In 1992, Jermarco Hicks pled guilty to charges of murder and armed robbery. He was represented by counsel at the hearing where the pleas were tendered and accepted. Hicks did not appeal from the judgments of conviction and sentences entered on the pleas. In 2004, however, he did file a pro se “Motion for Void Judgment,” which was, in essence, a motion to withdraw his guilty pleas. The trial court dismissed the motion because it was untimely, and this Court affirmed. Hicks v. State , 279 Ga. 303 612 SE2d 801 2005. During the pendency of that appeal, Hicks filed a pro se motion for an out-of-time appeal from the judgments of conviction and sentences entered on his 1992 guilty pleas. The trial court denied that motion on October 6, 2005. Hicks attempted to appeal, but the clerk of the trial court returned the notice of appeal and his request to proceed in forma pauperis. Hicks then filed a pro se motion seeking an out-of-time appeal from the October 6, 2005 order. After conducting a hearing, the trial court granted the motion, finding that Hicks had made a timely attempt to appeal the order, but that his effort had been frustrated by errors committed by its clerk’s office. Accordingly, Hicks now appeals pro se from the October 6, 2005 order which denied his motion for an out-of-time appeal from the judgments of conviction and sentences entered on his guilty pleas. 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.
Accordingly, the denial of Hicks’ motion for an out-of-time appeal can be reversed “if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Cit. Smith v. State , 266 Ga. 687 470 SE2d 436 1996.
