In the Supreme Court of Georgia



                                           Decided: February 2, 2015


           S14A1525. MICHAEL WETHERINGTON v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Michael Wetherington appeals the trial court’s denial of his

motion for an out-of-time appeal from his convictions based on a guilty plea in

Lowndes County. Because Appellant has not shown that he had a right to file

even a timely direct appeal, we affirm the trial court’s denial of Appellant’s

motion for an out-of-time appeal.

      This Court recently addressed another one of Appellant’s motions for an

out-of-time appeal in Wetherington v. State, 295 Ga. 172 (758 SE2d 299)

(2014). In that opinion, we set forth the background of Appellant’s case as

follows:

      On July 27, 1986, Wetherington[, who had retained counsel,] pled
      guilty to malice murder, attempted armed robbery, and attempted
      kidnapping; he was sentenced to serve life in prison for the murder
      and consecutive ten-year sentences for the two other convictions.

             Wetherington did not file a timely direct appeal. However,
      over the ensuing two decades, acting pro se, he has filed an
      unsuccessful habeas corpus petition, two unsuccessful motions to
      vacate his sentence, and five motions for an out-of-time direct
      appeal. He filed his first motion for an out-of-time appeal in
      December 2008. After that motion was denied by the trial court,
      Wetherington filed a timely notice of appeal on January 20, 2009.
      For reasons not explained in the record, however, the Lowndes
      County Clerk’s office did not transmit the notice of appeal and the
      record to this Court as directed, even after Wetherington wrote to
      the clerk’s office in November 2009 to advise that this Court had
      not received the record and again requested that the clerk forward
      it. There is also no indication in the record that the appeal was ever
      withdrawn or dismissed.

             In August 2010, Wetherington filed a second motion for an
      out-of-time appeal, which was denied in November 2010; he again
      filed a timely notice of appeal, but the clerk’s office again failed to
      transmit it and the record to this Court. Wetherington filed two
      more motions for an out-of-time appeal, in September 2012 and
      March 2013, which apparently have not been ruled on by the trial
      court. On June 24, 2013, he filed his fifth motion for an out-of-time
      appeal, which was denied by the trial court in an order entered on
      September 18, 2013.

Id. at 172-173. Wetherington appealed the denial of his fifth motion for an out-

of-time appeal, and this Court reversed the trial court’s denial of his motion.1

Id. at 173.

      1
       This Court found that Appellant’s first motion for an out-of-time appeal,
which was never docketed in this Court but remained pending, acted as a supersedeas
and deprived the trial court of the power to issue judgment on his fifth motion for an
out-of-time appeal. Id. at 173.


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      After the Court issued its opinion, the Lowndes County Clerk’s office

transmitted Appellant’s notice of appeal from January 20, 2009, in which

Appellant appeals the denial of his first motion for an out-of-time appeal. It is

this appeal that is now before the Court.

      1. Out-of-time appeals are designed to address the constitutional
      concerns that arise when a criminal defendant is denied his first
      appeal of right because the counsel to which he was constitutionally
      entitled to assist him in that appeal was professionally deficient in
      not advising him to file a timely appeal and that deficiency caused
      prejudice. Thus, [a]n out-of-time appeal is appropriate when a
      direct appeal was not taken due to ineffective assistance of counsel.

Stephens v. State, 291 Ga. 837, 837-838 (1) (733 SE2d 266) (2012)

(punctuation and citations omitted).

      In order to bring an out-of-time appeal on the grounds that trial counsel

was ineffective, Appellant must necessarily have had the right to file a direct

appeal. Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219) (1997). Although

a “criminal defendant has the absolute right to file a timely direct appeal from

a judgment of conviction and sentence entered after a jury or bench trial[,] . . .

. [a] criminal defendant has no unqualified right to file a direct appeal from a

judgment of conviction and sentence entered on a guilty plea.” Smith v. State,

266 Ga. 687, 687 (470 SE2d 436) (1996).

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      A direct appeal from a judgment of conviction and sentence entered
      on a guilty plea is only available if the issue on appeal can be
      resolved by reference to facts on the record. The ability to decide
      the appeal based on the existing record thus becomes the deciding
      factor in determining the availability of an out-of-time appeal when
      the defendant has pled guilty. Issues regarding the effectiveness of
      counsel are not reached unless the requirement that the appeal be
      resolved by reference to facts on the record is met.

Grantham, 267 Ga. at 635 (citation omitted).

      Appellant must establish a good and sufficient reason which entitles him

to an out-of-time appeal. Smith, 266 Ga. at 687. To meet this burden, Appellant

is required to “set forth the questions he would raise should the appeal be

granted” and show that these questions could be answered by facts in the record.

Wheeler v. State, 269 Ga. 547, 547 (499 SE2d 629) (1998). He cannot merely

allege that he was not informed of his right to appeal. See Barnes v. State, 274

Ga. 783, 783 (559 SE2d 446) (2002); Smith, 266 Ga. at 688.

      If the appellate questions Appellant proposes could not be resolved

exclusively on the basis of the existing record, then Appellant would have had

no right to file a timely direct appeal and therefore no right to an out-of-time

appeal. Stephens, 291 Ga. at 838. Instead, Appellant must pursue any claims

that require an expansion of the record in a habeas corpus petition. Id. If the


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appellate questions Appellant proposes could be resolved by using the existing

record, but these questions can be resolved against him, then Appellant had no

right to file a timely notice of direct appeal and therefore no right to an out-of-

time appeal. Brown v. State, 280 Ga. 658 (2) (631 SE2d 687) (2006); Barnes,

274 Ga. at 783.

      On the other hand, if the appellate questions raised by Appellant can be

resolved in his favor by using the existing record, then Appellant must show that

his counsel was ineffective in not filing a timely direct appeal. Stephens, 291

Ga. at 838. To demonstrate ineffectiveness, Appellant must show that his trial

counsel provided deficient performance and that, but for such unprofessional

performance, there is a reasonable probability that the outcome of the

proceeding would have been different. Id. at 838-839; see also Strickland v.

Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LEd2d 674) (1984).

      Finally, once a defendant has pled guilty to the offenses charged, an out-

of-time appeal is not available to raise independent claims alleging the

deprivation of constitutional rights, which occurred prior to the entry of a guilty

plea. Moore v. State, 285 Ga. 855, 858 (2) (684 SE2d 605) (2009); Addison v.

State, 239 Ga. 622, 624, (238 SE2d 411) (1977); Harwood v. State, 303 Ga.

                                        5
App. 23 (692 SE2d 665) (2010).

      With a few limited exceptions . . ., a plea of guilty generally waives
      all defenses except that based on the knowing and voluntary nature
      of the plea. An exception will only be made if the error goes to the
      very power of the State to bring the defendant into court.

Moore, 285 Ga. at 858 (punctuation and citations omitted).

      2. Appellant asserts that while the trial judge informed him of his direct

appeal rights, the judge also assumed that his retained trial counsel would

represent him on appeal and never informed Appellant that counsel could be

appointed to represent him on direct appeal. He contends that his trial counsel

never corrected the trial judge’s assumption about retained counsel continuing

to represent him on appeal.2 Additionally, he asserts that counsel never

informed him, or asked the trial judge to inform him, that he had a right to the

appointment of counsel on direct appeal.

      Appellant has set forth the questions he would raise should this Court

grant him an appeal. First, he alleges that the affidavits submitted in support of

the arrest warrants for him were insufficient to provide probable cause for arrest,


      2
        Appellant alleges that his retained counsel explained to him that in light of his
guilty plea, he had received the best sentence he could get and there was nothing to
appeal.

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contained only conclusions, and were not based on the personal knowledge of

the affiant. He argues that as a result the magistrate judge had no basis to issue

arrest warrants for him, the trial court had no basis on which to accept his guilty

plea or adjudicate this case, and his sentences are void.

      This proposed appellate issue is not a proper subject for a motion for an

out-of-time appeal because, when Appellant entered his guilty plea voluntarily,

he waived any challenge to the validity of the arrest warrants and no exception

to this waiver applies here. See Moore, 285 Ga. at 858; see also Gibson v. State,

290 Ga. 516 (2) (a) (722 SE2d 741) (2012). Appellant makes no allegation that

his guilty plea was not entered knowingly and voluntarily. Indeed, the record

indicates that Appellant understood the nature of the charges against him and the

consequences of his guilty plea and that the plea was not induced by coercion

and was voluntarily entered. See Moore, 285 Ga. at 858; see also Gibson, 290

Ga. at 517.

      Appellant’s next proposed appellate issue is that his retained trial counsel

was ineffective for failing to fully investigate his case and discover that the

arrest warrants were invalid. These issues cannot be resolved by reference to the

facts contained in the record, and instead, can be developed only in the context

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of a post-plea hearing. Therefore, a motion for an out-of-time appeal is not

available to Appellant on these issues, and instead, he must pursue counsel’s

alleged ineffectiveness in an action for habeas corpus. See Moore, 285 Ga. at

858 (rejecting the appellant’s claim that his trial counsel was ineffective based

on a failure to properly investigate the validity of an arrest warrant because the

issue could not be resolved by reference to the facts in the record); Grantham,

267 Ga. at 636.

      Since Appellant’s proposed appellate questions are not the proper subject

for a motion for an out-of-time appeal or cannot be resolved by reference to

facts in the record, he had no right to pursue even a timely notice of appeal from

the judgment of conviction entered on his guilty plea. See, e.g., Gibson, 290 Ga.

at 517; Moore, 285 Ga. at 858. It follows that he was not entitled to be informed

of a non-existent “right” to appeal or be appointed counsel for that appeal. See

Johnson v. State, 275 Ga. 390 (565 SE2d 805) (2002) (where the appellant

alleged that trial counsel was ineffective for failing to inform him of his right to

appeal and the court failed to inform him of his right to appeal and to the

appointment of counsel, affirming denial of motion for an out-of-time appeal

because the appellate issues proposed could not be resolved by the record and

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therefore the appellant was not entitled to be informed of a non-existent right to

appeal); Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995) (the appellant

was not entitled to be informed of a non-existent “right” to appeal because he

had no right to file even a timely notice of appeal since the issue he sought to

raise in his motion for an out-of-time appeal could not be resolved only by

reference to facts in the record).

      Accordingly, the trial court did not err in denying Appellant’s motion for

an out-of-time appeal.

      Judgment affirmed. All the Justices concur, except Hines, P.J., Nahmias

and Blackwell, JJ., who concur in judgment only.




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