Barker v. the State

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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 8, 2017
In the Court of Appeals of Georgia
A17A1280. BARKER v. THE STATE.
BARNES, Presiding Judge.
James Barker appeals pro se from the denial of his motion for an out-of-time
appeal. He contends that the arrest warrant and affidavit were insufficient to establish
probable cause, that the indictment was fatally defective, that he was unaware of his
Boykin right against self-incrimination, and that plea counsel was ineffective.
Following our review, we affirm.
After being indicted on charges for aggravated child molestation, Barker
entered a negotiated guilty plea to child molestation on August 14, 2014. He was
sentenced to twenty years to serve five. On January 31, 2017, Barker filed a motion
for an out-of-time appeal in which he asserted, among other things, that his arrest
warrant and indictment were invalid, that plea counsel was ineffective, and that his
sentence was vague and ambiguous. The trial court denied Barker’s motion, and it is
from that order that he appeals.
In order to receive an out-of-time appeal from a judgment entered on a
guilty plea, [Barker] must show (1) that the claims he seeks to raise on
appeal can be resolved on the existing record; and (2) that the failure to
pursue a timely appeal was due to the ineffective assistance of his plea
counsel. But if the claims [Barker] seeks to raise can be resolved against
him on the face of the record, so that even a timely appeal would not
have been successful, then plea counsel cannot be said to have rendered
ineffective assistance in failing to advise the appellant or otherwise
assist him in pursuing an appeal. Accordingly, in reviewing [Barker’s]
claims, we first assess whether they may be resolved on the record
before us. For those that cannot, no relief is available; for those that can
be resolved on the record but only against [Barker], relief is also
unavailable; and for any claims that remain, we must proceed to
consider whether plea counsel rendered ineffective assistance in failing
to pursue such claims.
(Citations and punctuation omitted.) Waye v. State, S17A0310, 2017 Ga. LEXIS 530,
at *1-2 (June 19, 2017). “The denial of a motion for out-of-time appeal is a matter
within the discretion of the trial court,” and the “decision to deny such a motion will
not be overturned absent an abuse of discretion.”(Citation omitted.) Brown v. State,
290 Ga. 321, 321 (1) (720 SE2d 617) (2012).
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1. Barker first contends that the arrest warrant and attached affidavits were
insufficient to establish probable cause because certain information was omitted,
including the source of the officer’s information.
[A] plea of guilty generally waives all defenses except that based on the
knowing and voluntary nature of the plea, [and] [a]n exception will only
be made if the error goes to the very power of the State to bring the
defendant into court. No such situation is presented here. It follows that
[Barker] was not entitled to challenge the validity of the arrest warrant
by way of an out-of-time appeal.
(Citations and punctuation omitted.) Moore v. State, 285 Ga. 855, 858 (2) (684 SE2d
605) (2009).
2. Barker next contends that his indictment was fatally defective in that it
alleged that the crime occurred between May 1, 2013 and August 30, 2013, and thus
failed to track the language of OCGA § 17-7-54, which provides, in pertinent part,
that an indictment must state with “sufficient certainty” the date of the alleged
offense.1 However, if the State can show that the evidence does not permit it to allege
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The indictment charged Barker with “the offense of AGGRAVATED CHILD
MOLESTATION for that said accused in the County of Tift, between the 1st day of
May, 2013, and the 30th day of August, 2013, the exact date of the offense being
unknown to the Grand Jury.”
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a specific date on which the offense occurred, the State is permitted to allege that the
crime occurred between two particular dates. O’Rourke v. State, 327 Ga. App. 628,
631-632 (2) (760 SE2d 636) (2014).
The true test of the sufficiency of the indictment is . . . whether it
contains the elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be prepared to meet,
and, in case any other proceedings are taken against him for a similar
offense, whether the record shows with accuracy to what extent he may
plead a former acquittal or conviction.
(Citations and punctuation omitted.) Jordan v. State, 220 Ga. App. 627, 629 (2) (470
SE2d 242) (1996).
We first note that Barker did not challenge the indictment, and “[g]iven that
[Barker] pled guilty to the crime charged, his only possible challenge to the
indictment would be the sufficiency thereof.” Golden v. State, 299 Ga. App. 407, 411
(3) (683 SE2d 618) (2009).
In the order denying his motion for an out-of-time appeal, the trial court found
that “[s]ubstantive defects did not exist in the indictment,” and at the plea hearing the
State presented as a factual basis for the charges that the time period at which the acts
occurred was during the time that Barker lived with the family of the victim, which
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put Barker on notice with “sufficient certainty” of the date of the offense. See OCGA
§ 17-7-54 (a). Accordingly, Barker’s claim that the indictment was invalid is without
merit, and the trial court did not err in so finding and denying his motion for an out-
of-time appeal on that basis.
Moreover, to the extent that Barker argues that he was not present in the county
during that time period, a motion for an out-of-time is not appropriate for developing
claims of error that cannot be resolved by facts appearing in the record. See Golden
v. State, supra, 299 Ga. App. at 411 (3).
3. In his third and fourth enumerations, Barker contends that he was not
advised of his Boykin right against self incrimination at the plea hearing, and that plea
counsel was ineffective for failing to inform him of that right. Boykin v. Alabama, 395
U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969), held that when a defendant pleads
guilty, he must be adequately advised of his rights (1) against self-incrimination, (2)
to trial by jury, and (3) to confront his accusers. Id. at 395 U.S. at 243.
The State bears the burden of showing that the plea was entered into knowingly
and voluntarily. Phelps v. State, 293 Ga. 873, 875-876 (2) (750 SE2d 340) (2013).
“The State may meet this burden by showing on the record of the guilty plea hearing
that the defendant was cognizant of all of the rights he was waiving and the possible
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consequences of his plea, or by use of extrinsic evidence that affirmatively shows that
the guilty plea was knowing and voluntary.” (Citation and punctuation omitted.) Id.Thus, we consider the record as a whole to determine if the defendant voluntarily
entered his plea. Cooper v. State, 281 Ga. 63, 65 (2) (636 SE2d 493) (2006).
Contrary to Barker’s contention, the record shows that, at the plea hearing, and
upon ascertaining a factual basis for the plea, the trial court first advised Barker of his
Boykin rights, including against self-incrimination, specifically advising Barker that
“you have the right not to incriminate yourself in any way,”and confirmed that Barker
understood the rights. The trial court then confirmed that Barker’s plea was not the
result of “undue influence, compulsion, [or] duress,” and that he was pleading guilty
freely and voluntarily, and was doing so after being “fully advised of his right to a
trial by jury and all the rights attendant thereto.” . See Williams v. State, 334 Ga. App.
311, 313-314 (779 SE2d 91) (2015) (in a state-court proceeding, all that the record
must show is an inquiry into the voluntariness of the plea, advice to the defendant as
to the rights he is giving up, and an inquiry into the factual basis for the plea).
Accordingly, this contention fails.
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4. We also find no merit to Barker’s contention that plea counsel was
ineffective for failing to challenge the indictment and for failing to advise him of his
right against self-incrimination.
In this case, as shown in Divisions 2 and 3, Barker’s contentions of ineffective
assistance of plea counsel can be resolved adversely to him by the existing record,
and the trial court did not err in denying his motion for an out-of-time appeal on these
grounds. Waye v. State, 2017 Ga. LEXIS 530, at *1-2. See also Marion v. State, 287
Ga. 134, 135 (2) (695 SE2d 199) (2010).
Judgment affirmed. McMillian and Mercier, JJ., concur.
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