SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 3, 2016
In the Court of Appeals of Georgia
A16A0907. CHISM v. THE STATE.
BARNES, Presiding Judge.
Deandre Chism plead guilty to armed robbery, kidnapping, and other offenses
in 2005, and was sentenced to life plus ten years. After repeated unsuccessful
attempts to obtain a copy of his plea transcript and other documents, in 2015 Chism
filed a pro se motion for an out-of-time appeal. The trial court denied the motion, and
for the reasons that follow, we affirm.
In his motion for an out-of-time appeal, Chism argued that on November 11,
2005, three days after he pled guilty and was sentenced, he asked his court-appointed
lawyer to file either a motion to withdraw his plea or an appeal. Attached to his
motion is a letter from Chism’s appointed trial counsel to the county public
defender’s office relaying Chism’s requests, and noting that counsel had taken no
action. In July 2006, Chism made his first request to the clerk of court for a copy of
his plea transcript and other documents pertaining to his case, to which the clerk
responded by saying a representative could come to the court and make copies of the
record for 25 cents per page. Alternatively, if Chism requested specific documents,
the clerk could prepare a bill of costs to be paid before copies would be made and
transmitted to him, or he could seek a copy of his file from his lawyer. The clerk also
directed Chism to contact the court reporter to obtain a copy of the hearing transcript.
In August 2006, Chism sent a request for a copy of his file and the plea hearing
under the Open Records Act, and on the request is written: “Motion denied.
Defendant was represented by counsel who may have pre-trial documents. . . . [T]he
court reporter will supply the plea transcript upon request and remuneration. No
appeal has been filed, and time for appeal has expired. This 16 August 2006.
[Signature,] Judge.”
Chism filed additional requests for a copy of the record and the plea hearing
transcript, including pauper’s affidavits, in September 2006 and in May 2007. The
trial court clerk responded to the May 2007 request as she did to the July 2006
request. In March 2008, Chism filed a “Petition – Application for Case Record and
Transcripts of Proceedings” and a “Request to Proceed in Forma Pauperis,”
explaining that he sought the records because he wanted to file habeas corpus
petitions and could not make the needed prima facie showing without them. The trial
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court wrote “Denied, this 27 March 2008” on the petition, and on April 10, 2008,
Chism filed a notice of appeal from that denial. The trial court clerk sent Chism a bill
of costs for $254 on April 25, 2008, and the trial court dismissed the appeal in August
2008 because Chism had not paid the costs.
Chism continued trying to obtain a copy of the record and plea transcript in this
case, filing pleadings in November 2008, January 2009, September 2009, May 2010,
and April 2013 The trial court issued numerous orders in response, noting in its order
of November 2013 that it had already denied Chism’s request five times. Finally, in
February 2015, Chism filed a motion for an out-of-time appeal, arguing that neither
the trial court nor his trial counsel told him he could appeal, that he told his trial
counsel he wanted to appeal or move to withdraw his plea, and that his trial counsel
was ineffective in ten specific areas. He also argued that his kidnapping conviction
could not be sustained because the element of asportation was absent, per Garza v.
State, 284 Ga. 696 (2008).
The trial court denied Chism’s motion because first, Garza was decided more
than three years after Chism’s plea and he had no direct appeal pending, and therefore
the requirement that the State show more than “slight movement” to establish the
essential element of asportation in a kidnapping charge did not apply. Further, the
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facts proffered by the State at Chism’s plea were that Chism held a shotgun to the
head of his taxi driver victim and forced him to drive into a deserted area before
robbing him, which satisfied even the more stringent requirements of Garza. Second,
the trial court denied Chism’s motion because his claims of ineffective assistance
could not be resolved by reviewing the current record and transcript; thus, if he were
granted a direct appeal, “there would be no record upon which to base the various
claims of ineffective assistance which he is now seeking to raise.”
Chism filed a notice of appeal in March 2015, and the clerk sent him a bill of
costs. Chism filed a request to proceed as a pauper in September 2015, and shortly
after that he filed a second motion for an out-of-time appeal. In an order issued in
December 2015, the trial court noted that it could require the State to produce Chism
for a hearing to consider whether the appeal should be dismissed for failure to pay
costs or file a timely affidavit of indigency, but the court would still be required to
address Chism’s request to proceed in forma pauperis. The court continued,
The state’s trial judges face a daily struggle to find balance between
failvly addressing the voluminous filings by prison inmates and ensuring
those with arguable merit are addressed in a timely fashion to ensure that
colorable claims are efficiently heard. This case is but one small
example of that issue. This court finds the best course in this case is to
find the defendant to be indigent based upon his most recent filing and
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directs the Clerk to submit the record from the Notice of Appeal to the
Court of Appeals.
This appeal was then docketed in this court on February 4, 2016. The record
includes the indictment, numerous pre-trial motions filed by Chism’s trial counsel,
including a motion to suppress Chism’s custodial statements and a motion and order
granting funds for a mental health evaluation of Chism, voluminous discovery from
the State, the plea hearing transcript, and all of Chism’s post-conviction filings and
the trial court’s responses thereto.
We find no error in the trial court’s decision to deny Chism’s motion for an
out-of-time direct appeal from the judgment and sentence entered on his guilty plea,
because his ineffective assistance claims cannot be resolved favorably based on the
current record. While a defendant has an absolute right to a direct appeal from a
conviction and sentence entered after a jury or bench trial, a defendant who enters a
plea of guilty has no right to a direct appeal. Smith v. State, 266 Ga. 687, 687 (470
SE2d 436) (1996). Instead,
[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. The ability to decide the appeal based
on the existing record thus becomes the deciding factor in determining
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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.
Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219) (1997).
Here, Chism argued in the trial court that his trial counsel was ineffective for
allowing him to enter a non-negotiated plea despite his mental illness and limitations,
for failing to request a mental competency hearing, for failing to present evidence
about Chism’s history of mental evaluations, for misrepresenting Chism’s juvenile
offender information during the plea hearing, for failing to present evidence of
Chism’s mental health status as a mitigating factor in sentencing, for failing to request
a plea of guilty but mentally ill, and other claims related to the blind plea. “These
issues cannot be resolved by reference to the facts contained in the record, and
instead, can be developed only in the context of a post-plea hearing. Therefore, a
motion for an out-of-time appeal is not available to [Chism] on these issues, and
instead, he must pursue counsel’s alleged ineffectiveness in an action for habeas
corpus.” Wetherington v. State, 296 Ga. 451, 455 (769 SE2d 53) (2015).
Judgment affirmed. Boggs and Rickman, JJ., concur.
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