September 22, 2014
Murder. Bulloch Superior Court. Before Judge Turner.
Dustin J. Coulter, pro se.
Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
Hines, Presiding Justice.
Prisoner Dustin James Coulter files this pro se appeal from the denial of his motion
for an out-of-time appeal following the entry of his guilty pleas to two counts of malice murder. For the reasons that follow, we affirm.
On May 2, 2006, a Bulloch County grand jury indicted Coulter, his wife Alexandra Coulter, and their friend Jerry Easters, for two counts each of malice murder, armed robbery, and possession of a knife during the commission of murder in connection with the November 21, 2005 armed robberies and fatal stabbings of Jack Walton Futch and his wife, Paula Franklin Futch. The State gave notice of its intent to seek the death penalty for Coulter on May 26, 2006, and the prosecution proceeded under the Unified Appeal Procedure. The application for interim review was denied by this Court on February 12, 2008. Following the empaneling of a jury to try Coulter, on November 7, 2008, Coulter, pursuant to a negotiated agreement, pled guilty to two counts of malice murder and received concurrent life sentences; the remaining counts were nol prossed. More than three years later, on February 2, 2012, Coulter filed, inter alia, a pro se motion to withdraw his guilty pleas. The trial court dismissed the motion for lack of jurisdiction on February 10, 2012, as the motion was filed outside the term of court in which the guilty pleas were entered.
[295 Ga. 700] Again proceeding pro se, on December 9, 2013, Coulter filed the present motion for an out-of-time appeal, claiming that he was denied a direct appeal due to the ineffective assistance of his counsel and inadequate advice about his appellate rights. As to the issues that Coulter would raise in a granted direct appeal, he alleged that he was denied the effective assistance of counsel because of counsel's failure to advise him of his " right to appeal," and that his guilty pleas were not intelligently and knowingly, and therefore voluntarily, entered as the record is silent regarding venue of the charged crimes, and because the superior court did not advise him of all of the Boykin  rights. The superior court denied the motion on December 13, 2013, after finding that Coulter failed to meet the requirements for granting an out-of-time appeal.
1. The purpose of an out-of-time appeal is to address constitutional concerns that arise when a criminal defendant is denied a first appeal of right because the counsel to whom he was entitled to have assist him in that appeal was professionally deficient in failing to advise him to file a timely appeal, and that this deficiency caused him prejudice; therefore, an out-of-time appeal is appropriate when a direct appeal was not taken due to the ineffective assistance of counsel. Stephens v. State, 291 Ga. 837, 838 (1) (733 S.E.2d 266) (2012). However, that is not the end of the analysis because in order to have an out-of-time appeal on the basis of ineffective assistance of counsel, the defendant must have had the right to file a direct appeal, and a direct appeal from a judgment of conviction and sentence entered following a guilty plea is available to the defendant only if the issue on appeal is capable of resolution by reference to facts on the record. Id. Consequently, a determinative factor in the availability of an out-of-time appeal when the defendant has pled guilty is whether the appeal can be decided based upon the existing record; any question of the effectiveness of counsel is not reached unless it can be resolved by reference to facts on the record.
Thus, the first inquiry is whether the issues that Coulter seeks to appeal can be resolved on the existing record because, if not, he would have had no right to file even a timely appeal, and therefore, would not be entitled to an out-of-time appeal. Id. If, indeed, his claims require expansion of the record, he would have to pursue them by way of a petition for writ of habeas corpus. Id. But, if in his motion [295 Ga. 701] for an out-of-time appeal, Coulter has raised an issue that can be determined on the existing record, concerns regarding the effectiveness of his
counsel are reached, and he must show that his counsel was ineffective in not filing a timely appeal under the test set forth in Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). Such test places the burden on a defendant to show both that his trial counsel provided deficient performance, and that but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different, which in the present context means that an appeal would have been successful. Stephens v. State, supra at 838-839 (1). This Court need not address both parts of the Strickland test if the defendant makes an insufficient showing on one; in fact, the Court need not determine whether counsel's performance was deficient before examining any prejudice suffered by the defendant as a result of the alleged deficiencies. Stephens v. State, supra at 839 (1). Consequently, if the claims that the defendant seeks 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 not have been successful, then the failure of plea counsel to advise the defendant to file such an appeal cannot be found professionally deficient, nor can any prejudice result. Id. Thus, in such circumstances, the trial court may deny the defendant's motion for an out-of-time appeal without an evidentiary hearing. Id. This is precisely such a case.
2. In this appeal, Coulter enumerates the same claimed errors that he raised in the superior court in support of his motion for an out-of-time appeal. And, it is apparent that such claims can be resolved, albeit adversely to Coulter, on the present record.
(a) Coulter first contends that his pleas were not " intelligent, knowing, and voluntary" because venue of the crimes had to be proven and the record is silent on venue. However, the indictment returned by the Bulloch County grand jury to which Coulter pled guilty alleged that the malice murders occurred " in the county aforesaid," which was Bulloch County. Furthermore, although the State would have had to prove the facts establishing venue at any trial, when Coulter pled guilty to all the allegations in the malice murder counts of the indictment, he was admitting to all of the elements of the crime of malice murder, and he waived the defense of failure to establish venue. Wright v. Hall, 281 Ga. 318, 319 (1) (638 S.E.2d 270) (2006).
(b) Coulter further contends that the plea court failed to advise him of all of his Boykin rights, specifically the right to confront witnesses against him, the right to compulsory process, and the privilege against self-incrimination at trial. But, the record reflects otherwise. During the plea hearing, Coulter affirmed that his two [295 Ga. 702] defense attorneys had advised him of all of his rights as set forth in his sworn statement. Then the plea court sufficiently went over the Boykin rights with Coulter during the plea hearing, and prior to the acceptance of his guilty pleas. See Burns v. State, 291 Ga. 547, 548 (1) (a) (731 S.E.2d 681) (2012) ( Boykin does not require " magic words" to convey the defendant's rights during a guilty plea proceeding).
(c) Finally, Coulter maintains that his plea counsel was deficient for not advising him of his " right" to pursue a direct appeal, as evidenced by the silence of the record in this regard, and that he was prejudiced thereby because a timely direct appeal would have shown the State's failure to prove venue and
the plea court's failure to properly advise him of his Boykin rights. But, as has already been discussed, there is no merit to Coulter's claims regarding venue and the Boykin rights; therefore, a timely appeal making such claims would not have been successful. Consequently, any failure by Coulter's counsel to advise him to file such an appeal cannot be found to be a deficiency in counsel's representation or a cause of any prejudice to Coulter. See Division 1, supra.
It was not error to refuse to grant Coulter an out-of-time appeal.
All the Justices concur.