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Burch v. State

Even if the trial court failed to personally advise the defendant of his Boykin rights during his plea colloquy, the record showed that the defendant was otherwise advised of those rights in connection with his guilty pleas to murder, armed robbery and aggravated assault.

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In November 1995, Levon Burch entered a plea of guilty and was convicted of murder, armed robbery, and aggravated assault. More than 16 years later, he filed a motion for leave to bring an out-of-time appeal from his conviction. The trial court found, however, that “the issues that Burch sought to raise in his out-of-time appeal cannot be determined wholly by reference to the record,” and for that reason, it denied his motion. From that denial, Burch appeals, and we affirm.

As we have explained before, a defendant “is not entitled to an out-of-time appeal unless he had the right to file a direct appeal.” Henderson v. State, 293 Ga. 6, 7 743 SE2d 19 2013 citation omitted. “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.” Id. citation and punctuation omitted. 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.” Id. citation and punctuation omitted. We now consider—just as the trial court did—whether Burch seeks to raise claims in his out-of-time appeal that can be resolved solely by reference to the existing record.1

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