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Martin v. State

Court of Appeals of Georgia

September 4, 2014

MARTIN
v.
THE STATE

Cert. applied for.

Out-of-time appeal. Clayton Superior Court. Before Judge Simmons.

Marvlyn Martin, pro se.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellee.

Doyle, P. J., and Dillard, J., concur.

OPINION

Page 364

Miller, Judge.

Marvlyn Martin, who pled guilty to first degree homicide by vehicle (OCGA § 40-6-393 (a)) and possession of an open container (OCGA § 40-6-253 (b) (1) (B)), appeals pro se from the trial court's order denying his motion for out-of-time appeal. Martin contends that his plea was invalid because the indictment was defective and that his trial counsel was ineffective for failing to challenge the defective indictment and for failing to inform him of his right to withdraw his guilty plea. For the reasons that follow, we affirm.

We review a trial court's denial of a motion for out-of-time direct appeal for an abuse of discretion. Belcher v. State, 304 Ga.App. 645, 646 (1) (697 S.E.2d 300) (2010).

[329 Ga.App. 11] The record shows that Martin was indicted for homicide by vehicle for causing the victim's death while driving under the influence of alcohol, driving under the influence (DUI

Page 365

per se and DUI less safe), and other offenses, including possession of an open container. The indictment specifically alleged that Martin committed the offenses in Clayton County. On July 9, 2012, Martin entered a nonnegotiated plea to homicide by vehicle and possession of an open container. Martin was sentenced to fifteen years with ten to serve on the homicide conviction, and his fine for the open container violation was suspended.

Thereafter, on July 26, 2012, Martin filed a pro se motion to withdraw his guilty plea, arguing that he should have been sentenced as a first offender. Following a hearing, the trial court denied Martin's request for first offender treatment and denied his motion to withdraw his guilty plea. On August 28, 2012, Martin filed another motion to withdraw his guilty plea, raising the same claims. The trial court denied Martin's second motion on res judicata grounds. The trial court also denied Martin's subsequent motion for sentence reduction.

Martin then filed a motion for out-of-time appeal, arguing that the indictment failed to allege venue in Clayton County and his trial counsel was ineffective for allowing him to enter a guilty plea based on the purported fatal indictment. The trial court denied Martin's motion for an out-of-time appeal, finding that he failed to ...


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