Johnson v. State

During a jury trial, Charles Johnson, Jr., pled guilty to felony murder, aggravated assault, family violence battery, cruelty to children in the third degree, and arson in the first degree.1 Johnson appeals pro se contending that the trial court erred in denying his motion for an out-of-time appeal. Finding no error, we affirm.

Johnson contends that, because he did not enter his guilty plea freely and voluntarily, and because Count Three of his indictment charging him with aggravated assault was void, the trial court erred in denying his motion for an out-of-time appeal. In evaluating Johnson’s claims, we must keep in mind that a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. 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. . . . 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 facts on the record is met. Citations and punctuation omitted. Barlow v. State , 282 Ga. 232, 233 647 SE2d 46 2007. “The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court and the court’s decision will not be reversed absent an abuse of that discretion.” Citation omitted. Moore v. State , 285 Ga. 855, 856 1 684 SE2d 605 2009.