In the Supreme Court of Georgia


                                             Decided: July 8, 2016


                   S16A0450. BROOKS v. THE STATE.

      HINES, Presiding Justice.

      Anthony Brooks appeals from the denial of his motions for an out-of-time

appeal, and for an evidentiary hearing. For the reasons that follow, we affirm.

      In 1991, Anthony Brooks was charged with felony murder and attempted

armed robbery. At a plea hearing on January 17, 1992, Brooks, represented by

two attorneys, pled guilty to both charges. Brooks was sentenced to life in

prison for felony murder and a concurrent probated sentence of ten years for

attempted armed robbery. On January 20, 2015, Brooks filed a motion for an

out-of-time appeal from his guilty pleas and also moved for an evidentiary

hearing thereon. The trial court denied both motions.

      As this Court has previously stated,

      [t]he purpose of an out-of-time appeal is to address constitutional
      concerns that arise when a criminal defendant is denied a first
      appeal of right because the counsel to whom he was entitled to have
      assist him in that appeal was professionally deficient in failing to
      advise him to file a timely appeal, and that this deficiency caused
      him prejudice; therefore, an out-of-time appeal is appropriate when
      a direct appeal was not taken due to the ineffective assistance of
     counsel. Stephens v. State, 291 Ga. 837, 838 (1) (733 SE2d 266)
     (2012). However, that is not the end of the analysis because in
     order to have an out-of-time appeal on the basis of ineffective
     assistance of counsel, the defendant must have had the right to file
     a direct appeal, and a direct appeal from a judgment of conviction
     and sentence entered following a guilty plea is available to the
     defendant only if the issue on appeal is capable of resolution by
     reference to facts on the record. Id. Consequently, a determinative
     factor in the availability of an out-of-time appeal when the
     defendant has pled guilty is whether the appeal can be decided
     based upon the existing record; any question of the effectiveness of
     counsel is not reached unless it can be resolved by reference to facts
     on the record. Id.

Coulter v. State, 295 Ga. 699, 700 (1) (763 SE2d 713) (2014).

     Accordingly, the preliminary question raised by Brooks’s appeal is

     whether the issues that [he] seeks to appeal can be resolved on the
     existing record because, if not, he would have had no right to file
     even a timely appeal, and therefore, would not be entitled to an
     out-of-time appeal. Id. If, indeed, his claims require expansion of
     the record, he would have to pursue them by way of a petition for
     writ of habeas corpus. Id. But, if in his motion for an out-of-time
     appeal, [Brooks] has raised an issue that can be determined on the
     existing record, concerns regarding the effectiveness of his counsel
     are reached, and he must show that his counsel was ineffective in
     not filing a timely appeal under the test set forth in Strickland v.
     Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
     Such test places the burden on a defendant to show both that his
     trial counsel provided deficient performance, and that but for such
     deficiency, there is a reasonable probability that the outcome of the
     proceeding would have been different, which in the present context
     means that an appeal would have been successful. Stephens v. State,
     supra at 838-839 (1). This Court need not address both parts of the
     Strickland test if the defendant makes an insufficient showing on
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      one; in fact, the Court need not determine whether counsel's
      performance was deficient before examining any prejudice suffered
      by the defendant as a result of the alleged deficiencies. Stephens v.
      State, supra at 839 (1). Consequently, if the claims that the
      defendant seeks to raise in an out-of-time appeal can be resolved
      against him on the face of the record, so that even a timely appeal
      would not have been successful, then the failure of plea counsel to
      advise the defendant to file such an appeal cannot be found
      professionally deficient, nor can any prejudice result. Id. Thus, in
      such circumstances, the trial court may deny the defendant’s motion
      for an out-of-time appeal without an evidentiary hearing. Id.

Id. at 700-701 (1).

      1. Brooks contends that his guilty plea to the crime of felony murder

while in the commission of aggravated assault was not knowingly and

voluntarily entered because the indictment was defective in that it did not

specify that he intended to commit aggravated assault, or specify how the

aggravated assault was committed. However, the indictment was not fatally

flawed; it alleged that Brooks committed felony murder in that he did, “while

in the commission of a felony, to-wit: aggravated assault, cause the death of a

human being, to wit: Albert Lee Stovall.” Thus, the

      indictment charged appellant with felony murder-having caused the
      death of the victim while committing the felony of aggravated
      assault. See OCGA § 16-5-1(c). Aggravated assault is a felony.
      OCGA § 16-5-21. The indictment is sufficient to withstand a
      general demurrer because appellant cannot admit he caused the
      death of the victim while in the commission of aggravated assault
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       and not be guilty of the crime.

Stinson v. State, 279 Ga. 177, 179 (2) (611 SE2d 52) (2005). As to Brooks’s

contention that

       the felony murder indictment was deficient because it did not
       contain all the essential elements of the underlying crime of
       aggravated assault[, this] is, in essence, a special demurrer seeking
       greater specificity with regard to the predicate felony. We agree
       with the State that appellant's failure to file his special demurrer
       seeking additional information before pleading [. . .] guilty to the
       indictment constitutes a waiver of his right to be tried on a perfect
       indictment. [Cits.]

Id. at 180. (Footnote omitted.)1

       2. Additionally, Brooks contends that he received ineffective



assistance from his plea counsel in that counsel failed to inform him that he had

a right to appeal from a guilty plea on a defective indictment. However, as

noted in Division 1, supra, the indictment did not fail to allege a crime. Thus,

this contention of ineffective assistance of plea counsel can be resolved

adversely to Brooks by examining the existing record, and the trial court did not


       1
         To the extent that Brooks’s claim is that his guilty plea was not supported by a sufficient
factual basis, the transcript of the plea hearing shows that the facts recited by the prosecutor were
sufficient to support Brooks’s convictions for both attempted armed robbery and felony murder while
in the commission of aggravated assault. See Roberts v. State, 298 Ga. 331, 331-332 (1) (782 SE2d
1) (2016).

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err in denying his motion for an out-of-time appeal on this ground. Marion v.

State, 287 Ga. 134, 135 (2) (695 SE2d 199) (2010).

      3. Brooks also contends that his pleas were not freely and knowingly

made in that he was not fully advised of his rights under Boykin v. Alabama, 395

U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969), in particular the right not to

incriminate himself and the right to confront his accusers. These claims can also

be decided upon the record, which belies Brooks’s contentions. At his 1992

plea hearing, Brooks testified that his attorneys had reviewed the plea form with

him, explained the questions that appeared on it to him, that he did, in fact, sign

the plea form indicating that he understood his rights, and that he initialed the

form as to each right enumerated thereon.

      The plea form shows not only Brooks’s signature at the end of the form

affirming that he read and understood the rights enumerated on the form, and

waived those rights, but also that he initialed the blank marked for a “yes”

response as to each of the following specific questions: “Do you understand that

you don’t have to say, sign, or do anything that will tend to show you are guilty

of the offense charged unless you want to?”; “Do you understand that you have

the right to make the State bring in witnesses to testify against you under oath


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at a trial, and that you and your lawyer have the right to question and cross-

examine them under oath?”; and, “Do you understand that the court can make

the witnesses you want come into court and testify for you in your defense?”

The form also bears the certifications of Brooks’s plea counsel that they

reviewed the questions on the form with Brooks, and that counsel had assured

themselves that Brooks understood the rights he was waiving. The questions on

the form adequately advised Brooks regarding his privilege against self-

incrimination and the right to confrontation that he was waiving. See Mims v.

State, ___ Ga. ___, ___ (n. 5 & 6) (___ SE2d ___) (2016) (Case No. S16A0542,

decided June 6, 2016); Coulter v. State, 295 Ga. 699, 702 (n. 3) (763 SE2d 713)

(2014); Brown v. State, 290 Ga. 50, 52 (2) (718 SE2d 1) (2011). Accordingly,

the record reveals that there is no merit to Brooks’s claims that he was not fully

advised of the Boykin rights he was waiving.

      Thus, it was not error to deny Brooks’s motion for an out-of time appeal,

and to do so without conducting an evidentiary hearing. Coulter, supra at 700-

701 (1).

      Judgment affirmed. All the Justices concur.




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