David Tony Neisler appeals the denial of his motion for an out-of-time appeal and petition for mandamus. Neisler pleaded guilty to three counts of vehicular homicide and one count of serious injury by vehicle on April 15, 1992. Following a pre-sentence investigation, Neisler came before the trial court for
1. The trial court properly denied Neisler’s motion for an out-of-time appeal because Neisler did not meet his burden of establishing that his failure to file a timely appeal was caused by ineffective assistance of counsel and that the issues he would raise on appeal could be resolved by facts appearing in the record.
Wheeler v. State,
First, the court did not err in denying the motion based on Neisler’s claim of ineffective assistance of counsel. It is well settled that “an out-of-time appeal is appropriate where ‘due to the ineffective assistance of counsel, no appeal has been taken.’ ”
Lane,
supra, citing
Hunter v. State,
Additionally, we note that the transcript of the guilty plea indicates that contrary to Neisler’s argument, defense counsel was familiar with the evidence and the applicable law. Specifically, the prosecutor represented to the court that he had spoken with defense counsel extensively about the case and that defense counsel was familiar with the evidence. Neisler’s counsel told the court that he had conducted discovery, reviewed the evidence, visited the scene of the accident, interviewed a number of witnesses, and discussed the evidence with Neisler and his mother. When the court asked Neisler if he was “satisfied that [counsel had] considered all of the surrounding facts and possible defenses” and if he was satisfied with his attorney’s services, he responded affirmatively.
The trial court’s denial of the motion for an out-of-time appeal was also proper because Neisler failed to demonstrate that the issues he would raise on appeal could) be resolved by facts appearing in the record. In
Smith v. State,
supra, the Supreme Court held that a motion for an out-of-time appeal should be denied “unless [the defendant] had a
right
to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel.” (Emphasis in original.) In the case sub judice, the trial court properly found that Neisler failed to demonstrate that
Other than his argument regarding ineffective assistance of counsel, Neisler raised the following grounds for appeal in his motion: that the state lacked evidence to support the charges against him; that there was insufficient evidence to support the grand jury’s indictment; and that the trial judge was biased against him. As the movant, Neisler had the burden of demonstrating a “good and sufficient” reason for his entitlement to an out-of-time appeal. Wheeler, supra; Dover, supra. However, Neisler failed to satisfy his burden by showing that the questions he sought to raise on appeal could be resolved by looking to the record. First, the record does not contain evidence to resolve the issues Neisler raises regarding the sufficiency of the evidence against him. Additionally, Neisler has not demonstrated evidence in the record that would indicate bias on the part of the trial judge. Accordingly, the trial court did not err in denying Neisler’s motion for an out-of-time appeal. See Smith, supra.
2. We also reject Neisler’s argument that the trial court erred in denying his petition for mandamus. Neisler sought to compel the clerk of court to schedule a hearing on his motion for an out-of-time appeal. A writ of mandamus may issue to compel the performance of an official duty if a petitioner has a clear legal right to have the par
ticular act performed.
McClure v. Hightower, 237
Ga. 157, 158 (
3. Neisler has enumerated additional errors regarding the validity of his guilty plea, alleged defects in the indictment, the victim impact testimony allowed at the sentencing hearing, whether the trial court improperly considered improper factors in rendering his sentence, and whether the trial court prematurely directed that Neisler be placed in the state prison system. Because Neisler failed to file a timely appeal of his conviction and sentence, and because the trial court denied Neisler’s motion for an out-of-time appeal, these enumerated errors are not properly before us, and we lack jurisdiction to consider their merits.
Davis v. State,
Judgment affirmed.