Smith v. State

Carley, Justice.

After Marvin Smith pled guilty to two counts of murder, he did not file a timely direct appeal. He subsequently filed a motion for an out-of-time appeal, contending that trial counsel rendered ineffective assistance since Smith was not informed of his right to appeal. Smith appeals from the trial court’s denial of his motion for an out-of-time appeal.

An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. Lane v. State, 263 Ga. 517, 518 (2) (436 SE2d 9) (1993). It is “the remedy for a frustrated right of appeal. . . . [Cit.]” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). Accordingly, Smith’s motion for an out-of-time appeal was properly denied unless he had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel.

A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However, Smith’s judgments of conviction and sentences were entered after he pled guilty. A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea “only if the issue on appeal can be resolved by facts appearing in the record. [Cit.]” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). Accordingly, the denial of Smith’s motion for an out-of-time appeal can be reversed “if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996).

As the movant, Smith had the burden to show a “ ‘good and sufficient’ ” reason for his entitlement to an out-of-time appeal. Rowland v. State, supra at 875 (2). Smith could not meet that burden merely by showing that he was not informed of his “rights” at the guilty plea hearing, but was required to show that he actually had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel. If Smith “had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, he was not entitled to be informed of a non-existent ‘right’ to appeal.” Morrow v. State, supra at 4. Smith could not meet his burden of proof without showing that the questions he would raise on appeal could be resolved by facts appearing in the record, including the transcript of his guilty plea hearing. Caine v. State, supra. The defendant in Morrow affirmatively failed to meet his burden because the ques*688tions he proposed to raise on appeal could not be resolved by facts appearing in the record. Smith also failed to meet his burden because he proposed no questions to raise on appeal which could be resolved by facts appearing in the record. Instead he merely asserted that he was not informed of his “right” to appeal. As has been pointed out, there is no absolute right to appeal from a judgment of conviction entered on a guilty plea.

Accordingly, Smith’s failure to meet his burden of showing a good and sufficient reason for his entitlement to an out-of-time appeal requires affirmance of the trial court’s denial of his motion for an out-of-time appeal.

Judgment affirmed.

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