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Grimmette v. State

Defendant was not entitled to an out-of-time appeal from his 1985 convictions because resolution of his claims required him to establish facts not in the record.

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In 1985, Grimmette entered pleas of guilty to charges of malice murder, kidnapping with bodily injury, aggravated assault, terroristic threat, and two counts of burglary in connection with the killing of his former wife, Gwendolyn Grimmette; the State did not seek the death penalty. Grimmette did not appeal at that time. In July 2000, he moved for an out-of-time appeal, and the court denied the motion. He appeals, and we affirm.1

1. The trial court determined that an out-of-time appeal was not warranted as to Grimmette’s claims of ineffective assistance of counsel, lack of voluntariness due to mental impairment and medication at the time of the plea, and lack of understanding of the elements of the crimes of which he was charged, because these issues could not be decided on the record. The trial court’s ruling is correct. “In order for an out-of-time appeal to be available to a defendant on the basis of alleged ineffective assistance of counsel, the defendant must have had the right to file a direct appeal, and in the case of a guilty plea, a direct appeal will lie only if the issue on appeal is capable of resolution by reference to facts on the record.” Stewart v. State, 268 Ga. 886, 887 494 SE2d 665 1998. Resolution of these claims would have required facts to be established that were not on the record and therefore no out-of-time appeal is available.2

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