DocketNumber: S13A0920
Judges: Hines
Filed Date: 9/9/2013
Status: Precedential
Modified Date: 10/19/2024
Prisoner Viondi Lewis files this pro se appeal from the denial of his motion for an out-of-time appeal. For the reasons that follow, we affirm.
On April 24, 1997, a Cobb County grand jury returned an indictment charging Lewis and three others with having committed, on February 11, 1997, two counts of malice murder, two counts of felony murder, two counts of armed robbery, aggravated assault, three counts of false imprisonment, and three counts of possession of a firearm during the commission of a crime.
On September 24, 2004, Lewis filed a pro se motion for an out-of-time appeal, alleging that the trial court and his plea counsel failed to inform him of his appeal rights. On November 16, 2004, he filed a “motion to amendment out of time appeal” making additional claims about the record, the voluntariness of the plea, and the conduct of his plea counsel. Following a hearing, the superior court denied the motion on December 1, 2004. Lewis filed a notice of appeal on December 15, 2004, and the appeal was docketed in this Court in the April 2013 term.
Lewis contends that he should have been granted an out-of-time appeal because’his guilty plea was not entered into intelligently and voluntarily in that his constitutional rights were not explained to him as required by Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969), current Uniform Superior Court Rule 33.11 (“USCR 33.11”), and the uniform rules cited therein.
An appeal from a judgment entered on a guilty plea is authorized only if the issue on appeal can be resolved by facts appearing in the record, and the lower court’s refusal to grant an out-of-time appeal is reviewed by this Court for an abuse of discretion. Dennis v. State, 292 Ga. 303 (736 SE2d 428) (2013). It is proper to deny a request for out-of-time appeal if examination of the record reveals no merit to the claimed errors. Adams v. State, 285 Ga. 744 (1) (683 SE2d 586) (2009). In the situation in which a criminal defendant challenges the constitutionality of his guilty plea, the State has the burden to show that the plea was informed and voluntary, including that the defendant made an articulated waiver of the three Boykin rights, which are the right to trial by jury, the privilege against self-incrimination, and the right to confront one’s accusers. Britt v. Smith, 274 Ga. 611, 612 (556 SE2d 435) (2001).
The record in this case contains a 2006 affidavit of the court reporter at the guilty plea, which effectively states that preparing a transcript of Lewis’s guilty plea hearing is no longer viable.
The record contains a three-page plea questionnaire, executed on the same day as the plea, which was sworn to and signed by Lewis as well as his attorney, witnessed by a deputy court clerk and certified to and signed by the judge presiding at the plea. The form, which was completed by hand, reflected on its face the negotiated agreement that Lewis would plead to only the one felony murder count of the
The record plainly demonstrates that Lewis had a full understanding of what his plea represented and its consequences. Moore v. State, supra at 858 (1).
As to any complaint by Lewis about the trial court’s failure to follow the letter of the applicable Uniform Superior Court Rules, the salient inquiry is the same, that is, whether the record, as a whole, affirmatively shows that the plea in question was knowing and voluntary. Britt v. Smith, supra at 614. And, the record shows that the guilty plea substantially complied with the applicable uniform rules. Smith v. State, 270 Ga. 68, 69 (2) (508 SE2d 145) (1998). Indeed, a defendant need not be expressly advised of each and every right set forth in USCR 33.8.
Inasmuch as Lewis’s attacks on the validity of his plea are all resolved adversely to him by consideration of the record, it was not error to deny his motion for an out-of-time appeal. Adams, supra, 285 Ga. at 748-749 (4) (b).
2. Finally, Lewis was not entitled to an out-of-time appeal on his claims of the misconduct and ineffective assistance of plea counsel because they cannot be resolved on the face of the record but would require the introduction of outside facts. Burns v. State, 291 Ga. 547 (1) (c) (731 SE2d 681) (2012).
Judgment affirmed.
A co-indictee was additionally indicted for possession of a firearm by a convicted felon.
The State opines that the substantial delay in the transmittal of the case to this Court is attributable to the unavailability of the guilty plea transcript.
USCR 33.11 provides:
A verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include:
(A) the inquiry into the voluntariness of the plea (as required in section 33.7);
(B) the advice to the defendant (as required in section 33.8);
(C) the inquiry into the accuracy of the plea (as required in section 33.9), and, if applicable;
(D) the notice to the defendant that the trial court intends to reject the plea agreement and the defendant’s right to withdraw the guilty plea before sentence is pronounced.
The affidavit states that in November or December 1997, the court reporter resigned her employment with the Cobb Superior Court to move out of state to care for her terminally ill sister; that she brought with her all equipment and materials necessary to transcribe any appeals or requested reported hearings during her employment with Cobb County; that the equipment and materials were properly stored and secured; that upon attempting to access the software containing Lewis’s plea hearing, she discovered that the disk was irretrievably damaged; that her back-up notes were stored by Cobb County when she ended her employment; that short of returning to Georgia and attempting to sort through the boxes of notes which might no longer be legible and years of testimony, there was no way to prepare a transcript of the plea hearing; and that she had done everything reasonably necessary to maintain the integrity of the testimony she had taken down during her employment with Cobb County, including in regard to Lewis’s plea hearing.
Lewis invokes current USCR 33.8, which provides:
The judge should not accept a plea of guilty or nolo contendere from a defendant without first:
(A) Determining on the record that the defendant understands the nature of the charge(s);
(B) Informing the defendant on the record that by entering a plea of guilty or nolo contendere one waives:
(1) the right to trial by jury;
(2) the presumption of innocence;
(3) the right to confront witnesses against oneself;
(4) the right to subpoena witnesses;
(5) the right to testify and to offer other evidence;
(6) the right to assistance of counsel during trial;
(7) the right not to incriminate oneself; and that by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial; and
(C) Informing the defendant on the record:
(1) of the terms of any negotiated plea;
(2) that a plea of guilty may have an impact on his or her immigration status if the defendant is not a citizen of the United States:
*548 (3) of the maximum possible sentence on the charge, including that possible from consecutive sentences and enhanced sentences where provided by law; and/or
(4) of the mandatory minimum sentence, if any, on the charge. This information may be developed by questions from the judge, the district attorney or the defense attorney or a combination of any of these.
Present USCR 33.9, which is essentially the same as the rule in effect at the time of Lewis’s plea provides:
Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.