Reconsideration denied May 26, 2015.
Murder, etc. Spalding Superior Court. Before Judge Crawford.
Anthony Lamar Freeman, pro se.
Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
BENHAM, Justice. All the Justices concur.
Appellant Anthony Lamar Freeman was convicted of felony murder and other related crimes based upon a guilty plea entered in [297 Ga. 147] 1995. He now appeals the trial court's denial of his motion for leave to file an out-of-time appeal. For the reasons set forth below, we affirm.
The criminal charges against appellant included a charge of malice murder and other crimes related to the rape and shooting death of Alicia Lynn Yarbrough. At the time of the crimes, appellant was fifteen years of age. In 1995, at the age of sixteen, appellant entered a plea of guilty to felony murder, armed robbery, and burglary, and he was sentenced to two life sentences to be served concurrently, plus twenty years. The factual basis presented by the prosecuting attorney at the plea hearing showed that appellant joined his co-indictees, two men who were older than appellant, in traveling to Spalding County for the purpose of killing Charles Puckett, who was then living with Ms. Yarbrough. One of the co-indictees had dated Ms. Yarbrough in the past. The three men donned masks and broke into the residence where the couple was living. Puckett was not there, but the men took various items, and also transported Ms. Yarbrough to a hotel room where they took turns sexually assaulting her. They then drove the victim to a secluded spot where the two co-indictees got out of the car and shot her three times, killing her. The State informed the trial court at the plea hearing that appellant cooperated with authorities in finding the murder weapon and other evidence which may otherwise have never been found, and that appellant agreed to testify truthfully at the trials of the co-indictees, against whom the State was seeking the death penalty. Appellant's counsel represented to the trial court that appellant did not know about the planned enterprise at the time he traveled with the others to Spalding County, and that, although appellant was present during the robbery, he tried to get away a couple of times. The prosecutor stated at the hearing that because of appellant's age at the time the crimes were committed, the State could not seek the death penalty. See Thompson v. Oklahoma, 487 U.S. 815 (108 S.Ct. 2687, 101 L.Ed.2d 702) (1988).
The trial judge set out, for the appellant, each of the crimes for which he was charged along with the maximum sentence each crime carried. In response to being asked, appellant
answered that he understood the charges and the maximum possible sentences. Appellant responded that he understood when the prosecutor informed him that, had he gone to trial and been convicted, he " could have been found guilty of either malice or felony murder, which would carry a life sentence; kidnapping with bodily injury, which carries a life sentence; armed robbery, which carries a life sentence; burglary, which carries a sentence of up to 20 years; rape, which carries a sentence of up to life imprisonment; and aggravated sodomy, which carries a sentence of up to life imprisonment." The hearing transcript [297 Ga. 148] further shows appellant acknowledged he understood the rights he would be waiving by entering a guilty plea, and the record also contains appellant's written acknowledgment of waiver of rights form. The trial court accepted the factual basis presented by the prosecutor and found that appellant was freely and voluntarily entering his plea. The judge accepted the guilty plea and advised appellant that he had the right to appeal. No direct appeal was filed.
In 2013, over eighteen years after entering his guilty plea, appellant, acting pro se, filed a motion for leave to file an out-of-time appeal. The trial court conducted a hearing on appellant's motion and denied it. This appeal followed.
1. Appellant asserts his trial counsel provided ineffective assistance for failing to file a direct appeal. In fact, appellant asserts he repeatedly asked his trial counsel to seek an appeal of his guilty plea convictions. Ineffective assistance of counsel for failing to file an appeal may provide a ground for granting an out-of-time appeal. See Stephens v. State, 291 Ga. 837, 838 (1) (733 S.E.2d 266) (2012). This Court, however, has held that a criminal defendant is not entitled to an out-of-time appeal on this ground unless he can show from the existing record that the claims of error he could have raised in a timely direct appeal would have been meritorious. Henderson v. State, 293 Ga. 6, 9 (2) (743 S.E.2d 19) (2013). Each of appellant's various claims of error can ...