Keith Snelson, Jr., appeals the denial of his motion for an
out-of-time direct appeal; finding no error, we affirm.
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
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.
October 28, 2016, Snelson filed a pro se motion for an
out-of-time appeal of his 2006 guilty plea. 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.
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. 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.").
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'
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.