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Brown v. State

Defendant who was represented by counsel was not entitled to an out-of-time appeal just because he believed the trial court's correct but incomplete statement that he could not appeal from his guilty plea.

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In 1996 Christopher Brown pled guilty to aggravated assault and possessing cocaine with intent to distribute. In 1998 he moved to file an out-of-time appeal, claiming that the judge at the plea hearing failed to determine that Brown understood the nature of the offenses charged or that there was a factual basis for the cocaine charge. The same judge who had accepted Brown’s guilty plea denied his motion for an out-of-time appeal. Brown now appeals from the denial of that motion.

When a defendant pleads guilty and then seeks an out-of-time appeal from that plea, he must make the threshold showing that he would have been entitled to file a timely direct appeal from the plea because the issues he is raising can be decided from facts appearing in the record.1 If the defendant makes that showing, he must then show that he did not timely file a direct appeal because he received ineffective assistance of counsel.2 In the instant case, Brown has made the threshold showing, but not the second, so he is not entitled to an out-of-time appeal.

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