DILLARD, P. J., RAY and SELF, JJ.
Lamb filed a pro se appeal from the trial court's order
denying his motion for an out-of-time appeal. For the reasons
that follow, we affirm in part, vacate in part, and remand
the case for resentencing.
pled guilty in December 2013 to child molestation and incest.
He was sentenced to 25 years for child molestation and 10
years for incest, for a total of 35 years, with the first 18
years to be served in confinement. Lamb subsequently filed a
pro se motion for an out-of-time appeal, asserting that he
did not receive effective assistance of counsel because his
plea counsel did not present the issue of his diminished
mental capacity, and that his guilty plea was not made freely
and voluntarily because he was under the influence of
"psychotropic" medications at the time of the plea.
The trial court denied the motion. Lamb appeals from that
law is clear that:
a defendant is not entitled to an out-of-time appeal unless
he had the right to file a direct appeal. And a direct appeal
from a judgment of conviction and sentence entered on a
guilty plea is available only if the issue on appeal can be
resolved by reference to facts on the record. For this
reason, the ability to decide the appeal based on the
existing record is the deciding factor in determining the
availability of an out-of-time appeal when the defendant has
Smith v. State, 335 Ga.App. 639, 640 (781 S.E.2d
400) (2016). As a result, "the merits of [Lamb's]
appeal can be addressed if, and only if, the questions that
he seeks to raise on appeal may be resolved by facts
appearing in the record, including the transcript of his
guilty plea hearing." Kennedy v. State, 319
Ga.App. 498, 498-499 (735 S.E.2d 819) (2012). We therefore
look to the issues raised in Lamb's brief and whether
those issues may be resolved by the record on appeal.
first consider Lamb's argument that he did not knowingly
or voluntarily enter the plea because he was impaired by
medication at the time.
Where the validity of a guilty plea is challenged, the State
bears the burden of showing that the plea was voluntarily,
knowingly, and intelligently made. The State may do this by
showing through the record of the guilty plea hearing that
(1) the defendant has freely and voluntarily entered the plea
with (2) an understanding of the nature of the charges
against him and (3) an understanding of the consequences of
Johnson v. State, 260 Ga.App. 897, 899 (1) (581
S.E.2d 407) (2003) (citation and punctuation omitted).
transcript of the guilty plea proceeding reveals that before
accepting Lamb's plea, the trial court inquired whether
he was taking any medications. Lamb said that he was on
medication. The trial court explored the issue and
[b]ut you are thinking clearly today, and you understand
everything I'm saying to you, and you've been able to
converse or communicate with your lawyer okay; is that right?
responded, "[y]es, sir." The trial court then
explained that it was "going to find that this plea is
given freely, voluntarily, and knowingly; there's been no
use of force, threats, pressure, intimidation, and no
promises made. Is that correct?" Lamb responded,
responded appropriately and cogently to the trial court's
inquiries, and nothing in the proceeding reflects that the
medication affected his understanding of the proceedings.
"[He] offered no indication to the trial court that he
suffered from a medication-induced impairment. To the
contrary, he represented to the court that the medicine did
not affect his ability to understand the proceedings. No
further inquiry was required." Brown v. State,
259 Ga.App. 576, 579 (578 S.E.2d 188) (2003). Because
Lamb's argument is of the sort that may be "resolved
solely by reference to the existing record, " see
Smith, 335 Ga.App. at 640, Lamb properly raised the
argument in his motion for an out-of-time appeal. See
Kennedy, 319 Ga.App. at 498-499. However, we