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Marion v. State

The malice murder count of the defendant's indictment was sufficient to charge him with that crime.

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John Marion appeals from the trial court’s denial of his motion for out-of-time appeal. For the reasons that follow, we affirm. In December 1996, Marion was indicted for murder, and the State sought the death penalty. On May 31, 2002, in exchange for the State agreeing not to seek the death penalty, Marion pleaded guilty to murder and armed robbery, received consecutive life sentences, and agreed, among other things, “to waive and give up any right he may have to appeal the terms of this agreement.” On May 1, 2009, Marion filed a motion for out-of-time appeal and a motion for an evidentiary hearing. The trial court denied both motions, ruling that, because Marion had waived his appellate rights as part of his plea agreement, he had to successfully attack the validity of that waiver in an appropriate habeas corpus petition before he could file a motion for out-of-time appeal.

1. Marion asserts that the malice murder count of his indictment failed to allege an act with a specific intent to kill, that it was therefore void, that his plea of guilty did not waive the defense that the indictment charged no crime, that he was therefore entitled to raise this issue in an out-of-time appeal, and that the trial court erred in denying his motion. See Smith v. Hardrick , 266 Ga. 54, 56 464 SE2d 198 1995 noting that a guilty plea waives all defenses other than that the indictment fails to charge a crime.

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