297 Ga. 146
FINAL COPY



                   S15A0316. FREEMAN v. THE STATE.

      BENHAM, Justice.

      Appellant Anthony Lamar Freeman was convicted of felony murder and

other related crimes based upon a guilty plea entered in 1995. He now appeals

the trial court’s denial of his motion for leave to file an out-of-time appeal. For

the reasons set forth below, we affirm.

      The criminal charges against appellant included a charge of malice murder

and other crimes related to the rape and shooting death of Alicia Lynn

Yarbrough. At the time of the crimes, appellant was fifteen years of age. In

1995, at the age of sixteen, appellant entered a plea of guilty to felony murder,

armed robbery, and burglary, and he was sentenced to two life sentences to be

served concurrently, plus twenty years. The factual basis presented by the

prosecuting attorney at the plea hearing showed that appellant joined his co-

indictees, two men who were older than appellant, in traveling to Spalding

County for the purpose of killing Charles Puckett, who was then living with Ms.

Yarbrough. One of the co-indictees had dated Ms. Yarbrough in the past. The
three men donned masks and broke into the residence where the couple was

living. Puckett was not there, but the men took various items, and also

transported Ms. Yarbrough to a hotel room where they took turns sexually

assaulting her. They then drove the victim to a secluded spot where the two co-

indictees got out of the car and shot her three times, killing her. The State

informed the trial court at the plea hearing that appellant cooperated with

authorities in finding the murder weapon and other evidence which may

otherwise have never been found, and that appellant agreed to testify truthfully

at the trials of the co-indictees, against whom the State was seeking the death

penalty. Appellant’s counsel represented to the trial court that appellant did not

know about the planned enterprise at the time he traveled with the others to

Spalding County, and that, although appellant was present during the robbery,

he tried to get away a couple of times. The prosecutor stated at the hearing that

because of appellant’s age at the time the crimes were committed, the State

could not seek the death penalty. See Thompson v. Oklahoma, 487 U. S. 815

(108 SCt 2687, 101 LE2d 702) (1988).

      The trial judge set out, for the appellant, each of the crimes for which he

was charged along with the maximum sentence each crime carried. In response

                                        2
to being asked, appellant answered that he understood the charges and the

maximum possible sentences. Appellant responded that he understood when the

prosecutor informed him that, had he gone to trial and been convicted, he “could

have been found guilty of either malice or felony murder, which would carry a

life sentence; kidnapping with bodily injury, which carries a life sentence; armed

robbery, which carries a life sentence; burglary, which carries a sentence of up

to 20 years; rape, which carries a sentence of up to life imprisonment; and

aggravated sodomy, which carries a sentence of up to life imprisonment.” The

hearing transcript further shows appellant acknowledged he understood the

rights he would be waiving by entering a guilty plea, and the record also

contains appellant’s written acknowledgment of waiver of rights form. The trial

court accepted the factual basis presented by the prosecutor and found that

appellant was freely and voluntarily entering his plea. The judge accepted the

guilty plea and advised appellant that he had the right to appeal. No direct

appeal was filed.

      In 2013, over eighteen years after entering his guilty plea, appellant,

acting pro se, filed a motion for leave to file an out-of-time appeal. The trial

court conducted a hearing on appellant’s motion and denied it. This appeal

                                        3
followed.

      1. Appellant asserts his trial counsel provided ineffective assistance for

failing to file a direct appeal. In fact, appellant asserts he repeatedly asked his

trial counsel to seek an appeal of his guilty plea convictions. Ineffective

assistance of counsel for failing to file an appeal may provide a ground for

granting an out-of-time appeal. See Stephens v. State, 291 Ga. 837, 838 (1) (733

SE2d 266) (2012). This Court, however, has held that a criminal defendant is

not entitled to an out-of-time appeal on this ground unless he can show from the

existing record that the claims of error he could have raised in a timely direct

appeal would have been meritorious. Henderson v. State, 293 Ga. 6, 9 (2) (743

SE2d 19) (2013). Each of appellant’s various claims of error can be resolved

on the existing record. Accordingly, we review each claim of error, below, and

conclude with respect to each that appellant has failed to show he would have

prevailed in a direct appeal.

      In an out-of-time motion for new trial on the ground of ineffective

assistance of counsel, just as in any other case asserting ineffective assistance,

the appellant must meet the familiar Strickland1 standard and demonstrate both

      1
          Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

                                               4
deficient performance of counsel and that the deficient performance prejudiced

the appellant. See Stephens, supra, 291 Ga. at 838-839. Because, as set forth

below, appellant has failed to demonstrate he would have prevailed on appeal

with respect to any of the alleged errors he has raised, he has failed to meet the

required prejudice prong of the Strickland test, and his assertion that trial

counsel was ineffective for failing to file a direct appeal lacks merit. See Coulter

v. State, 295 Ga. 699, 702 (2) (c) (763 SE2d 713) (2014); Henderson, supra,

293 Ga. at 9; Stephens, supra, 291 Ga. at 840.

      2. Appellant asserts he received ineffective assistance of trial counsel at

the plea hearing. In particular, appellant asserts counsel inadequately

investigated the case, failed to file any pre-trial motions, and coerced the

defendant to plead guilty to crimes he did not commit by telling him the State

would seek the death penalty against him, just as it was seeking the death

penalty against the co-indictees. These claims are belied, however, by the

transcript of the plea hearing, which shows that in response to questioning,

appellant denied he had been coerced by anyone into taking the plea. Appellant

confirmed he was satisfied with the representation his counsel had provided

him, and further confirmed he understood the maximum possible sentences that

                                         5
could be imposed on the crimes charged. In fact, both the trial judge and the

prosecutor stated at the plea hearing that appellant could face life sentences for

the crimes charged, and appellant responded that he understood. At no time

during the plea hearing was any representation made that appellant could face

the death penalty if tried and convicted. Instead, the transcript shows that prior

to the trial judge’s pronouncement that he would accept the guilty plea, the

prosecutor reminded the judge the State could not seek the death penalty against

appellant due to his age at the time of the crimes. Thus, appellant inaccurately

states he was not informed that the prosecutor could not seek the death penalty

because of his age until after the guilty plea had been accepted.

      Pretermitting the issue of whether counsel’s assistance at the plea hearing

was deficient, appellant has failed to demonstrate he was prejudiced by the

alleged deficient performance, as required by the second prong of the Strickland

standard. Appellant responded at the plea hearing that he understood the nature

of his plea, that he was satisfied with counsel’s representation, and that he

understood the rights he was waiving by entering the plea. Consequently, even

if appellate counsel had been appointed to represent appellant in a direct appeal

with respect to his claim of ineffective assistance of counsel at the plea hearing,

                                        6
a timely appeal on this issue would have been unsuccessful because this claim

lacks merit. Other than the bare assertion that he was only sixteen years old at

the time of the plea hearing, appellant presented no evidence that he did not

fully understand the questions posed to him, even though he answered that he

did understand. Accordingly, the trial court did not err in denying appellant’s

motion for out-of-time appeal on this ground. See Coulter, supra, 295 Ga. at

702; Henderson, supra, 293 Ga. at 9; Stephens, supra, 291 Ga. at 840.

      3. Appellant asserts his guilty plea was not supported by a factual basis

as required by Uniform Superior Court Rule 33.9, but the transcript of the plea

hearing shows otherwise. Uniform Superior Court Rule 33.9 establishes a

mandatory requirement that a trial judge may enter a judgment upon a guilty

plea only after “such inquiry on the record as may satisfy the judge that there is

a factual basis for the plea.” “[T]he rule requires nothing more than that the trial

court make itself aware of the factual basis of the plea.” See State v. Evans, 265

Ga. 332, 334 (2) (454 SE2d 468) (1995). Here, both the prosecutor and

appellant’s counsel made a recitation at the plea hearing setting forth sufficient

facts of the case to support the guilty plea. The recited facts showed that a

sufficient factual basis existed to support appellant’s conviction either as a direct

                                         7
participant or as a party to the crimes with respect to each crime charged. By

accepting a plea, the judge is deemed to have made a factual finding that there

is an adequate factual basis for the plea. Adams v. State, 285 Ga. 744 (4) (a)

(683 SE2d 586) (2009). We find no error in that finding in this case.

         4. The underlying felony alleged in the felony murder charge against

appellant was aggravated assault with a deadly weapon. Appellant asserts that

because he did not plead guilty to aggravated assault, and because the State

failed to produce evidence that appellant committed either aggravated assault or

felony murder, the record shows appellant did not understand the elements of

the crime to which he pleaded guilty. But Georgia’s felony murder statute does

“‘not require that the defendant be charged and convicted of the underlying

felony. The jury must simply find that the defendant committed or attempted

to commit it.’ [Cit.] See also OCGA § 16-5-1 (c) . . . .” State v. Jones, 274 Ga.

287, 288 (1) (553 SE2d 612) (2001). Here, the statement of facts presented to

the trial court sufficiently supported appellant’s guilty plea to the felony murder

charge by demonstrating he was a party to the crimes of aggravated assault and

felony murder predicated upon the assault. Accordingly, this argument lacks

merit.

                                        8
      5. We also reject appellant’s assertion that the trial court abused its

discretion by accepting the plea of guilty to armed robbery and burglary since

appellant did not plead guilty to a weapons charge or a theft charge, and

because, according to appellant, the State failed to demonstrate appellant had

possession of a gun or other weapon. In support of this argument, appellant

claims the evidence showed only that he was present at the scene of the crimes,

and therefore, under the Jackson v. Virginia2 standard, the evidence did not

support a conviction on these charges. “Presence, companionship, and conduct

before and after an offense is committed are circumstances from which

participation in the criminal act may be inferred.” (Citation and punctuation

omitted.) Thornton v. State, 292 Ga. 87, 88 (2) (734 SE2d 393) (2012). The

factual statements presented by the prosecutor were sufficient to support the

acceptance of the guilty plea to these offenses as they demonstrated appellant

was a party to these crimes.

      6. Likewise, we reject appellant’s assertion that because he did not plead

guilty to theft, and because, according to appellant, the State failed to show he

entered Yarbrough’s residence with intent to commit theft, as alleged in the

      2
          443 U. S. 307 (99SCt 2781, 61 LE2d 560) (1979).

                                              9
burglary count of the indictment, then the conviction for burglary should be

reversed. As the factual basis for the plea, the State represented that the three

conspirators went to Yarbrough’s home for the purpose of robbing and killing

Charles Puckett who resided at Yarbrough’s residence. Despite the fact that

appellant’s counsel stressed to the court appellant’s youth and represented that

appellant tried to get away from his co-indictees, we reject the argument that the

trial court was not authorized to accept the plea. Under these facts, we find the

trial court did not err in accepting the guilty plea on the burglary charge because

appellant’s convictions for burglary, along with the other charges to which he

pleaded guilty, are supported by the showing that appellant was a party to these

crimes.

      7. Appellant further urges that he is entitled to an out-of-time appeal of

his guilty plea convictions because the elements of those crimes to which he

entered a guilty plea were not explained to him on the record. But the cases

appellant cites in support of this assertion are materially distinguishable. In

Breland v. Smith,3 involving the appeal of a ruling by the habeas court, the

defendant was charged with burglary but entered a guilty plea to theft by

      3
          247 Ga. 690 (279 SE2d 204) (1981).

                                               10
receiving stolen goods, a crime for which he was not indicted and which is not

a lesser included offense of burglary. The record contained no transcript of the

guilty plea hearing and was silent concerning the facts relied on to support the

guilty plea. The reason the conviction and sentence were set aside was because

it was impossible to find the defendant had notice of the crime to which he

pleaded guilty due to the total absence of a record.4 Here, the record supports

the acceptance of the guilty plea.

      Henderson v. Morgan5 also involved a case in which the defendant entered

a guilty plea to an offense for which he had not been indicted. The defendant

was charged with first-degree murder but pleaded guilty to and was sentenced

for second-degree murder, a crime involving intent to cause the death of the

victim. The defendant sought a writ of habeas corpus and, after a hearing, the

habeas court found the defendant was not advised by either his counsel or the

trial court that intent was an essential element of the crime to which he was

pleading guilty. The United States Supreme Court noted that the charge of

second-degree murder was never formally made, which would have included a


      4
          Id. at 691.
      5
          426 U. S. 637 (96 SCt 2253, 49 LE2d 108) (1976).

                                             11
charge that the victim’s assault “was ‘committed with a design to effect the

death of the person killed,’” as that crime was defined by the applicable state

statute.6 As in the case now before us, a description of the acts committed by the

defendant was presented to the judge hearing the guilty plea. But the Supreme

Court noted that an admission that the defendant attacked and killed the victim

did not necessarily involve an admission that defendant was guilty of second-

degree murder in that it did not include an admission of the element of intent to

kill. Finding that the defendant did not receive adequate notice of the offense

to which he pleaded guilty, the Supreme Court concluded his plea was

involuntary and affirmed the grant of a writ of habeas corpus.

      Finally, Harned v. Henderson,7 also relied upon by appellant, involved a

guilty plea to a crime involving an element that was not admitted at the plea

hearing. Among other things, the appellant was charged with rape and burglary

in the first degree as defined by the applicable state law. According to the

applicable statute, burglary in the first degree required the person charged to be

found guilty of causing physical injury to another as a result of the illegal entry


      6
          Id. at 645.
      7
          588 F2d 12 (2d Cir. 1978).

                                        12
into a dwelling.8 The plea hearing transcript showed that while the appellant

admitted he illegally entered the house in question, he repeatedly denied he

committed rape or attempted rape while there. Accordingly, the habeas court

found that appellant did not admit the physical injury element of the burglary

charge, and its finding that the plea was accepted without due process of law

was affirmed on appeal.

      In contrast to the facts involved in the cases relied upon by appellant, the

charges to which appellant pleaded guilty were among those set forth in the

indictment. On appeal of a decision involving a challenge to a guilty plea

conviction, “we accept the trial court’s factual findings and credibility

determinations unless they are clearly erroneous and independently apply the

legal principles to the facts.” Wright v. State, 292 Ga. 825, 827 (2) (742 SE2d

468) (2013). The evidence is sufficient to support the trial court’s finding that

appellant freely and voluntarily entered his guilty plea.

      8. We reject appellant’s assertion that his plea was not knowingly,

voluntarily, and intelligently entered. The record in this case shows appellant




      8
          Id. at 13.

                                       13
was advised of his Boykin9 rights and, upon questioning, appellant responded

that his plea was freely and voluntarily made without coercion. Appellant was

duly informed of the nature of the charges against him and the maximum

sentences he faced on each charge if convicted. The trial court did not commit

reversible error in denying appellant’s motion for out-of-time appeal.

      Judgment affirmed. All the Justices concur.



      Decided April 20, 2015 – Reconsideration denied May 26, 2015.
      Murder, etc. Spalding Superior Court. Before Judge Crawford.
      Anthony Lamar Freeman, pro se.
      Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant
District Attorney; Smauel S. Olens, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Meghan H. Hill, Assistant Attorney General, for appellee.




      9
          Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969).

                                             14
