Caine v. State

467 S.E.2d 570, 266 Ga. 421, 96 Fulton County D. Rep. 1034, 1996 Ga. LEXIS 125

• Court: Supreme Court of Georgia
• Decided: March 15, 1996
• Docket: S95A1912
• Status: Published

Opinions

Carley, Justice.

Isaac Caine entered a guilty plea to a charge of murder. In this case, he appeals directly from the judgment of conviction and sentence entered on his guilty plea. He contends that his guilty plea was not freely and voluntarily entered and that the actions of trial counsel denied him his constitutional right to effective assistance of counsel.

In response to a certified question from the Court of Appeals, this Court clearly held in Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984), that a timely filed direct appeal from a judgment entered on a guilty plea is a prescribed means by which a defendant may challenge a guilty plea “[w]here the question on appeal is one which may be resolved by facts appearing in the record, as in Fuller v. State, [159 Ga. App. 512 (284 SE2d 29) (1981)] . . . .” Thus, the merits of Caine’s appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.

This limitation on the right to file a direct appeal has been followed consistently and, indeed, as recently as Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). In Morrow, the trial court denied the defendant’s motion for out-of-time appeal from the judgment of conviction and sentence entered on his guilty plea to murder. In that out-of-time appeal, the defendant sought to raise an issue which could be resolved only by reference to facts outside the record. Thus, noting that the defendant had no right to file even a timely notice of appeal and citing Smith, this Court affirmed the trial court’s denial of the motion for out-of-time appeal, since a direct “appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. [Cit.]” (Emphasis supplied.) Morrow v. State, supra at 3.

This well-settled rule of appellate jurisdiction is entirely compatible with the equally established principle that a claim of ineffectiveness of trial counsel should be asserted and resolved at the earliest practicable moment. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996); Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1) (1988). If the issue on direct appeal from a judgment entered on a guilty plea cannot be resolved by facts appearing in the record, then permitting the appeal would not generally promote the quick resolution of the issue. To the contrary, such an appeal would ordinarily have to be remanded for an evidentiary hearing. The more efficient procedure would be for the defendant to raise the issue first in the trial court by a motion to withdraw the guilty plea. After the evidentiary hearing on that motion, the defendant could then appeal from a denial of the motion. At that point, the appellate court could resolve the issue on the basis of the existing record without the need for a remand. Furthermore, a delay in filing a motion to withdraw the guilty plea beyond the term of court in which the guilty plea was accepted would have the same effect on the timely resolution of the issue as would a delay in filing a direct appeal beyond the expiration of the appeal period. In either instance, the defendant would be relegated to the remedy of habeas corpus. Morrow v. State, supra at 4; Jarrett v. State, 217 Ga. App. 627, 629 (1) (458 SE2d 414) (1995).

In this case, Caine makes no contention that, in accepting the guilty plea, the trial court erroneously failed to follow the established procedure. Compare Fuller v. State, supra. Rather, the contention is that his plea was not voluntary and that his counsel was ineffective. See Morrow v. State, supra at 3-4. Thus, the existing record, including the transcript of the guilty plea hearing, is immaterial to Caine’s appeal. The issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing. As indicated above, Caine could have filed a motion to withdraw his guilty plea and then his claims would have been fully aired in a timely manner at the hearing on the motion. If Caine had done so and the trial court had denied the motion, then he could have appealed from that denial. However, in this case there was no such motion or hearing and, thus, no appeal from an order denying the motion. The issues which Caine raises cannot be resolved only by facts appearing in the existing record. Accordingly, he was not entitled to file a notice of direct appeal and his appeal must, therefore, be dismissed. Morrow v. State, supra.

Appeal dismissed.

All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J., who dissent.