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Robertson v. State

The record belied the defendant's claim that he withdrew his guilty plea to burglary as a recidivist.

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In March 2001, David Robertson pleaded guilty to burglary as a recidivist, and the trial court sentenced him to 18 years in jail. In September 2005, Robertson moved for an out-of-time appeal. The trial court denied the motion, and this appeal ensued.1 Finding no reversible error, we affirm. A defendant who pleads guilty to a crime has no unqualified right to a direct appeal.2 However, an out-of-time appeal may be appropriate “where, as a result of ineffective assistance of counsel, a timely direct appeal was not taken.”3 In order to show entitlement to a direct appeal from a guilty plea, Robertson must establish that his claims can be resolved solely by reference to the facts contained in the record.4 We will affirm a trial court’s denial of a motion for an out-of-time appeal absent abuse of discretion.5

1. Robertson contends that the trial court erred in denying his motion because he withdrew his guilty plea. This contention is belied by the record. When Robertson discovered that, as a recidivist, he would be required to serve the maximum time in jail, he initially withdrew his plea, and the trial court began to seat a jury. During a recess, Robertson apparently negotiated a plea. The trial court then informed Robertson of the charges against him, listed the rights Robertson would waive by pleading guilty, and was assured that Robertson had not been threatened or coerced into pleading guilty. At that point, the court asked Robertson how he would like to plead, and Robertson responded, “guilty.” Robertson made no additional attempt to withdraw his plea. Thus, Robertson’s current argument lacks merit.6

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