Kane v. State

The defendant was not entitled to an out-of-time appeal since the issues he raised regarding the voluntariness of his plea and effectiveness of his trial counsel could not be resolved by reference to facts contained in the record.

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Mike Kane, pro se, appeals the trial court’s denial of his motion for an out-of-time appeal. We affirm. In January 2000, Kane entered a negotiated plea of guilty to armed robbery and aggravated assault. Kane did not file a direct appeal of his guilty plea. In 2003, Kane moved, pro se, for an out-of-time appeal, for appointment of counsel, and to withdraw his guilty plea. In his motion for out-of-time appeal, Kane asserted that 1 the trial court and counsel failed to inform him of his right to appeal; 2 he was not otherwise informed of his appellate rights; and 3 he was improperly sentenced because his convictions merged as a matter of fact. The trial court denied Kane’s motions.

1. “A defendant moving for an out-of-time appeal following a conviction and sentence based on a guilty plea bears the burden of showing two things: first, that he or she actually had a right to file a timely direct appeal; and second, that the right to appeal was frustrated by the ineffective assistance of counsel. Cit.” Jackson v. State, 256 Ga. App. 69 1 567 SE2d 718 2002. The second question is moot if the defendant did not have a right to file a direct appeal in the first place. Grantham v. State , 267 Ga. 635 481 SE2d 219 1997. A defendant has a right to file a timely direct appeal of a guilty plea only if the issue on appeal can be resolved by reference to facts on the record. Id. See also Smith v. State , 266 Ga. 687 470 SE2d 436 1996.

Kane v. State

The defendant was not entitled to an out-of-time appeal since the issues he raised regarding the voluntariness of his plea and effectiveness of his trial counsel could not be resolved by reference to facts contained in the record.

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