In the Supreme Court of Georgia



                                           Decided: February 22, 2016


                   S16A0107. HUDSON v. THE STATE.


      MELTON, Justice.

      The record shows that, on May 1, 1995, a Clarke County grand jury

indicted Christopher Hudson for malice murder, felony murder, and armed

robbery. As evidenced by Hudson’s videotaped admission and surveillance

footage, on March 11, 1994, Hudson murdered John Thomas Swartz by

repeatedly stabbing him with a screwdriver. At the time, Hudson was

committing an armed robbery of the Big A Bottle Shop in Athens, Georgia. On

May 1, 1995, after fully confessing to the crimes, Hudson entered a guilty plea

to malice murder and armed robbery. The count of felony murder was nolle

prossed, and the State agreed not to seek the death penalty. Hudson was

sentenced to life without parole for malice murder and a concurrent term of life

imprisonment for armed robbery. On May 4, 2015, Hudson filed an untimely

motion to withdraw his guilty plea and moved for an out-of-time appeal, which
was denied on May 20, 2015. Hudson now appeals this ruling. We affirm.

      1. Hudson contends that his sentence for malice murder was void because

the trial court sentenced him to life without parole in the absence of a finding of

aggravating circumstances. This contention is false.

      At the time of Hudson’s crimes, OCGA § 17-10-32.1 (b)1 provided that,

in cases where the State filed notice that it intended to seek the death penalty,

the trial court “may sentence the defendant to death or life without parole only

if the judge finds beyond a reasonable doubt the existence of at least one

statutory aggravating circumstance as provided in Code Section 17-10-30.” The

finding of the existence of an aggravating circumstance was required to be made

contemporaneously with sentencing. Hughes v. State, 269 Ga. 819 (2) (504

SE2d 696) (1998). The version of OCGA § 17-10-30 (b) (1) applicable at the

time of sentencing expressly included armed robbery as a statutory aggravating

circumstance.2 A review of the guilty plea transcript shows that the trial court,

at the time of sentencing, explicitly stated: “I find beyond a reasonable doubt the


      1
          Effective April 29, 2009, this statute has been repealed.
      2
       Armed robbery remains an aggravating circumstance under the
current version of the statute.
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existence of the aggravated circumstance, that being the murder took place while

[Hudson was] engaged in the commission of the offense of armed robbery.”

Therefore, Hudson’s current argument is factually incorrect and meritless.

      2. Hudson argues that his guilty plea was neither knowing nor voluntary

because he was not informed of his right against self-incrimination pursuant to

Boykin v. Alabama, 395 U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969). The

transcript of the guilty plea hearing, however, again shows that Hudson’s

contention is false. In addition to stating that he understood and waived all of

his other constitutional and statutory rights, Hudson stated that he understood

that he could not be required to testify and that, if he did not, that decision could

not be used as evidence against him. Therefore, Hudson’s contention fails.

      3. Finally, Hudson maintains that, at his plea hearing, he was not informed

that he had a right to appeal his conviction and that, to the contrary, he was led

to believe that he could not appeal. Hudson argues that, for this reason, the trial

court must grant him an out-of-time appeal. Hudson is incorrect.

      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

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      prejudice.

(Citations omitted.) Stephens v. State, 291 Ga. 837, 837–838 (2) (733 SE2d

266) (2012). In this case, Hudson has not raised any contention of ineffective

assistance at all, and, as such, he has stated no grounds to support his contention

that he was entitled to an out-of-time appeal.

      Furthermore, even if Hudson’s contention could be construed as a claim

that his attorney rendered ineffective assistance by failing to fully inform him

of his right to appeal, that claim ultimately would not entitle Hudson to an out-

of-time appeal.

      When a conviction is entered based on a plea of guilty, a direct
      appeal is available only if the issue on appeal can be resolved by
      reference to facts on the record. Thus, if the 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. If the issues a defendant wishes 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 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.

(Citations, punctuation, and emphasis omitted.) Rhodes v. State, 296 Ga. 418,

420 (2) (768 SE2d 445) (2015). As set forth in the two prior divisions, the issues

Hudson wishes to raise in an out-of-time appeal can be resolved against him on

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the face of the record, and even a timely appeal would have been unsuccessful.

      Therefore, for all of the reasons set forth above, the trial court did not err

by denying Hudson’s motion for an out-of-time appeal.

      Judgment affirmed. All the Justices concur.




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