In the Supreme Court of Georgia
Decided: September 22, 2014
S14A0921. COULTER v. THE STATE.
HINES, Presiding Justice.
Prisoner Dustin James Coulter files this pro se appeal from the denial of
his motion for an out-of-time appeal following the entry of his guilty pleas to
two counts of malice murder. For the reasons which follow, we affirm.
On May 2, 2006, a Bulloch County grand jury indicted Coulter, his wife
Alexandra Coulter, and their friend Jerry Easters, for two counts each of malice
murder, armed robbery, and possession of a knife during the commission of
murder in connection with the November 21, 2005 armed robberies and fatal
stabbings of Jack Walton Futch and his wife, Paula Franklin Futch. The State
gave notice of its intent to seek the death penalty for Coulter on May 26, 2006,
and the prosecution proceeded under the Unified Appeal Procedure. The
application for interim review was denied by this Court on February 12, 2008.
Following the empaneling of a jury to try Coulter, on November 7, 2008,
Coulter, pursuant to a negotiated agreement, pled guilty to two counts of malice
murder and received concurrent life sentences; the remaining counts were nol
prossed. More than three years later, on February 2, 2012, Coulter filed, inter
alia, a pro se motion to withdraw his guilty pleas. The trial court dismissed the
motion for lack of jurisdiction on February 10, 2012, as the motion was filed
outside the term of court in which the guilty pleas were entered.
Again proceeding pro se, on December 9, 2013, Coulter filed the present
motion for an out-of-time appeal, claiming that he was denied a direct appeal
due to the ineffective assistance of his counsel and inadequate advice about his
appellate rights. As to the issues that Coulter would raise in a granted direct
appeal, he alleged that he was denied the effective assistance of counsel because
of counsel’s failure to advise him of his “right to appeal,” and that his guilty
pleas were not intelligently and knowingly, and therefore voluntarily, entered
as the record is silent regarding venue of the charged crimes, and because the
superior court did not advise him of all of the Boykin1 rights. The superior court
denied the motion on December 13, 2013, after finding that Coulter failed to
1
Boykin v. Alabama, 395 U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969).
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meet the requirements for granting an out-of-time appeal.2
1. The purpose of an out-of-time appeal is to address constitutional
concerns that arise when a criminal defendant is denied a first appeal of right
because the counsel to whom he was entitled to have assist him in that appeal
was professionally deficient in failing to advise him to file a timely appeal, and
that this deficiency caused him prejudice; therefore, an out-of-time appeal is
appropriate when a direct appeal was not taken due to the ineffective assistance
of counsel. Stephens v. State, 291 Ga. 837, 838 (1) (733 SE2d 266) (2012).
However, that is not the end of the analysis because in order to have an
out-of-time appeal on the basis of ineffective assistance of counsel, the
defendant must have had the right to file a direct appeal, and a direct appeal
from a judgment of conviction and sentence entered following a guilty plea is
available to the defendant only if the issue on appeal is capable of resolution by
reference to facts on the record. Id. Consequently, a determinative factor in the
availability of an out-of-time appeal when the defendant has pled guilty is
2
Coulter filed a pro se notice of appeal to the Court of Appeals, and the case was transferred
to this Court. The appeal was docketed in this Court’s 2014 April Term, and was submitted for
decision on the briefs.
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whether the appeal can be decided based upon the existing record; any question
of the effectiveness of counsel is not reached unless it can be resolved by
reference to facts on the record. Id.
Thus, the first inquiry is whether the issues that Coulter seeks to appeal
can be resolved on the existing record because, if not, he would have had no
right to file even a timely appeal, and therefore, would not be entitled to an
out-of-time appeal. Id. If, indeed, his claims require expansion of the record, he
would have to pursue them by way of a petition for writ of habeas corpus. Id.
But, if in his motion for an out-of-time appeal, Coulter has raised an issue that
can be determined on the existing record, concerns regarding the effectiveness
of his counsel are reached, and he must show that his counsel was ineffective in
not filing a timely appeal under the test set forth in Strickland v. Washington,
466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Such test places the burden
on a defendant to show both that his trial counsel provided deficient
performance, and that but for such deficiency, there is a reasonable probability
that the outcome of the proceeding would have been different, which in the
present context means that an appeal would have been successful. Stephens v.
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State, supra at 838-839 (1). This Court need not address both parts of the
Strickland test if the defendant makes an insufficient showing on one; in fact,
the Court need not determine whether counsel's performance was deficient
before examining any prejudice suffered by the defendant as a result of the
alleged deficiencies. Stephens v. State, supra at 839 (1). Consequently, if the
claims that the defendant seeks to raise in an out-of-time appeal can be resolved
against him on the face of the record, so that even a timely appeal would not
have been successful, then the failure of plea counsel to advise the defendant to
file such an appeal cannot be found professionally deficient, nor can any
prejudice result. Id. Thus, in such circumstances, the trial court may deny the
defendant’s motion for an out-of-time appeal without an evidentiary hearing.
Id. This is precisely such a case.
2. In this appeal, Coulter enumerates the same claimed errors that he
raised in the superior court in support of his motion for an out-of-time appeal.
And, it is apparent that such claims can be resolved, albeit adversely to Coulter,
on the present record.
(a) Coulter first contends that his pleas were not “intelligent, knowing, and
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voluntary” because venue of the crimes had to be proven and the record is silent
on venue. However, the indictment returned by the Bulloch County grand jury
to which Coulter pled guilty alleged that the malice murders occurred “in the
county aforesaid,” which was Bulloch County. Furthermore,
although the State would have had to prove the facts establishing venue at any
trial, when Coulter pled guilty to all the allegations in the malice murder counts
of the indictment, he was admitting to all of the elements of the crime of malice
murder, and he waived the defense of failure to establish venue. Wright v. Hall,
281 Ga. 318, 319 (1) (638 SE2d 270) (2006).
(b) Coulter further contends that the plea court failed to advise him of all
of his Boykin rights, specifically the right to confront witnesses against him, the
right to compulsory process, and the privilege against self-incrimination at trial.
But, the record reflects otherwise. During the plea hearing, Coulter affirmed
that his two defense attorneys had advised him of all of his rights as set forth in
his sworn statement. Then the plea court sufficiently went over the Boykin
rights with Coulter during the plea hearing, and prior to the acceptance of his
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guilty pleas.3 See Burns v. State, 291 Ga. 547, 548 (1) (a) (731 SE2d 681)
(2012) (Boykin does not require “magic words” to convey the defendant's rights
during a guilty plea proceeding).
(c) Finally, Coulter maintains that his plea counsel was deficient for not
advising him of his “right” to pursue a direct appeal, as evidenced by the silence
of the record in this regard, and that he was prejudiced thereby because a timely
direct appeal would have shown the State’s failure to prove venue and the plea
court’s failure to properly advise him of his Boykin rights.
But, as has already been discussed, there is no merit to Coulter’s claims
regarding venue and the Boykin rights, therefore, a timely appeal making such
3
The transcript of the plea hearing reflects that Coulter answered affirmatively to each of
these inquiries by the plea court:
“[Y]ou understand you would have an absolute entitlement to a jury trial. We’ve already
selected a jury all day yesterday. If you elected to have a jury trial, then you would be
presumed innocent of the charges and the State would have a burden of overcoming that
presumption of innocence by proof beyond a reasonable doubt that you are guilty of the
charges. Do you understand that? . . . You understand that if you elected to go through with
your jury trial you would be able to cross-examine or ask questions of the witnesses that the
State might bring? . . . You would be able to compel witnesses by subpoena to come in and
testify for you. . . . You could take the stand and testify if you wanted to, but you could not
be compelled to because this is a criminal case. You don’t have to put up any evidence at all.
You could sit there mute, if you wanted to. You understand that? . . . You’re giving up those
rights by offering these pleas of guilty to counts one and two, which are the two [m]urder
counts.”
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claims would not have been successful. Consequently, any failure by Coulter’s
counsel to advise him to file such an appeal cannot be found to be a deficiency
in counsel’s representation or a cause of any prejudice to Coulter. See Division
1, supra.
It was not error to refuse to grant Coulter an out-of-time appeal.
Judgment affirmed. All the Justices concur.
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