dissenting.
I dissent. The majority misconstrues the basic issue before this Court, all but eradicates the limited rights of appeal of defendants who plead guilty, and denies Morrow his fundamental due process and equal protection rights under the Fourteenth Amendment to the United States Constitution by resolving the merits of any arguments that Morrow could raise on an appeal before he has had the opportunity to make those arguments.
1. First, the majority fails to recognize that the trial court improperly ruled on Morrow’s motion seeking permission to file an out-of-time appeal without making the determinations required by our precedent.
In support of his motion, Morrow argued that neither the trial court nor his attorney informed him of his right to appeal his conviction and to obtain court-appointed counsel for such an appeal. Morrow argued that his attorney’s failure to inform him of his rights of appeal rendered his attorney’s assistance ineffective, warranting the grant of the motion for out-of-time appeal. In response to Morrow’s motion, the trial court, without holding a hearing on the motion, issued a mere one-sentence order which stated only that upon consideration of the record, the motion for permission to file an out-of-time *5appeal was denied.1
Our case law establishes that a motion for permission to file an out-of-time appeal will be granted, inter alia, when a criminal defendant’s failure to file a timely appeal is due to his attorney’s failure to inform him of his right to appeal his conviction and obtain court-appointed counsel for such an appeal.2 On the other hand, an out-of-time appeal will not be allowed if the defendant is informed of his right of appeal, but nonetheless fails to file a timely appeal due to his own inaction, or in an effort to purposefully delay the appeal of his conviction to his own advantage.3 Accordingly, it is well-established that disposition of a motion for permission to file an out-of-time appeal “requires a determination whether the ultimate responsibility for the failure to file a timely appeal rested with the appellant or with counsel.”4
The trial court’s order failed to make the dispositive determination of whether Morrow’s failure to file a timely appeal was due to his attorney’s failure to inform him of his right to do so, as Morrow claims, or whether Morrow was informed of his rights of appeal, but simply slept on those rights. Nor can this crucial determination be made upon a review of the record in this case. The trial court’s failure to make this determination requires that its order denying Morrow’s motion for permission to file an out-of-time appeal be vacated, and the matter remanded so that the determination can be made.5
2. Incredibly, the majority rules that because “Morrow had no right to file even a timely appeal from [his] . . . guilty plea,” he therefore “was not entitled to be informed of a non-existent ‘right’ to appeal.” Op. at 4. However, regardless of what the majority may wish was the state of our law, Morrow did not waive his appeal as of right merely by pleading guilty. So long as Morrow was entitled to an appeal as of right, he was entitled to be informed of that right, for “[t]he right to appeal an adverse judgment is indeed a hollow one if the one to whom [it] accrues is not informed of its existence.”6
An appeal lies from a judgment entered on a guilty plea, so long *6as the question on appeal is one which may be resolved by the facts appearing in the record.7 In this case, Morrow sought permission to file an out-of-time appeal challenging the voluntariness of his guilty pleas by relying upon psychological reports which are a part of the record in this case. Accordingly, the issue Morrow sought to raise in his out-of-time appeal, if that appeal was allowed, is one which can be resolved by reference to the facts contained in the record — either the psychological reports will support Morrow’s claim, or they will not. Therefore, because an appeal as of right does lie from the judgment against Morrow, he was entitled to be informed of his rights of appeal, even though he pled guilty.
3. The majority ostensibly bases its affirmance of the trial court upon its belief that the issues which Morrow seeks to raise on appeal cannot be decided from the record. However, the majority contradicts its purported belief by determining that the psychological reports which Morrow seeks to rely upon, were his appeal allowed, “do[ ] not demand a finding that Morrow[’s] . . . guilty pleas were not voluntary.” Op. at 3. The majority even goes so far as to address the main argument that it conjectures Morrow would raise in an appeal, if allowed, before Morrow has even been granted either (1) the right to file an appeal, or (2) the opportunity to make an argument on appeal.8 By reaching the merits of Morrow’s claim on appeal that his guilty plea was not voluntary, the majority has expressly recognized that the appeal can be resolved on the basis of the record. Moreover, by resolving the arguments which it believes Morrow would raise in an appeal, if allowed, before Morrow has had an opportunity to make those arguments, the majority has denied Morrow his fundamental rights of due process and equal protection.
Having granted a right of appeal to all convicted criminal defendants,9 the State is forbidden by due process and equal protection concerns from arbitrarily excluding certain parties from exercising that right.10 Furthermore, due process and equal protection require that, once the State has created a right of appeal, it must “offer each defendant a fair opportunity to obtain an adjudication on the merits of *7his appeal.”11 The majority has denied Morrow such a “fair opportunity” by reducing his right of appeal to a “meaningless ritual” by precluding him from effectively asserting his appellate arguments.12 By resolving the merits of arguments the majority has conjectured that Morrow could raise on appeal before Morrow has even had the opportunity to make his arguments himself, the majority has denied Morrow this basic right to assert his appellate arguments before they Eire decided, in violation of the Fourteenth Amendment’s guarantees of due process and equal protection.
Decided November 6, 1995 — Reconsideration denied December 4, 1995. David Wayne Morrow, pro se. J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.I am authorized to state that Presiding Justice Fletcher joins in this dissent.
Different trial judges presided over Morrow’s entry of guilty pleas and motion for out-of-time appeal.
Birt v. Hopper, 245 Ga. 221, n. 1 (265 SE2d 276) (1980); Bell v. Hopper, 237 Ga. 810, 810-811 (229 SE2d 658) (1976); Henry v. Hopper, 235 Ga. 196, 198 (219 SE2d 119) (1975); Thornton v. State, 216 Ga. App. 202, 203 (453 SE2d 802) (1995); Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985) (Carley, J.); Harper v. State, 154 Ga. App. 550, 551 (269 SE2d 56) (1980).
Henry, 235 Ga. at 198; Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131) (1991); Cannon, 175 Ga. App. at 742.
Evans, 198 Ga. App. at 538. Accord Cannon, 175 Ga. App. at 742.
See Cannon, 175 Ga. App. at 742-743; Hasty v. State, 213 Ga. App. 731 (445 SE2d 836) (1994).
Kreps v. Gray, 234 Ga. 745, 747 (218 SE2d 1) (1975).
Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).
Even before Morrow has been allowed to file an appeal, the majority has framed his appellate issue — “According to Morrow, [the psychological report] shows that serious issues of his competency and sanity should have been resolved by a psychiatric examination and a competency hearing.” Op. at 3. The majority also raises sanity and competency issues which it speculates would be raised on appeal. However, issues which may or may not be raised on any appeal allowed are not before the Court at this time; the only issue is the propriety of the trial court’s order.
OCGA § 5-6-33.
Evitts v. Lucey, 469 U. S. 387, 393 (105 SC 830, 83 LE2d 821) (1985); Griffin v. Illinois, 351 U. S. 12, 17-20 (76 SC 585, 100 LE 891) (1956).
Evitts, 469 U. S. at 405; accord Logan v. Zimmerman Brush Co., 455 U. S. 422, 429-430 & n. 5 (102 SC 1148, 71 LE2d 265) (1982).
Douglas v. California, 372 U. S. 353, 358 (83 SC 814, 9 LE2d 811) (1963); Evitts, supra. See Keenan v. Hardison, 245 Ga. 599, 601 (266 SE2d 205) (1980) (“ ‘nothing short of notice . . . and an opportunity to be heard . . . will satisfy the due process clause of the Constitution of this State.’ ”).