Lоrenzo Shelton pled guilty to aggravated assault with intent to rape (OCGA § 16-5-21 (a) (1)) and kidnapping (OCGA § 16-5-40 (a)) on February 2, 2007. He was sentenced to 20 years on each count to be served consecutively, for a total of 40 years imprisonment. More than three years later, on March 4, 2010, Shelton filed a pro se “Motion for Out-of-Time Appeal to Vacate Void Sentence,” contending (i) that his counsel rendered ineffective assistance. Specifically, he also alleges (ii) that his guilty pleas were accepted in violation of the constitutional рrohibition against double jeopardy, (iii) that his sentence was void since the indictment failed to allege the essential *600 elements of the offenses; and (iv) that the alleged asportation was insufficient to support the kidnapping conviction under the Garza 1 test. The trial court denied the motion, from which Shelton appeals. For the reasons explained below, we affirm.
The factual basis 2 for Shelton’s guilty plea reflected that on September 22, 2006 at 3:00 a.m., the female victim was doing laundry at a laundromat facility. Shelton entered the facility and approached the victim. Shelton then grabbed the victim and dragged her from the front of the facility to a bathroom in the back of the facility. While holding the victim in the bathroom for approximately 40 minutes, Shelton sexually assaulted the victim and had forcible sexual intercourse with the victim against her will.
The laundromat facility was equipped with a video camera that recorded portions of Shelton’s attack against the victim. The victim also was able to give a detailed description of Shelton as the attacker. Shelton was subsequently arrested and charged with the aggravated assault and kidnapping offenses.
Shelton pled guilty to the offenses and admitted that he had committed the acts as set forth in the factual basis described by the State. After serving three years of his forty-year sentence, Shelton filed a motion for an out-of-time appeаl, which the trial court denied.
1. Shelton contends that the trial court erred in denying his motion for an out-of-time appeal based upon his claims of ineffective assistance of counsel. We discern no error.
“In order for an out-of-time appeal to be availablе to a defendant on the basis of alleged ineffective assistance of counsel, the defendant must have had the right to file a direct appeal.”
Stewart v. State,
[W]here a defendant appeals a guilty plea on the grounds of ineffective assistance of counsel, the issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing. Accordingly, the defendant may not file a *601 direct appeal where the only evidence in the record is the transcript of the guilty plea hearing.
(Citations and punctuation omitted.)
Olguin,
supra,
Here, Shelton contends that his counsel was ineffective in his representation and provided misinformation to induce his guilty plea. Under these circumstances, Shelton’s claims could not be resolved by reference to facts contained in the record and must be developed in a post-plea hearing. Consequently, the trial court did not err in denying the motion for an out-of-time appeal; Shelton’s remedy must be pursued in a habeas corpus action. See
Coleman v. State,
2. Shelton also contends that his guilty pleas were accepted in violation of the constitutional prohibition against double jeopardy because the aggravated assault and kidnapping offenses should have been merged as a matter of law and fact. 4 Shelton’s contention is without merit. 5
For a kidnapping conviction, the state must prove an unlawful asportation of a person against his will. OCGA § 16-5-40 [(a)]. For a conviction on a charge of aggravatеd *602 assault with intent to rape, the state must show that appellant assaulted the victim with the intent to rape her. See OCGA § 16-5-21 (a) (1).
(Citation and punctuation omitted.)
Strozier u. State,
Since each of the offenses was separate and required proof of different facts, they did not merge as a matter of law or fact. See
McGuire v. State,
3. Shelton further сontends that his motion should have been granted since his sentence was void. His contention is without merit.
(a) “A sentence is void if the court imposes punishment that the law does not allow. When the sentence imposed falls within the statutory range of punishment, the sentence is not void[.]” (Citations and punctuation omitted.)
Jones v. State,
(b) Shelton nevertheless argues that his sentence was void on the ground that the indictment failed to allege the essential elements of the aggravated assault and kidnapping offenses. Shelton’s claim, however, is procedurally flawed.
[T]he right to be tried upon an indictment that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the indictment. Because [Shelton] failed to challenge the [indictment] by way of special demurrer or by filing a motion to quash before entering his guilty plea, he waived the right to a perfect [indictment].
(Citations omitted.)
State v. Hammons,
Moreover, while а general demurrer challenging the validity of an indictment may be raised at any time, it may not be raised in any proceeding. See
Grogan v. State,
When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law[,] and no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus.
(Punctuation and footnote omitted.) Id. Shelton failed to file a motion in arrest of judgment within the same term of court in whiсh the judgment was entered, and thus his remedy is limited to a habeas corpus action. Id. Accordingly, Shelton’s motion for an out-of-time appeal raising this claim was properly denied.
(c) Shelton also argues that his kidnapping charge was void in light of
Garza v. State,
At the time of Shelton’s crime in September 2006 and his subsequent cоnviction in February 2007, our state law provided that the element of asportation supporting a kidnapping charge could be established by proof of movement of the victim, however slight. See
Lyons v. State,
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether suсh movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
Id. at 702 (1). All of the factors do not have to favor the Statе to prove asportation. See
Abernathy v. State,
Under the “pipeline” approach, “a new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.”
Taylor v. State,
Pretermitting whether the holding in
Garza
is otherwise subject to retroactive application in a collateral appeal,
7
applying the
Garza
test in this case would not result in the reversal of Shelton’s
*605
conviction. Under the
Garza
test, Shelton’s movement of the victim was sufficient to satisfy the asportation element for the kidnapping offense. The factual basis for the plea reflected that although the movеment of the victim from the front of the laundromat facility to the bathroom in the back of the facility was of minimal duration, it did not constitute an inherent part of the aggravated sexual assault; rather, the movement created additional dangers to the victim by isolating her from protection or rescue. See
In the Interest of D. S.,
Judgment affirmed.
Notes
See
Garza v. State,
Uniform Superiоr Court Rule 33.9 provides that before entering a judgment on a guilty plea, the trial court must determine on the record that a factual basis exists for the plea. See
State v. Evans,
Moreover,
[t]o the extent that [Shelton] is challenging the validity of his guilty plea, his challenge to the trial court’s acceptance of the plea must be raised through habeas corpus proceedings because he neither sought to withdraw his guilty plea nor filed a direct appeal until after the expiration of the term of court in which his plea was accepted.
(Citation omitted.)
Denova v. State,
To the extent that Shelton’s arguments are based upon other charges in the indictment for which he was not convicted, those charges are irrelеvant to our analysis. See
Middlebrooks v. State,
We note that the trial court’s order denying Shelton’s motion only addressed the ineffective assistance of counsel issue and failed to address the remaining claims presented in Shelton’s motion. Under these circumstances, this Court generally would remand the case for the trial court’s determination of the remaining claims. “However, remand should be principled and necessary, not automatic, delaying, and wasteful of judicial and legal resources. ... [A] judgment that is right for any reason will be affirmed.” (Citations and punctuation omitted.)
Banks v. State,
Subsequent to
Garza,
the legislature amended the kidnapping statute as to crimes committed on or after July 1, 2009. See Ga. L. 2009, p. 331, § 1;
Leverette v. State,
We note that in
Hammond v. State,
To date, the State has failed to file a brief in this appeal. On November 22, 2010, the State filed a motion for an extension of time to file its brief. On December 7, 2010, Shelton filed a motion to strike the appellee’s brief in light of the State’s failure to file timely. Both motions are denied as moot.