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Snelson v. State

Supreme Court of Georgia

April 16, 2018

SNELSON
v.
THE STATE.

          HUNSTEIN, JUSTICE.

         Xavier Keith Snelson, Jr., appeals the denial of his motion for an out-of-time direct appeal; finding no error, we affirm.

         In October 2005, a Cobb County grand jury indicted Snelson for the July 5, 2005 murder, felony murder and aggravated assault of Natilya Smith. In May 2006, Snelson pled guilty to the counts as alleged in his indictment. He was sentenced to life in prison for malice murder; the remaining counts were either merged into the malice murder or vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 S.E.2d 479) (1993).

         In October 2009, Snelson filed a pro se motion which, though titled a motion to vacate sentence, was substantively a motion to withdraw his 2006 guilty plea. In that motion, Snelson claimed that he should be allowed to withdraw his guilty plea because both the trial court and his guilty plea counsel failed to inform him of his right to withdraw his guilty plea, frustrating his right to appeal. The trial court denied the motion on November 17, 2009, finding that Snelson was "neither entitled to withdraw his guilty plea as a matter of right, nor [to] the right to a direct appeal." Snelson did not appeal this order.

         On October 28, 2016, Snelson filed a pro se motion for an out-of-time appeal of his 2006 guilty plea.[1] The trial court denied the motion on April 17, 2017, and Snelson filed a timely notice of appeal to this Court. On appeal, Snelson enumerates numerous grounds of error; however, these claims are either not preserved for appellate review or do not provide grounds for relief.

         After only raising a general claim of ineffective assistance in his 2016 motion for an out-of-time direct appeal, Snelson now raises numerous, specific grounds of ineffective assistance of guilty plea counsel, as well as new claims of trial court error and prosecutorial misconduct.[2] Because these new claims were not raised in or ruled upon by the trial court, they are not preserved for review on appeal. See McClendon v. State, 299 Ga. 611, 616 (791 S.E.2d 69) (2016) ("Because [appellant] raise[d] an issue on appeal that was not presented or ruled upon by the trial court, his argument is not preserved for review by this Court.").

         Furthermore, though Snelson argued below that both his guilty plea counsel and the trial court failed to inform him of his right to withdraw his guilty plea, frustrating his right to appeal, these claims were denied by the trial court in 2009 and were not appealed; accordingly, res judicata precludes review of these enumerations. Beasley v. State, 298 Ga. 49, 51 (779 S.E.2d 301) (2015). While the trial court did not cite res judicata in its 2017 order denying Snelson's motion for an out-of-time appeal, "as the matters [Snelson] raised in that motion were precluded by that doctrine, the trial court did not err in denying the motion, and we affirm its judgment under the 'right for any reason' rule." Id.

         Turning to the claims that are arguably preserved for review by this Court - general claims that Snelson was denied his Sixth Amendment right to competent and conflict free counsel - as we recently explained in Malverty v. State, No. S17A1468 (decided on Feb. 19, 2018),

"'When a defendant pleads guilty and then seeks an out-of-time appeal from that plea, he must make the threshold showing that he would have been entitled to file a timely direct appeal from the plea[.]'" (Citations omitted.) Moore v. State, 285 Ga. 855, 856 (684 S.E.2d 605) (2009). A defendant is entitled to such an appeal 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). "'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.'" (Citations omitted.) Stephens v. State, 291 Ga. 837, 838 (733 S.E.2d 266) (2012). "If the issues that a defendant raises in a motion for out-of-time appeal can be resolved against him based upon the existing record, there is no error in denying the motion." Marion v. State, 287 Ga. 134, 134 (695 S.E.2d 199) (2010).

Id. at (1). We agree with the trial court that Snelson has failed to show that he would have been entitled to file a timely direct appeal because his general claims that he was denied his right to competent and conflict free counsel cannot be resolved on the existing record. Id. Accordingly, Snelson is not entitled to relief.

         Judgment affirmed.

         All the Justices concur.

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