Lewis v. State

748 S.E.2d 414, 293 Ga. 544, 2013 Fulton County D. Rep. 2811, 2013 WL 4779548, 2013 Ga. LEXIS 648
Supreme Court of Georgia·Decided September 9, 2013·No. S13A0920·Published·Cited by 14 cases

Opinion

HINES, Presiding Justice.

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.1 On September 19,1997, Lewis pled guilty to only one count of felony murder and was sentenced to life in prison; as part of the plea negotiations, an order of nolle prosequi was entered as to the remaining counts against him.

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.2

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.3 He further complains that the trial court “failed to reserve the transcript recording of the [545] guilty plea hearing,” which he maintains is fatal to upholding the validity of his plea. But, Lewis’s complaints are unavailing.

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.4 However, the absence of a transcript of Lewis’s plea hearing, in and of itself, does not preclude consideration and determination of the validity of the plea; other evidence of record may establish that the plea was entered into knowingly and voluntarily. See Moore v. State, 285 Ga. 855 (684 SE2d 605) (2009). And, so it does in this case. Contrary to Lewis’s assertion, the record is not silent; there is ample evidence to support the finding that Lewis understood the nature of the charges against him and the consequences of his guilty plea.

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Lewis v. State, 748 S.E.2d 414, 293 Ga. 544, 2013 Fulton County D. Rep. 2811, 2013 WL 4779548, 2013 Ga. LEXIS 648 (Ga. 2013).

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