Upperman v. State

The matters, which the defendant raised in his motion for an out-of-time appeal of his 1999 negotiated guilty plea to three counts of malice murder and one count of armed robbery, could be resolved against him based on the existing record.

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Inmate Adam Upperman, pro se, appeals from an order of the Superior Court of DeKalb County dismissing his motion for an out-of-time appeal. For the reasons which follow, we affirm. On August 5, 1999, Upperman entered negotiated pleas of guilty to three counts of malice murder and one count of armed robbery. Pursuant to the plea agreement, on September 29, 1999, he received a life sentence for each of the malice murders and twenty years in prison for the armed robbery, all sentences to be served concurrently. In 2003, Upperman filed a motion to void judgment, and in 2009, he filed an extraordinary motion for new trial, both of which were denied and no appeals were taken from the denials. Over ten years after the pleas, in January 2010, Upperman filed the present pro se motion for an out-of-time appeal alleging principally that he was denied his right to file a timely direct appeal due to trial counsel’s “negligence or ignorance,” asserting he was not adequately informed of his appeal rights.1 In April 2010, the trial court dismissed Upperman’s motion for an out-of-time appeal, stating that Upperman’s appellate rights could not have been frustrated by counsel inasmuch as, based upon the claims asserted, he would not have been entitled to file an appeal from the judgment entered on his guilty pleas because the issues he sought to raise could not be resolved by reference to facts of record, and accordingly, Upperman’s remedy was a habeas corpus proceeding. Upperman filed a timely notice of appeal to this Court.

1. Upperman cannot prevail in this appeal of the adverse ruling on his motion for an out-of-time appeal because the matters he raised in the motion either can be resolved against him based upon the existing record, or as in his principal claim of the ineffectiveness of trial counsel, indeed must be raised in a habeas corpus action.2 Marion v. State , 287 Ga. 134 695 SE2d 199 2010.

Upperman v. State

The matters, which the defendant raised in his motion for an out-of-time appeal of his 1999 negotiated guilty plea to three counts of malice murder and one count of armed robbery, could be resolved against him based on the existing record.

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