MCFADDEN, P. J., and MCMILLIAN, J.
Miller, Presiding Judge.
the second appearance of this pro se out-of-time appeal
before this Court. In Reid v. State, 339 Ga.App.
772, 778 (792 S.E.2d 732) (2016) (physical precedent only),
reconsideration denied (Dec. 7, 2016), cert. denied (June 5,
2017) ("Reid I"), this Court held that
Reid's attempt to withdraw his guilty plea could not
serve as a basis for an out-of-time appeal as it lacked
merit, but that given the validity of his merger claim, an
evidentiary hearing was necessary to determine if ineffective
assistance of counsel caused his failure to timely appeal. On
remand, the trial court held an evidentiary hearing on the
issue of the merger of two of Reid's convictions, as well
as Reid's claim of ineffective assistance of counsel.
Reid moved for appointment of counsel and to withdraw his
guilty plea. The trial court implicitly denied Reid's
motion to appoint counsel, denied Reid's motion to
withdraw his guilty plea, found that the felony and
misdemeanor obstruction convictions did not merge, and denied
Reid's motion for out-of-time appeal upon deciding that
Reid had not established ineffective assistance of counsel.
This appeal followed, and for the following reasons, we
affirm the trial court's refusal to appoint counsel, as
well as the denial of Reid's motion to withdraw guilty
plea, reverse the trial court's finding that Reid is not
entitled to an out-of-time appeal, and vacate its ruling as
As we stated in Reid I,
A direct appeal from a judgment of conviction and sentence
entered on a guilty plea is only available if the issue on
appeal can be resolved by reference to facts on the record.
The ability to decide the appeal based on the existing record
thus becomes the deciding factor in determining the
availability of an out-of-time appeal when the defendant has
pled guilty. Issues regarding the effectiveness of counsel
[regarding failure to pursue a direct appeal] are not reached
unless the requirement that the appeal [can] be resolved by
reference to facts on the record is met.
(Citation omitted.) Reid I, supra, 339 Ga.App. at
viewed, and as more fully explained in Reid I, Reid
pled guilty on August 19, 2014, to possession with intent to
distribute cocaine, two counts of aggravated assault on a
peace officer, two felony counts of obstruction of a peace
officer, and two misdemeanor counts of obstruction of a peace
officer. Reid I, supra, 339 Ga.App. at 732. Reid
sought an out-of-time appeal, arguing that he should be
allowed to withdraw his guilty plea and that some of his
convictions should have merged. Id. This Court held
that the record demonstrated that Reid's guilty plea was
knowing and voluntary, thus, it could not serve as the basis
for an out-of-time appeal. Id. at 774-775 (1). We
also held, however, that at least two of Reid's
convictions should have merged, and two others possibly
should have merged. Id. at 776-777 (2) (a) - (b).
For this reason, we found that a direct appeal of Reid's
conviction would have had merit and, accordingly, the trial
court was required to hold an evidentiary hearing as to
whether ineffective assistance of counsel was the reason
Reid's conviction was not timely appealed. Id.
at 778 (2) (c).
remand, after Reid filed a motion for appointment of counsel
and another motion to withdraw guilty plea, the trial court
held an evidentiary hearing. At the hearing, the trial court
heard testimony from Reid and the two officers involved in
the altercation that served as the basis for Reid's
convictions. Although most of Reid's testimony concerning
the ineffectiveness of his trial counsel related to
counsel's alleged lack of preparation and his advice that
Reid accept the State's plea offer, Reid also testified
as follows: "[I]f I had've know (sic) that
I could appeal this, you know, I would. I would have, you
know, before the time ran out. But I didn't even know
anything until I got to prison and started trying to learn .
. ." The State attempted to subpoena Reid's trial
counsel to testify at the hearing, but determined that he had
retired and moved to Alaska. The State suggested, however,
that the issue of ineffective assistance of counsel could be
decided without its witness. Therefore, the trial court
proceeded without the testimony of trial counsel with the
understanding that if the trial court believed trial
counsel's testimony was necessary, it would continue the
hearing so his testimony could be secured.
the trial court implicitly denied Reid's motion for Reid
counsel; denied his motion to withdraw his guilty plea; found
that the convictions for felony and misdemeanor obstruction
did not merge; and denied Reid's motion for an
out-of-time appeal upon finding Reid was not prejudiced by
any alleged ineffective assistance of counsel. Reid appeals.
contends that the trial court erred in failing to appoint him
counsel on remand. We disagree.
An indigent defendant is entitled to representation by
counsel only for trial and for the direct appeal from the
judgment of conviction and sentence. . . [B]ecause a motion
for an out-of-time appeal cannot be construed as part of a
criminal defendant's first appeal of right, [Reid] was
not entitled to the assistance of appointed counsel.
(Citations and punctuation omitted.) Pierce v.
State, 289 Ga. 893, 894 (1) (717 S.E.2d 202) (2011).
Here, Reid did not timely move to withdraw his guilty plea or
timely appeal his conviction. Thus, Reid was not entitled to
appointed counsel on remand. See id.
also alleges the trial court erred in failing to vacate the
sentences that this Court found should have merged. We
Reid I, this Court held that two of Reid's
convictions, for aggravated assault on Officer Brock and
felony obstruction of Officer Brock, should have merged.
Reid I, 339 Ga.App. at 777 (2) (a). However, in
Reid I this Court did not instruct the trial court
to vacate any of the convictions. Rather, the holding that
the aggravated assault and felony obstruction convictions
should have merged was made in the context of establishing
that Reid alleged a meritorious appellate issue, which could
open the door to consideration of whether Reid's failure
to timely appeal was due to ineffective assistance of
counsel. Id. On remand, therefore, the trial court
was instructed to hold a hearing to determine if the
ineffectiveness of Reid's trial counsel frustrated his
right to a direct ...