Morrow v. State

Carley, Justice.

Morrow pled guilty to murder, conspiracy to commit murder, theft by taking, and two counts each of armed robbery and concealing the death of another person. The trial court entered judgments of conviction and sentences on the guilty pleas. Several years later, Morrow filed a motion for out-of-time appeal on the ground that he was never advised of his right to appeal. The trial court denied the motion and Morrow appeals.

An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Henderson v. State, 265 Ga. 317 (2) (454 SE2d 458) (1995). However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).

Morrow seeks to challenge the voluntariness of his guilty pleas, relying upon a psychological report in the record, which indicated that he was psychotic and out-of-touch with reality. According to Morrow’s briefs on appeal, this report shows that serious issues of his competency and sanity should have been resolved by a psychiatric examination and a competency hearing. However, it is well-settled that “[l]egal insanity is not established by a medical diagnosis that an individual suffers from a mental illness such as a psychosis. [Cits.]” Lawrence v. State, 265 Ga. 310, 312 (2) (454 SE2d 446) (1995). It is equally well-settled that “[a] person who is mentally ill can be competent to make a voluntary confession. [Cit.]” Johnson v. State, 256 Ga. 259, 260 (4) (347 SE2d 584) (1986). It is no less true that a mentally ill person can be competent to stand trial. Strickland v. State, 247 Ga. 219, 220 (2, 3) (275 SE2d 29) (1981); Allanson v. State, 158 Ga. App. 77, 78 (2) (279 SE2d 316) (1981). Likewise, a mentally ill person can be competent to plead guilty, as the standard of competency for pleading guilty is the same as the competency standard for standing trial. Godinez v. Moran, 509 U. S._ (II) (A) (113 SC 2680, 125 LE2d 321) (1993).

Therefore, the psychologist’s report certainly does not demand a finding that Morrow was not competent to plead guilty and that his guilty pleas were not voluntary. Neither does the report demand a finding that Morrow was competent to plead guilty. Indeed, the psychologist’s report is dated one and one-half months before entry of the guilty pleas and expresses no opinion as to Morrow’s ability at the time of trial to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to render his attorneys such assistance as a proper *4defense to the indictment preferred against him demanded. See Norris v. State, 250 Ga. 38, 40 (3) (295 SE2d 321) (1982).

Mental competency is a question of fact. Strickland v. State, supra at 221 (3). Assuming that the psychological report may be some evidence that would have authorized the trial court to appoint a psychiatrist or to hold a competency hearing, it clearly is not sufficient to resolve the question of Morrow’s competence to enter a guilty plea. Therefore, the issue which Morrow seeks to raise in his out-of-time appeal cannot be resolved only by reference to facts contained in the record. See Smith v. State, supra. Compare Fuller v. State, 159 Ga. App. 512 (284 SE2d 29) (1981) (cited in Smith). Since Morrow had no right to file even a timely notice of appeal from the judgment of conviction entered on this guilty plea, he was not entitled to be informed of a non-existent “right” to appeal. It follows that the trial court correctly denied Morrow’s motion to file an out-of-time appeal in this case. Morrow’s only available remedy is habeas corpus. See Mullins v. Hopper, 242 Ga. 123 (249 SE2d 606) (1978); Peterman v. Caldwell, 229 Ga. 394 (191 SE2d 840) (1972).

Judgment affirmed.

All the Justices concur, except Fletcher, P. J., and Sears, J., who dissent. Hunstein, J., disqualified.