Usman v. the State

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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/
January 7, 2015
In the Court of Appeals of Georgia
A14A1644. USMAN v. THE STATE.
MILLER, Judge.
Jordan Usman entered into a non-negotiated plea of guilty to two counts of
child molestation (OCGA § 16-6-4 (a) (1)). Usman appeals from his conviction,
contending that the trial court erred in failing to properly advise him of his right to
withdraw his plea. For the reasons that follow, we affirm.
A defendant has no unqualified right to file a direct appeal from
a judgment of conviction and sentence entered on a guilty plea, and thus,
the merits of [Usman’s] appeal can be addressed only if the issues he
seeks to raise can be resolved by facts appearing in the record, including
the transcript of the guilty plea hearing.
(Citation omitted.) Denova v. State, 268 Ga. App. 16 (601 SE2d 400) (2004).
Usman entered his guilty plea on November 5, 2012. The record shows, and
Usman concedes, that he entered a non-negotiated plea. The Superior Court of Glynn
County held a sentencing hearing on January 16, 2013, and the trial court’s judgment
was entered that same day. Two days later, the trial court called Usman to court to
inform him of his right to appeal his conviction and sentence, which it had failed to
do at the previous hearing. The trial court also informed Usman that he had the right
to an appellate attorney if he was indigent. The trial court, however, did not inform
Usman that he could move to withdraw his guilty plea. Usman was represented by
counsel at his plea and sentencing hearings, including at the hearing when the trial
court advised Usman of his right to appeal his conviction.
Usman filed a notice of appeal on February 12, 2013. Thereafter, on June 21,
2013, Usman filed a motion in superior court to withdraw his guilty plea, which the
trial court denied because Usman filed his motion outside the term of court.
On appeal, Usman contends that the trial court misled him that the appropriate
procedure for challenging his convictions was to file a direct appeal rather than a
motion to withdraw his guilty plea within the term of court, and he relied on this
advice to his detriment because his motion to withdraw was denied since it was filed
out of term. We disagree.
OCGA § 17-7-93 (b) provides, in relevant part, that, at any time
before judgment is pronounced, the accused person may withdraw the
plea of guilty and plead not guilty. A defendant does not have an
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absolute statutory right, under said Code section, to withdraw a guilty
plea, after the trial court’s oral announcement of the sentence.
(Citations and punctuation omitted.) Stevens v. State, 202 Ga. App. 473, 474 (3) (414
SE2d 702) (1992). Moreover, the trial court is only obligated to personally inform the
defendant of the right to withdraw his guilty plea before judgment is pronounced if
the trial court intends to reject a negotiated plea agreement. Storch v. State, 276 Ga.
App. 789, 791-792 (2) (625 SE2d 70) (2005).
In this case, Usman’s plea was non-negotiated, and as a result, the trial court
was not obligated to inform him of his right to withdraw the plea before sentencing.
James v. State, 326 Ga. App. 231, 232 (756 SE2d 312) (2014). Usman nevertheless
argues that the trial court affirmatively misled him into believing that he could raise
an ineffective assistance claim on appeal without first moving to withdraw his guilty
plea or developing the record to address the issue. See Lamb v. State, 282 Ga. App.
756, 758 (639 SE2d 641) (2006) (where a defendant has not filed a motion to
withdraw his guilty plea raising ineffective assistance as an issue, and the only
evidence in the record is the transcript of his guilty plea hearing, the defendant cannot
raise ineffective assistance of counsel on direct appeal of his conviction). There is no
merit to this argument because the trial court unambiguously advised Usman of his
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right to appeal his conviction, and it was not obligated to inform him that this right
was qualified in light of his guilty plea. See Barlow v. State, 282 Ga. 232, 233 (647
SE2d 46) (2007).
Likewise, there is no merit to Usman’s claim that the trial court advised him
that he had to affirmatively request post-conviction counsel. While the trial court
advised Usman that the court would appoint appellate counsel “upon appropriate
request to do so,” the trial court’s statement, in context, indicated that appellate
counsel would be appointed if Usman wished to appeal and showed that he was
indigent. See Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996)
(holding that the trial court must appoint counsel for indigent defendants who indicate
a desire to appeal). Since the record does not show that the trial court committed error
in advising Usman of his appellate rights, we affirm.
Judgment affirmed. Doyle, P. J., and Dillard, J., concur.
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