximum of 20 years. See OCGA § 16-6-4 (b) (1). We therefore vacate his sentence for child molestation and remand this case for resentencing in accordance with OCGA § 16-6-4 (b) (1).
Judgment affirmed in part and vacated in part, and case remanded. Division Per Curiam. All Judges concur.
Notes
[1] Lamb stated he was taking Paxil and a medication to “help [him] rest.”
[2] It appears that Lamb’s mental capacity was called into question below, and during pre-trial proceedings, the trial court ordered a mental evaluation of Lamb.