William L. Stephens appeals from the trial court’s order denying his motion for an out-of-time appeal. We affirm.
1. On February 12, 2003, Appellant was indicted in Jeff Davis County on charges of malice murder and aggravated assault. On February 28, 2003, he pled guilty to murder; in exchange, the State dismissed the aggravated assault charge. On April 25, 2003, Appellant was sentenced to life in prison.
Almost nine years later, on February 27, 2012, Appellant filed a pro se motion for out-of-time appeal in the trial court. Without holding an evidentiary hearing, the court denied the motion on February 29, 2012, and Appellant filed this direct appeal. See Simmons v. State,
2. 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. See Rowland v. State,
for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. 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.
Id. (citation omitted).
Accordingly, the analysis of a motion for out-of-time appeal proceeds in several steps. First, if the issues that a defendant who pled guilty seeks to appeal cannot be resolved using the existing record, he would have had no right to file even a timely appeal and therefore is also not entitled to an out-of-time appeal. See Morrow v. State,
On the other hand, if a defendant raises an issue in a motion for out-of-time appeal that can be determined on the existing record, “[i]ssues regarding the effectiveness of counsel are . . . reached,” Grantham,
Thus, if the claims that the defendant wants to raise in the out-of-time appeal can be resolved against him on the face of the record, so that even a timely appeal would have been unsuccessful, “then plea counsel’s failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result.” Smith v. State,
In sum, in deciding a motion for out-of-time appeal, the trial court must hold an evidentiary hearing to determine whether defense counsel’s unprofessional conduct was the cause of the untimeliness only where the motion raises an issue that would have been meritorious on the existing record had a timely appeal been taken. See id.
3. Applying this analysis to this case, we first examine whether the issues that Appellant raised in his motion for out-of-time appeal
Regarding the venue issue, “ ‘[u]nless the character of the place is an essential element of the offense, an indictment which charges the crime to have been committed in a particular county is sufficiently certain as to place.’ ” State v. Meeks,
Appellant’s contention that the indictment failed to properly allege an underlying felony to support his murder conviction under OCGA § 16-5-1 is equally meritless. Appellant pled guilty to malice murder, and as the trial court noted, he appears to be confusing the offense of malice murder, which does not require the commission of an underlying felony, see OCGA § 16-5-1 (a), with the offense of felony murder, which does, see OCGA § 16-5-1 (c). As a result, the malice murder count of the indictment was not defective for failing to charge a predicate felony.
Because the indictment was not defective, Appellant’s final claim, that his trial counsel failed to inform him of those non-existent defects and thereby caused him to enter an unknowing and involuntary plea, is also meritless.
4. Based on the existing record, the issues Appellant seeks to raise are meritless, so a timely direct appeal from the conviction entered on his guilty plea would have been unsuccessful. Accordingly, his counsel was not constitutionally ineffective in not pursuing such an appeal, and the trial court properly denied Appellant’s motion for out-of-time appeal.
Judgment affirmed.
Notes
To be clear, the ineffective assistance at issue here is related solely to counsel’s deficient performance in not timely filing a meritorious appeal, not any alleged ineffectiveness by counsel during the plea hearing or other proceedings.