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Barker v. State

Court of Appeals of Georgia, First Division

August 8, 2017

BARKER
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         James Barker appeals pro se from the denial of his motion for an out-of-time appeal. He contends that the arrest warrant and affidavit were insufficient to establish probable cause, that the indictment was fatally defective, that he was unaware of his Boykin right against self-incrimination, and that plea counsel was ineffective. Following our review, we affirm.

         After being indicted on charges for aggravated child molestation, Barker entered a negotiated guilty plea to child molestation on August 14, 2014. He was sentenced to twenty years to serve five. On January 31, 2017, Barker filed a motion for an out-of-time appeal in which he asserted, among other things, that his arrest warrant and indictment were invalid, that plea counsel was ineffective, and that his sentence was vague and ambiguous. The trial court denied Barker's motion, and it is from that order that he appeals.

In order to receive an out-of-time appeal from a judgment entered on a guilty plea, [Barker] must show (1) that the claims he seeks to raise on appeal can be resolved on the existing record; and (2) that the failure to pursue a timely appeal was due to the ineffective assistance of his plea counsel. But if the claims [Barker] seeks to raise can be resolved against him on the face of the record, so that even a timely appeal would not have been successful, then plea counsel cannot be said to have rendered ineffective assistance in failing to advise the appellant or otherwise assist him in pursuing an appeal. Accordingly, in reviewing [Barker's] claims, we first assess whether they may be resolved on the record before us. For those that cannot, no relief is available; for those that can be resolved on the record but only against [Barker], relief is also unavailable; and for any claims that remain, we must proceed to consider whether plea counsel rendered ineffective assistance in failing to pursue such claims.

(Citations and punctuation omitted.) Waye v. State, S17A0310, 2017 Ga. LEXIS 530, at *1-2 (June 19, 2017). "The denial of a motion for out-of-time appeal is a matter within the discretion of the trial court, " and the "decision to deny such a motion will not be overturned absent an abuse of discretion."(Citation omitted.) Brown v. State, 290 Ga. 321, 321 (1) (720 S.E.2d 617) (2012).

         1. Barker first contends that the arrest warrant and attached affidavits were insufficient to establish probable cause because certain information was omitted, including the source of the officer's information.

[A] plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea, [and] [a]n exception will only be made if the error goes to the very power of the State to bring the defendant into court. No such situation is presented here. It follows that [Barker] was not entitled to challenge the validity of the arrest warrant by way of an out-of-time appeal.

(Citations and punctuation omitted.) Moore v. State, 285 Ga. 855, 858 (2) (684 S.E.2d 605) (2009).

         2. Barker next contends that his indictment was fatally defective in that it alleged that the crime occurred between May 1, 2013 and August 30, 2013, and thus failed to track the language of OCGA § 17-7-54, which provides, in pertinent part, that an indictment must state with "sufficient certainty" the date of the alleged offense.[1] However, if the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates. O'Rourke v. State, 327 Ga.App. 628, 631-632 (2) (760 S.E.2d 636) (2014).

The true test of the sufficiency of the indictment is . . . whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Jordan v. State, 220 Ga.App. 627, 629 (2) (470 S.E.2d 242) (1996).

         We first note that Barker did not challenge the indictment, and "[g]iven that [Barker] pled guilty to the crime charged, his only possible challenge to the indictment would be the sufficiency thereof." Golden v. State, 299 Ga.App. 407, 411 (3) (683 S.E.2d 618) (2009).

         In the order denying his motion for an out-of-time appeal, the trial court found that "[s]ubstantive defects did not exist in the indictment, " and at the plea hearing the State presented as a factual basis for the charges that the time period at which the acts occurred was during the time that Barker lived with the family of the victim, which put Barker on notice with "sufficient certainty" of the date of the offense. See OCGA § 17-7-54 (a). Accordingly, Barker's claim that the indictment was invalid is ...


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