MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFadden, Presiding Judge.
appeal challenges the denial of a defendant's motion for
an out-of-time appeal. Because the trial judge did not abuse
his discretion in denying the motion, we affirm.
Facts and procedural posture.
August 12, 2010, Marquise Robbins, with the assistance of
appointed counsel, pled guilty to attempted murder,
participation in criminal street gang activity, and three
counts of voluntary manslaughter. The trial court imposed a
total sentence of 50 years, with 25 years to be served in
confinement and the remainder to be served on probation. On
November 12, 2010, Robbins filed a motion to modify his
sentence, asking the court to consider a shorter term of
confinement on the ground that he was endangered while in
custody. After a hearing on October 10, 2011, the trial court
denied the motion.
five years later, on March 15, 2017, Robbins filed a pro se
motion for an out-of-time appeal, claiming that his plea
counsel had failed to inform him of his right to appeal from
the denial of his motion to modify his sentence. The trial
court denied the motion without a hearing. Robbins appeals
from that order.
Denial of out-of-time appeal.
sole enumeration of error, Robbins contends that the trial
court erred in denying his motion for an out-of-time appeal
without holding an evidentiary hearing. We disagree.
[O]ut-of-time appeals are designed to address the
constitutional concerns that arise when a criminal defendant
is denied his first appeal of right because the counsel to
which he was constitutionally entitled to assist him in that
appeal was professionally deficient in not advising him to
file a timely appeal and that deficiency caused prejudice.
Shuman v. State, 302 Ga. 221, 221-222 (2) (805
S.E.2d 824) (2012) (citation omitted). See also Rhodes v.
State, 296 Ga. 418, 420 (2) (768 S.E.2d 445) (2015)
(out-of-time appeal is available when a direct appeal was not
taken due to ineffective assistance of counsel). In this
case, Robbins has not shown that he was denied his first
appeal of right due to the ineffectiveness of counsel to
which he was entitled.
indigent defendant is entitled to representation by counsel
only for trial and for the direct appeal from the judgment of
conviction and sentence." Terry v. State, 301
Ga. 776, 778 (1) (804 S.E.2d 71) (2017) (citation and
punctuation omitted). Accord Gibson v. Turpin, 270
Ga. 855, 857 (1) (513 S.E.2d 186) (1999) (indigent defendant
is entitled to appointed counsel only for trial and the first
appeal as a matter of right). After a guilty plea, "a
timely motion to withdraw [the] guilty plea would . . .
trigger[ an indigent defendant's] right to appointed
counsel." Terry, supra (citations and emphasis
omitted). An indigent defendant who timely seeks to withdraw
a guilty plea "has both the right to appeal the denial
of his motion to withdraw [his] guilty plea and the right to
the effective assistance of counsel as guaranteed by the
Sixth Amendment for that appeal." Ringold v.
State, 304 Ga. 875, 878 (823 S.E.2d 14) (2019)
(citations and punctuation omitted). Moreover, it appears
from Ringold, as fully explained in Presiding
Justice Nahmias' concurring opinion, that a defendant who
pleads guilty has a right to file a direct appeal from the
judgment of conviction entered thereon and need not file a
motion to withdraw the plea as a prerequisite to an appeal.
Ringold, supra at 883-886 (3) (concurrence)
(discussing, among other things, the unsoundness of prior
case law holding that a criminal defendant has no unqualified
right to file a direct appeal from a judgment of conviction
entered on a guilty plea).
instant case, however, Robbins did not file a direct appeal
from his guilty plea conviction and he "did not file a
motion to withdraw his guilty plea which . . . would have
triggered the right to appointed counsel [to assist with an
appeal from the denial thereof]." Pierce v.
State, 289 Ga. 893, 894 (1) (717 S.E.2d 202) (2011)
(citation and punctuation omitted). Accord Terry,
supra; Brooks v. State, 301 Ga. 748, 752 (3) (804
S.E.2d 1) (2017). Compare Ringold, supra at 2
(defendant timely moved to withdraw his guilty plea). Rather,
Robbins filed a motion to modify his sentence which gave no
indication that he wanted to withdraw his plea. On the
contrary, he expressly stated in his motion that he intended
to honor the terms of his guilty plea. Under such
circumstances, Robbins was not entitled to appointed counsel
to pursue an appeal from the denial of his motion to modify
his sentence. See Pierce, supra (an indigent
defendant who has filed a motion to vacate a sentence, rather
than a motion to withdraw a guilty plea, is not entitled to
counsel to pursue an appeal from the denial thereof). See
also Rooney v. State, 287 Ga. 1, 7 (4) (690 S.E.2d
804) (2010) (same); Jordan v. State, 242 Ga.App. 408
(4) (530 S.E.2d 42) (2001) (no right to counsel to pursue a
motion to correct a sentence), disapproved in part on other
grounds in Shields v. State, 276 Ga. 669, 671 (3)
(581 S.E.2d 536) (2003).
Robbins was not entitled to appointed counsel to pursue an
appeal from the denial of that motion, it necessarily follows
that there could be no denial of the Sixth Amendment right to
effective assistance of counsel for such an appeal. See
Gibson, supra at 861 (1), citing Wainwright v.
Torna, 455 U.S. 586, 587-588 (102 S.Ct. 1300, 71 L.Ed.2d
475) (1982), for the proposition that "a defendant can
only be deprived of his Sixth Amendment right to effective
assistance of counsel where there is a constitutional right
to counsel[.]" See also Evitts v. Lucey, 469
U.S. 387, 396 (II) (C) n. 7 (105 S.Ct. 830, 83 L.Ed.2d 821)
(1984) ("Of course, the right to effective assistance of
counsel is dependent on the right to counsel itself.")
(citation omitted). Thus, it is clear from the record that
Robbins' motion for an out-of-time appeal, based on an
allegation of ineffective assistance of counsel, was without
denial of a motion for an out-of-time appeal is a matter
within the discretion of the trial court, and the trial
court's decision will not be reversed absent abuse of
such discretion. Based on the above analysis, we hold that
the trial court did not abuse its discretion in denying
[Robbins'] motion for an out-of-time appeal."
Smith v. State, 263 Ga.App. 414, 417 (1) (587 S.E.2d
787) (2003) (citation and punctuation omitted). And contrary
to Robbins' enumerated error, since the record shows that
no right of appeal was frustrated by ineffective assistance
of counsel, the trial court did not err in denying the motion
without a hearing. See Baker v. State, 273 Ga. 842,
843 (2) (545 S.E.2d 879) (2001) (no hearing necessary on
motion for an out-of-time ...