Grantham v. State

Hunstein, Justice.

Grantham was indicted for the felony murder of Henry Lamar Jeffcoat and he was separately indicted for an armed robbery at the Riverdale Cinema. The indictments were consolidated for trial on the basis that the crimes were carried out in furtherance of a scheme to operate a crime ring and share the proceeds of the criminal activity. Grantham pled guilty but mentally ill to both charges in June 1995. He was sentenced to life imprisonment for the felony murder and a 20-year concurrent sentence for the armed robbery. In July 1996 Grantham filed pro se motions for out-of-time appeal in each case alleging that his pleas were involuntary. The trial court denied the motions on September 4, 1996 in a consolidated order and Grantham filed a timely pro se notice of appeal.

Two recent cases have addressed the issue of out-of-time appeals and held that the proper analysis is not a two-part test, but consists of a series of threshold determinations. See Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995); Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). An out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel. But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. 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. Smith v. State, supra. 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.

Appellant does not contend that in accepting the guilty pleas the trial court erroneously failed to determine, on the record, that the pleas were voluntary pursuant to Uniform Superior Court Rule 33.7. *636 Rather, he maintains that factors outside of the hearing affected the so-called voluntariness of his pleas in that he was threatened by the prosecutor and was under duress for having to proceed to trial with an undesirable attorney. Under these circumstances, an out-of-time appeal is not mandated because the issues which appellant seeks to raise cannot be resolved by reference to facts contained in the record. The issues of the voluntariness of Grantham’s pleas and the effectiveness of his counsel can be developed only in the context of a post-plea hearing. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996) (direct appeal not available when defendant did not contend that the trial court failed to follow established procedure in accepting his guilty plea, but claimed that his plea was involuntary and his counsel ineffective). Accordingly, it follows that the trial court correctly denied the motion for an out-of-time appeal and that appellant must pursue a habeas corpus action as his remedy. Morrow v. State, supra.

Judgment affirmed.

All the Justices concur, except Benham, C. J., Fletcher, P. J. and Sears, J., who dissent.