Dwayne Simpson pled guilty to aggravated assault in 1995. Almost eight years later, Simpson moved for an out-of-time appeal, arguing that his trial counsel’s ineffectiveness frustrated his right to a direct appeal. The trial court denied the motion, and Simpson appeals, proceeding pro se. For reasons that follow, we affirm. The denial of a motion for out-of-time appeal falls within the trial court’s discretion, and we will not reverse the trial court’s ruling absent an abuse of that discretion.1 Furthermore, although an out-of-time appeal is appropriate when counsel’s ineffectiveness frustrates a defendant’s right to appeal, “a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea.”2 As explained by our Supreme Court, 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. 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.3 1. Simpson points to two substantive issues that he contends entitle him to a direct appeal. First, he argues that the sentencing judge improperly intervened in his plea discussions with defense counsel, undermining the voluntariness of his plea. He further claims that defense counsel’s lack of familiarity with certain evidentiary rules prevented counsel from properly advising him regarding his chances at trial.
To support these claims, Simpson cites his habeas corpus transcript, which he attached to his motion below. That transcript, however, cannot provide the basis for a direct appeal from Simpson’s guilty plea. “The requirement that appeal issues following a guilty plea must be capable of resolution by reference to facts on ‘the record’ relates to the record of the judgment sought to be appealed.”4 In other words, the record developed in a collateral attack on a conviction —such as through habeas corpus proceedings —”does not produce a right to an appeal from the guilty plea and judgment.”5
