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Pineda v. State

Court of Appeals of Georgia

August 7, 2014

PINEDA
v.
THE STATE

Cert. applied for.

Out-of-time appeal. Gwinnett Superior Court. Before Judge Warren Davis.

Jose Pineda, pro se.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

McFADDEN, Judge. Andrews, P. J., and McMillian, J., concur.

OPINION

Page 627

McFadden, Judge.

In 2011, after pleading guilty to conspiracy to commit trafficking in methamphetamine and conspiracy to commit trafficking in cocaine, Jose Pineda was convicted of those offenses. He did not timely appeal from the convictions, but in 2013 he filed a motion for an out-of-time appeal, which the trial court denied. Pineda appeals from the denial of that motion. Because, based on the existing record, his claims either can be resolved against him or cannot be resolved, we affirm.

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.

Stephens v. State, 291 Ga. 837, 837-838 (2) (733 S.E.2d 266) (2012) (citations omitted). Where, as here, a defendant seeks an out-of-time appeal from a conviction entered on a guilty plea, we consider whether the issues that the defendant seeks to appeal

can be resolved by reference to the existing record. ... [I]f 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 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. 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 [328 Ga.App. 807] such an appeal was not professionally deficient, nor did any prejudice result.

Hagan v. State, 294 Ga. 716, 718 (3) (a) (755 S.E.2d 734) (2014) (citations and punctuation omitted; emphasis in original).

In his motion for out-of-time appeal, Pineda sought to raise two claims: a challenge to the sufficiency of the indictment underlying his convictions, and a challenge to the effectiveness of his trial counsel. ...


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