In 2001, Bradford Barlow was charged with murder, and the State filed notice of its intent to seek the death penalty. In 2003, he pled guilty to felony murder, and the trial court sentenced him to life imprisonment. In 2006, Barlow filed a pro se motion for an out-of-time appeal, asserting that he received ineffective assistance of counsel and had not been advised by the trial court that he had the right to appeal. The trial court denied the motion, concluding that “the issues raised by the defendant in this case cannot be resolved by facts appearing in the record.” Barlow appeals pro se from the trial court’s order. “A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea.” Smith v. State , 266 Ga. 687 470 SE2d 436 1996. Compare Carter v. Johnson , 278 Ga. 202, 204 599 SE2d 170 2004 right to direct appeal from denial of motion to withdraw 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. Cit.” Morrow v. State , 266 Ga. 3 463 SE2d 472 1995. Contrary to Barlow’s contention, the trial court was not obligated to inform him of this qualified right. See Syms v. State , 240 Ga. App. 440, 441 1 523 SE2d 42 1999. 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. Cit. 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. Grantham v. State , 267 Ga. 635 481 SE2d 219 1997. Thus, defense counsel’s obligation to inform the defendant of the right to appeal from the judgment and sentence entered on a guilty plea arises ” ‘only if the issue on appeal can be resolved by facts appearing in the record. Cit.’ Cit.” Smith v. State , supra.
Instances of alleged ineffectiveness of trial counsel, other than the failure to advise the defendant of the qualified right of appeal, generally are not relevant considerations, since they usually cannot be resolved with reference to facts appearing on the record as it then exists. Thorpe v. State , 253 Ga. App. 263, fn. 1 558 SE2d 804 2002. A challenge to effectiveness requires a determination of both deficient performance and prejudice, which normally “can be developed only in the context of a post-plea hearing. Cit.” Grantham v. State , supra at 636. See also Stewart v. State , 268 Ga. 886, 887 494 SE2d 665 1998. With regard to an out-of-time appeal, the only relevant effectiveness factor is whether the defendant had a possible ground for appeal about which his lawyer failed to inform him. See Thorpe v. State , supra. If Barlow ” ‘had no right to file even a timely notice of appeal from the judgment of conviction entered on his guilty plea, he was not entitled to be informed of a non-existent “ right” to appeal.’ Cit.” Smith v. State , supra.
