Chism v. State

338 Ga.App. 463

789 S.E.2d 814

Chism

v.The State.

A16A0907

Court of Appeals of Georgia.

August 3, 2016

Deandre M. Chism, for Appellant.

Emily Kathleen Richardson, Brian Keith Fortner, David McDade, Douglasville, for Appellee.

Barnes, Presiding Judge.

Deandre Chism plead guilty to armed robbery, kidnapping, and other offenses in 2005, and was sentenced to life plus ten years. After repeated unsuccessful attempts to obtain a copy of his plea transcript and other documents, in 2015 Chism filed a pro se motion for an out-of-time appeal. The trial court denied the motion, and for the reasons that follow, we affirm.

In his motion for an out-of-time appeal, Chism argued that on November 11, 2005, three days after he pled guilty and was sentenced, he asked his court-appointed lawyer to file either a motion to withdraw his plea or an appeal. Attached to his motion is a letter from Chism's appointed trial counsel to the county public defender's office relaying Chism's requests, and noting that counsel had taken no action. In July 2006, Chism made his first request to the clerk of court for a copy of his plea transcript and other documents pertaining to his case, to which the clerk responded by saying a representative could come to the court and make copies of the record for 25 cents per page. Alternatively, if Chism requested specific documents, the clerk could prepare a bill of costs to be paid before copies would be made and transmitted to him, or he could seek a copy of his file from his lawyer. The clerk also directed Chism to contact the court reporter to obtain a copy of the hearing transcript.

In August 2006, Chism sent a request for a copy of his file and the plea hearing under the Open Records Act, and on the request is written: “Motion denied. Defendant was represented by counsel who may have pre-trial documents.... [T]he court reporter will supply the plea transcript upon request and remuneration. No appeal has been filed, and time for appeal has expired. This 16 August 2006. [Signature,] Judge.”

Chism filed additional requests for a copy of the record and the plea hearing transcript, including pauper's affidavits, in September 2006 and in May 2007. The trial court clerk responded to the May 2007 request as she did to the July 2006 request. In March 2008, Chism filed a “Petition—Application for Case Record and Transcripts of Proceedings” and a “Request to Proceed in Forma Pauperis,” explaining that he sought the records because he wanted to file habeas corpus petitions and could not make the needed prima facie showing without them. The trial court wrote “Denied, this 27 March 2008” on the petition, and on April 10, 2008, Chism filed a notice of appeal from that denial. The trial court clerk sent Chism a bill of costs for $254 on April 25, 2008, and the trial court dismissed the appeal in August 2008 because Chism had not paid the costs.

Chism continued trying to obtain a copy of the record and plea transcript in this case, filing pleadings in November 2008, January 2009, September 2009, May 2010, and April 2013 The trial court issued numerous orders in response, noting in its order of November 2013 that it had already denied Chism's request five times. Finally, in February 2015, Chism filed a motion for an out-of-time appeal, arguing that neither the trial court nor his trial counsel told him he could appeal, that he told his trial counsel he wanted to appeal or move to withdraw his plea, and that his trial counsel was ineffective in ten specific areas. He also argued that his kidnapping conviction could not be sustained because the element of asportation was absent, per Garza v. State , 284 Ga. 696, 670 S.E.2d 73 (2008).

The trial court denied Chism's motion because first, Garza was decided more than three years after Chism's plea and he had no direct appeal pending, and therefore the requirement that the State show more than “slight movement” to establish the essential element of asportation in a kidnapping charge did not apply. Further, the facts proffered by the State at Chism's plea were that Chism held a shotgun to the head of his taxi driver victim and forced him to drive into a deserted area before robbing him, which satisfied even the more stringent requirements of Garza. Second, the trial court denied Chism's motion because his claims of ineffective assistance could not be resolved by reviewing the current record and transcript; thus, if he were granted a direct appeal, “there would be no record upon which to base the...