In May 1998, Phillip Anthony Harwood was indicted on charges of malice murder, felony murder, two counts of aggravated assault, and two counts of burglary in connection with the 1987 shooting death of Lita Sullivan. He was re-indicted in June 1998 in order to add Harwood’s correct name. Harwood waived arraignment and pled not guilty in August 1998. In September 1998, the state filed a notice of intent to seek the death penalty. Harwood’s attorney filed a motion to bar the state from seeking the death penalty, based on the state’s failure to give Harwood notice of its intention to seek the death penalty before he waived arraignment.1 In October 1998, after holding a hearing on the matter, the trial court issued an order allowing the state to re-arraign Harwood in order to correct the procedural error of filing the death penalty notice after Harwood waived arraignment.2 Harwood was re-arraigned in January 1999. In February 2003, while represented by counsel, Harwood entered a negotiated plea of guilty to one count of voluntary manslaughter in exchange for his agreement to testify against co-defendant James Sullivan. The trial court accepted the guilty plea and sentenced Harwood to 20 years in confinement. In January 2009, Harwood filed a motion for an out-of-time appeal. Harwood files this pro se appeal from the trial court’s denial of that motion. We affirm. An out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel. But in order 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 the facts on the record is met.3 Thus, the denial of Harwood’s motion for an out-of-time appeal can be reversed only if the questions he seeks to raise on appeal may be resolved by facts appearing in the record.4 Moreover, the denial of a motion for an out-of-time appeal falls within the trial court’s discretion, and we will not reverse the trial court’s ruling absent an abuse of that discretion.5 Here, we find no such abuse of discretion.
Harwood enumerates three bases for his appeal, namely: 1 that the state’s notice of intent to seek the death penalty was untimely; 2 that re-arraignment “had no legal meaning,” since it did not cure the state’s procedural error; and 3 that his guilty plea was coerced by the trial court, the state, and his attorneys with the false threat that he faced the death penalty.
