January 20, 2015
Murder. Bibb Superior Court. Before Judge Self.
Ron C. Rhodes, pro se.
K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.
Thompson, Chief Justice.
Appellant Ron Rhodes appeals from the trial court's order denying multiple motions he filed following entry of his guilty plea. For the reasons that follow, we affirm.
On March 6, 2000, appellant, who had been indicted in connection with the shooting death of a Bibb County convenience store clerk, pled guilty but mentally retarded to charges of malice murder and armed robbery in exchange for the State's agreement not to pursue the death penalty against him. On March 14, 2000, the trial court sentenced appellant on these charges to two consecutive terms of life imprisonment. More than thirteen years later, in July 2013 and January 2014, appellant filed numerous motions in the trial court [296 Ga. 419] seeking, among other things, to withdraw his guilty plea, an out-of-time appeal, appointment of counsel, and reversal of his convictions. The trial court, without holding an evidentiary hearing, denied all of appellant's motions, and appellant filed this direct appeal. See Simmons v. State, 276 Ga. 525, 525, n. 2 (579 S.E.2d 735)
(2003) (denial of motion for out-of-time appeal is directly appealable where conviction has not been subject of direct appeal).
1. Regardless of the nomenclature used, the majority of appellant's motions seek either to withdraw his guilty plea or to substantively challenge his convictions through an out-of-time appeal. A trial court's authority to grant a motion to withdraw a guilty plea ends after expiration of the term of court during which a plea is entered, however, and appellant's motion, filed thirteen years after entry of his plea, was filed too late to give the trial court any authority to allow the withdrawal of appellant's guilty plea. See Brown v. State, 280 Ga. 658, 658 (631 S.E.2d 687) (2006).
See also Dupree v. State, 279 Ga. 613 (619 S.E.2d 608) (2005). Accordingly, the trial court's denial of appellant's motion to withdraw his guilty plea and all other motions in which he sought the withdrawal of his plea are affirmed. It follows that appellant was not entitled to the appointment of counsel to assist with his untimely filed motion. See Pierce v. State, 289 Ga. 893, 894 (717 S.E.2d 202) (2011).
2. With regard to appellant's requests for an out-of-time appeal, appellant asserts he is entitled to an out-of-time appeal both because his guilty plea was not made freely and voluntarily and because he received ineffective assistance of counsel. We agree with the trial court's denial of these motions.
As recently stated by this Court, an out-of-time appeal is intended to address the constitutional concerns that arise when a defendant is [296 Ga. 420] denied his first appeal because the counsel to which he was constitutionally entitled rendered ineffective assistance by failing to advise him of his right to appeal and counsel's deficiency resulted in prejudice. See Stephens v. State, 291 Ga. 837, 837-838 (733 S.E.2d 266) (2012). Thus, an out-of-time appeal is available when a direct appeal was not taken due to ineffective assistance of counsel. See id. When a conviction is entered based on a plea of guilty, a direct appeal is available only " if the issue on appeal can be resolved by reference to facts on the record." Grantham v. State, 267 Ga. 635, 635 (481 S.E.2d 219) (1997). " Thus, if 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. [Cit.]" Hagan v. State, 294 Ga. 716, 718 (755 S.E.2d 734) (2014). If the issues a defendant wishes 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 have been unsuccessful, " then plea counsel's failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result." Stephens, supra at 839, quoting Smith v. State, 287 Ga. 391, 403, n. 5 (697 S.E.2d 177) (2010).
(a) Appellant's claim that his guilty plea was not freely entered cannot be resolved on the face of the record. Appellant alleges his plea was involuntary because plea counsel threatened him, told him what to say, and promised him he would be going home to see his mother. Resolution of this issue requires evidence of the conversations between
appellant and his plea counsel, evidence that is not part of the plea transcript. Accordingly, this claim could not have been properly raised in a direct appeal from appellant's guilty plea and is not a proper ground for an out-of-time appeal. See Hagan, supra, 294 Ga. at 718; Stewart v. State, 268 Ga. 886, 887 (494 S.E.2d 665) (1998).
(b) Similarly, appellant's claim that counsel provided ineffective assistance by failing to explain the State's plea offer, failing to investigate, and failing to obtain the services of a mental health expert for sentencing purposes cannot be decided by reference to the record. Although the trial court correctly recognized and the record reflects that appellant was evaluated by two experts who offered their opinions regarding both appellant's competency to stand trial and his mental capacity at the time of the crimes, appellant in this claim alleges counsel should have hired an additional expert to present mitigating evidence related to his mental health history, including the fact that he had suffered a previous head injury. Resolution of this issue, like those considered above, requires evidence of discussions between appellant and plea counsel and/or evidence of counsel's reasons for electing not to hire an additional expert. Accordingly, these allegations of ineffective assistance are not proper grounds for [296 Ga. 421] an out-of-time appeal and must be pursued within a properly filed petition for habeas corpus. Gibson v. State, 290 Ga. 516 (2) (b) (722 S.E.2d 741) (2012).
(c) We do find one ground of ineffective assistance raised that can be decided by reference to the record, although adversely to appellant. Appellant claims plea counsel was ineffective by failing to object to comments made by the trial judge during the plea hearing, comments which he argues violated OCGA § 17-8-57. However, that Code section prohibits a trial judge in a criminal case from expressing or intimating during the progress of the case or in the jury charge his or her opinion as to what has been proved or as to the guilt of the accused. The prohibitions found in OCGA § 17-8-57 do not apply when the complained of comments are made outside the presence of the jury, and therefore, do not apply where, as here, the comments are made by a trial judge during a plea hearing. See Smith v. State, 236 Ga.App. 122, 124-125 (3) (511 S.E.2d 223) (1999) (" Inasmuch as the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced and the jury was not present at the time of [the challenged] remarks, the statute was not violated. [Cits.]" ). Therefore, counsel's failure to object to the trial court's comments on OCGA § 17-8-57 grounds was not evidence of deficient performance. See Geiger v. State, 295 Ga. 648, 654 (5) (c) (763 S.E.2d 453) (2014) (failure to raise meritless objection cannot be evidence of deficient performance). Because this challenge could be decided against appellant by reference to the record, it was not error to deny his motion for out-of-time appeal on this ground. See Lewis v. State, 293 Ga. 544, 548 (1) (748 S.E.2d 414) (2013).
3. Based on our determination that appellant was not entitled to withdraw his guilty plea or to an out-of-time appeal, we find no error in the trial court's denial of appellant's remaining motions in which he raised or sought evidence to support substantive challenges to his convictions.
Judgment affirmed. All the Justices concur.