RUTLEDGE v. THE STATE.
A16A2146
Court of Appeals of Georgia
March 15, 2017
798 SE2d 355
REESE, Judge.
In April 2012, Louis Rutledge, Jr. (“Appellant“), pled guilty to burglary in the Superior Court of Troup County. He appeals pro se from the trial court‘s order denying his motion for an out-of-time appeal, in which he claimed that his guilty plea was invalid because neither the trial court nor his defense counsel informed him that, if he were sentenced as a recidivist under
The record shows the following undisputed facts. The State indicted Appellant for one count of burglary under former
sentence required Appellant to serve the first nine years of his sentence in prison without the possibility of parole; the sentence then allowed Appellant to serve the remaining eleven years of his sentence on probation.
In 2014, Appellant filed a motion to withdraw his guilty plea, contending he had recently learned that, because he was sentenced as a recidivist under
In May 2016, Appellant filed a motion for an out-of-time appeal, once again contending that, at the time he entered his plea, neither the trial court nor his counsel had informed him that being sentenced as a recidivist under
The Supreme Court of Georgia has set out a comprehensive overview of the substantive and procedural issues to be considered when a defendant who has entered a guilty plea in the trial court appeals from the denial of his motion for an out-of-time appeal, as follows:
Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a
timely appeal and that deficiency caused prejudice. Thus, an out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel.
In order to bring an out-of-time appeal on the grounds that trial counsel was ineffective, Appellant must necessarily have had the right to file a direct appeal. Although a criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial, a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.
Appellant must establish a good and sufficient reason which entitles him to an out-of-time appeal. To meet this burden, Appellant is required to set forth the questions he would raise should the appeal be
granted and show that these questions could be answered by facts in the record. He cannot merely allege that he was not informed of his right to appeal. If the appellate questions Appellant proposes could not be resolved exclusively on the basis of the existing record, then Appellant would have had no right to file a timely direct appeal and therefore no right to an out-of-time appeal. Instead, Appellant must pursue any claims that require an expansion of the record in a habeas corpus petition. If the appellate questions Appellant proposes could be resolved by using the existing record, but these questions can be resolved against him, then Appellant had no right to file a timely notice of direct appeal and therefore no right to an out-of-time appeal.
On the other hand, if the appellate questions raised by Appellant can be resolved in his favor by using the existing record, then Appellant must show that his counsel was ineffective in not filing a timely direct appeal. To demonstrate ineffectiveness, Appellant must show that his trial counsel provided deficient performance and that, but for
such unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different.5
“We review a trial court‘s denial of a motion for an out-of-time direct appeal for an abuse of discretion.”6 With these guiding principles in mind, we turn now to Appellant‘s specific claims of error.
Appellant contends that the trial court abused its discretion in denying his motion for an out-of-time appeal because his trial counsel never informed him of his right to challenge the validity of his guilty plea on direct appeal. Although the record supports Appellant‘s contention that he was not informed, and possibly even misled, regarding the consequences of his guilty plea on his parole status, such a claim is not properly raised in a motion for an out-of-time appeal. Indeed, the Supreme Court of Georgia has held that a claim that counsel was ineffective by “failing to advise [a defendant] about his parole eligibility and his appellate rights[,] . . . cannot be resolved solely by facts in the record, but would require a post-plea evidentiary hearing.”7 Thus, such “allegations are not subject to review stemming from a motion for an out-of-time appeal, but must be pursued in an action for habeas corpus.”8 For these reasons, we affirm the trial court‘s denial of Appellant‘s motion for an out-of-time appeal.
Judgment affirmed. Dillard, P. J., and Bethel, J., concur.
DECIDED MARCH 15, 2017.
Louis Rutledge, Jr., pro se.
Peter J. Skandalakis, District Attorney, James L. Powers, Assistant District Attorney, for appellee.