In 2000, appellant David Leverette entered guilty pleas to charges arising from the malice murder of his wife and was sentenced to life imprisonment plus several terms of years to be served concurrently with each other and with the life sentence.1 In June 2011, appellant filed a motion for out-of-time appeal, which the trial court denied after holding a hearing. Leverette now appeals the denial of his motion for an out-of-time appeal. “An appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record,” and the trial court’s denial of a motion for out-of-time appeal is reviewed for abuse of discretion. Brown v. State, 290 Ga. 321 1 720 SE2d 617 2012. We examine those assertions of error that can be resolved by facts appearing in the record.
1. Appellant contends he is entitled to an out-of-time appeal because, four days before appellant entered his guilty plea in 2000, the trial judge erroneously denied appellant’s motion to recuse the trial judge. The record before us does not contain the motion to recuse, the supporting affidavit see Uniform Superior Court Rule 25, or the trial court’s order denying the motion. However, the transcript of the hearing on the motion to recuse is in the appellate record and from it we discern that the motion asserted that the trial judge had a conflict of interest since he had served as the District Attorney in 1990, when appellant was convicted of the predicate felony supporting the 2000 charge of being a convicted felon in possession of a gun.2 The transcript also reveals that the trial court declined to recuse himself, ruling that this case presented none of the statutorily-required grounds for judicial recusal found in OCGA 15-1-8a.3 OCGA § 15-1-8a prohibits a judge from sitting in any case or proceeding in which the judge has a pecuniary interest; serving in any case or matter in which the judge is related by consanguinity or affinity within the sixth degree to any party interested in the outcome of the case; or sitting in a case or proceeding without the consent of all parties in which the judge has been of counsel or in which the judge presided in an inferior judicature and the judge’s ruling or decision is the subject of review. A Georgia district attorney is “of counsel” in all criminal cases or matters pending in the district attorney’s circuit and is disqualified from serving as a judge in a case or matter that was investigated or the subject of an indictment during the judge’s service as district attorney. King v. State, 246 Ga. 386 7 271 SE2d 630 1980. See also Gude v. State, 289 Ga. 46 2 709 SE2d 206 2011 holding that the same principle is applicable to a judge who formerly served as a senior assistant district attorney with supervisory authority over a lawyer who had actual involvement in an aspect of the criminal matter pending before the judge. However, the fact that a judge in the judge’s previous capacity as district attorney prosecuted the defendant on another charge not currently pending before the judge, is not, standing alone, a ground for disqualification. Fowler v. Strickland, 243 Ga. 30 2 252 SE2d 459 1979. See also Brown v. State, 307 Ga. App. 99 3ai 704 SE2d 227 2010; Lemming v. State, 292 Ga. App. 138 1 663 SE2d 375 2008 finding no error under Canon 3E of the Code of Judicial Conduct in a trial judge’s failure to sua sponte recuse from a case solely because the defendant previously had been prosecuted on another charge by the judge in the judge’s former capacity as a prosecutor. The trial court did not err when it denied Leverette’s motion to recuse.
