Doyle Shane Ray appeals the trial court’s denial of his motion for out-of-time appeal. “The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of that discretion.” Carroll v. State, 270 Ga. App. 569, 570 608 SE2d 533 2004. Ray was convicted of aggravated stalking on December 2 or 3, 2004. On December 15, his trial counsel filed a motion for new trial which was denied on February 16, 2005. No appeal followed. On October 17, 2005, Ray filed a motion for leave to file an out-of-time appeal in which he asserted that trial and appellate counsel rendered ineffective assistance in connection with the filing of his direct appeal. He asserted that his appointed trial counsel was aware of his desire to appeal his conviction and sentence but that he abandoned the case after the motion for new trial was denied, without filing a notice of appeal. He added that he applied for and was granted appointment of appellate counsel so that he could pursue a claim of ineffective assistance against trial counsel, but that appellate counsel informed him that he received the file too late to file a notice of appeal. Ray also requested an evidentiary hearing to determine whether he was entitled to an out-of-time appeal. Without a hearing, the trial judge denied the motion on the ground that he could find “no verification or other evidence for the Court to consider. . .”
“When the defendant loses the right to file a timely direct appeal as a result of the ineffective assistance of his counsel, he is entitled to an out-of-time appeal. It is the remedy for a frustrated right of appeal. However, an out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights.” Citations and punctuation omitted. Hill v. State , 285 Ga. App. 310, 310-311 645 SE2d 758 2007. “Generally, the court should hold an evidentiary hearing to make this determination. Cits. However, where the undisputed facts in the record show that the defendant waived or slept on her appellate rights, no hearing is required. Cits.” Smith v. State , 263 Ga. App. 414, 416 1 587 SE2d 787 2003.
