ECHOLS v. THE STATE

Court of Appeals of Georgia1998-01-09No. A97A2182

231 Ga. App. 501498 S.E.2d 66

Summary · law.co

Holding. The trial court properly denied Echols' motion for an out-of-time appeal because Echols failed to demonstrate that the issues he sought to raise could be resolved by reference to facts contained in the trial record, which is a necessary prerequisite for obtaining an out-of-time appeal on ineffective assistance grounds. The judgment is affirmed.

Curtis Lee Echols pleaded guilty to armed robbery and aggravated assault charges in 1987. Nearly eight years later, in 1995, he filed a motion requesting permission to appeal out of time, claiming his trial counsel had been ineffective. He argued that the trial court improperly considered certain matters during sentencing and that his counsel had misinformed him about the sentence he would receive, making his plea involuntary.

The appellate court rejected Echols' arguments because he failed to demonstrate that his claims could be resolved based solely on the existing trial record. Regarding the alleged improper sentencing considerations, Echols provided no evidence from the record and the transcript showed no such improper conduct. As for his claim about counsel's misrepresentation, Echols relied only on his own unsworn statements made during the motion hearing, which do not constitute evidence, and the guilty plea hearing transcript contained no support for his assertion. Because Echols could not show his issues were resolvable from the record, he was not entitled to a direct appeal, and therefore not entitled to an out-of-time appeal based on ineffective assistance of counsel.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an out-of-time appeal is available when based on ineffective assistance of counsel
Whether alleged improper sentencing considerations can be raised on appeal from a guilty plea conviction
Whether a defendant's unsworn statements constitute evidence to support claims of counsel ineffectiveness

Procedural posture

Echols appealed the trial court's denial of his motion for an out-of-time appeal, proceeding pro se.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Ruffin, Judge.

On August 17, 1987, Curtis Lee Echols, Jr. pled guilty to three counts of armed robbery and two counts of aggravated assault. Following a hearing, the trial court accepted the guilty pleas and sentenced Echols for the offenses. On March 15, 1995, Echols filed a motion for an out-of-time appeal. The trial court denied the motion, and Echols appealed, pro se. For reasons which follow, we affirm.

“An out-of-time appeal is authorized when defendant’s failure to file a timely direct appeal was due to ineffective assistance of counsel. [Cits.] ‘But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. 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.’ [Cit.]” Manion v. State, 228 Ga. App. 270 (491 SE2d 506) (1997).

In this case, Echols has not shown that the issues he seeks to raise on appeal can be resolved by reference to facts in the record. First, Echols asserts that the trial court considered improper matters during his sentencing following the guilty pleas. See Clark v. State, 138 Ga. App. 266, 270 (5) (226 SE2d 89) (1976). Echols, however, has failed to cite any facts in the record supporting this assertion, and our own review of the guilty plea hearing transcript does not reveal that the trial court considered such improper matters. Absent any evidence of record, Echols cannot “rebut the presumption that the trial court did not consider the improper matter in fixing the sentence. [Cits.]” Hamrick v. State, 197 Ga. App. 89, 91-92 (4) (397 SE2d 503) (1990).

Second, Echols asserts that his plea was not knowing and voluntary because appointed trial counsel misinformed him about the sentence he would receive upon pleading guilty. Again, however, Echols has not shown how this assertion can be resolved by reference to the record. In his appellate brief, Echols cites only his own unsworn self-serving statements to the trial court at the out-of-time appeal motion hearing. These statements are not evidence. See Belcher v. State, 173 Ga. App. 509 (1) (326 SE2d 857) (1985); Hill v. State of Ga., 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986). And, our review of the guilty plea hearing transcript does not reveal that counsel gave any such advice. Accordingly, Echols again has failed to meet his burden of showing that this issue can be resolved by reference to facts in the record. See Manion, supra.

Decided January 9, 1998

Reconsideration denied March 24, 1998.

Curtis L. Echols, Jr., pro se.

David McDade, District Attorney, for appellee.

Under these circumstances, Echols was not entitled to a direct appeal from the judgment of conviction entered on his guilty plea, and he was therefore “ ‘not entitled to be informed of a non-existent “right” to appeal.’ [Cit.]” Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Accordingly, the trial court did not err in denying Echols’ motion for an out-of-time appeal. See id.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.