FINAL COPY
294 Ga. 716

                     S14A0280. HAGAN v. THE STATE.

      NAHMIAS, Justice.

      Terry Hagan appeals from the trial court’s order denying his motion for an

out-of-time appeal. Because his claims are meritless or cannot be resolved based

on the existing record, we affirm.

      1.    On March 9, 2010, Appellant pled guilty in the Catoosa County

Superior Court to the malice murder of his wife and the attempted murder of her

lover. He was sentenced to serve life in prison with the possibility of parole for

the murder and 30 concurrent years for the attempted murder. Prior to the plea

hearing, with his plea counsel, Appellant reviewed and signed a guilty plea form,

which enumerated his rights under Boykin v. Alabama, 395 U. S. 238 (89 SCt

1709, 23 LE2d 274) (1969), and explained that, by pleading guilty, Appellant

would waive those rights and certain defenses. At the plea hearing, the court

orally informed Appellant of his Boykin rights, and Appellant again

acknowledged that he understood those rights and that, by pleading guilty, he

waived them. When asked how he wanted to plead, Appellant replied, “Guilty.”

The court accepted the guilty plea and entered judgment based on it.
      Fifteen months later, on June 13, 2011, Appellant filed a pro se motion to

withdraw his guilty plea. The trial court denied the motion, and on appeal, this

Court affirmed, holding that the motion was untimely. See Hagan v. State, 290

Ga. 353, 353 (720 SE2d 645) (2012). On March 13, 2013, Appellant filed a pro

se motion for an out-of-time appeal, claiming that he told his plea counsel to file

a direct appeal of his convictions but counsel failed to do so. Appellant amended

the motion on July 15, 2013, and filed a pro se “motion for compliance” pursuant

to OCGA § 15-6-21 on July 19, 2013. The trial court denied the amended motion

on September 10, 2013, and Appellant filed this timely appeal.               His 12

enumerations of error boil down to three basic claims: (1) his motion for out-of-

time appeal should have been granted pursuant to OCGA § 15-6-21; (2) his guilty

plea was not entered knowingly, freely, and voluntarily; and (3) his plea counsel

provided ineffective assistance by failing to file a timely direct appeal.

      2.    Appellant’s claim that OCGA § 15-6-21 required the trial court to

grant his motion for an out-of-time appeal is meritless. OCGA § 15-6-21 (a) says

that a trial judge in a county with less than 100,000 residents (like Catoosa

County) must rule on a motion within 30 days after the date the motion was

submitted, unless “providentially hindered” or unless counsel for both parties


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agree in writing to extend that deadline. However, if the judge fails or refuses to

rule within that period, the remedy is not to require the motion to be granted,

regardless of its merit. Instead, such conduct can be grounds for impeachment,

see OCGA § 15-6-21 (d), or the moving party may seek a writ of mandamus to

compel the judge to decide the motion. See Graham v. Cavender, 252 Ga. 123,

123 (311 SE2d 832) (1984). Thus, the remedy Appellant seeks is not authorized.

      3.    (a)    As this Court recently explained,



      [o]ut-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.



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

from a conviction entered on a guilty plea is available only if the issues raised on

appeal can be resolved by reference to the existing record. See id. Thus, if the


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issues that the defendant seeks to appeal cannot be resolved from the record, he

had no right to file a direct appeal, and therefore he has no right to file an out-of-

time appeal. See id. at 838.

      If the defendant raises issues that can be determined from the existing

record, he then must show that his counsel was ineffective in not filing a timely

appeal. See id. However,



if the claims that the defendant wants to raise in the out-of-time appeal can be

resolved against him on the face of the record, so that even a timely appeal would

have been unsuccessful, “then plea counsel’s failure to advise the defendant to file

such an appeal was not professionally deficient, nor did any prejudice result.”



Id. at 839 (citation omitted; emphasis added).

      (b)   Appellant’s claim that his guilty plea was not entered knowingly,

freely, and voluntarily cannot be resolved based on the existing record. The face

of the record indicates that the plea was valid: Appellant was informed of his

Boykin rights both on the guilty plea form that he signed and again orally during

the plea hearing; he acknowledged that he understood those rights and the fact


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that a guilty plea would waive them; he acknowledged that he understood the

charges against him; the prosecutor presented a detailed factual basis for the plea;

and Appellant then stated clearly his desire to plead guilty. Appellant now

alleges, however, that he was confused and coerced into pleading guilty by the

trial court’s reference to an Alford plea and by misinformation as to the sentences

he faced, including his parole eligibility; he also alleges that his mental condition,

which he suggests required a psychological evaluation, prevented him from

entering a valid guilty plea. These issues cannot be determined from the existing

record; they therefore could not have been properly raised in a direct appeal from

a guilty plea; and they therefore are not proper grounds for an out-of-time appeal.

See Stephens, 291 Ga. at 838-839; Stewart v. State, 268 Ga. 886, 886 (494 SE2d

665) (1998) (explaining that claims that a guilty plea was rendered involuntary

due in part to exchanges with plea counsel that would not be reflected in the

record of the plea do not warrant an out-of-time appeal).

      (c)   Finally, because Appellant raises no issue on appeal that could be

decided in his favor based on the existing record, his plea counsel was not

deficient and caused no prejudice by not filing a timely direct appeal. Thus,

Appellant’s ineffective assistance of counsel claim also fails. See Stephens, 291

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Ga. at 838-839.

      For these reasons, the trial court did not err in denying Appellant’s motion

for an out-of-time appeal. His remedy, if any, is in habeas corpus. See Stephens,

291 Ga. at 838.

            Judgment affirmed. All the Justices concur.



                             Decided March 3, 2014.

      Murder. Catoosa Superior Court. Before Judge Van Pelt.

      Terry Hagan, pro se.

      Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant

District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for

appellee.




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