Surry v. State

340 Ga.App. 8

795 S.E.2d 336

SURRY

v.The STATE.

A16A1726

Court of Appeals of Georgia.

December 20, 2016

Robert L. Surry, for Appellant.

Joshua Bradley Smith, Rebecca Ashley Wright, for Appellee.

Per Curiam.

Robert Latron Surry filed a pro se appeal from the trial court's order denying his motion for out-of-time appeal. For the reasons that follow, we affirm.

In January 2009, Surry pled guilty to theft by receiving, fleeing and attempting to elude a police officer, and possession of cocaine.¹ As part of his negotiated plea, Surry waived his rights to seek a sentence modification and to appeal his conviction. He also initialed and signed a detailed form acknowledging the same. In its order accepting the guilty plea, the trial court stated that it had reviewed the form, questioned Surry about its contents, and concluded that Surry was freely and voluntarily entering his plea.

Shortly after entering his plea, Surry filed a motion to withdraw the plea on the ground that it was not made freely and voluntarily. Following a hearing, the trial court denied the motion and Surry did not appeal from that order.

In September 2010, Surry filed a pro se motion for out-of-time appeal. Surry's sole argument was that his appointed counsel was negligent in failing to either file a timely notice of appeal or to inform him of the trial court's ruling. The trial court denied the motion, and this appeal followed.²

On appeal, Surry raises numerous arguments that he did not raise before the trial court, and he asserts that appointed counsel was constitutionally deficient for failure to file an appeal.

"We review a trial court's denial of a motion for an out-of-time direct appeal for an abuse of discretion." (Citation omitted.) Arrington v. State , 332 Ga.App. 481, 773 S.E.2d 430 (2015).

When a conviction is entered based on a plea of guilty, a direct appeal is available only if the issue on appeal can be resolved by reference to facts on the record. Thus, if the issues that the defendant seeks to appeal cannot be resolved from the record, he had no right to file a direct appeal, and therefore he [has] no right to file an out-of-time appeal. If the issues a defendant wishes to raise in an out-of-time appeal can be resolved against him on the face of the record, so that even a timely appeal would have been unsuccessful, then plea counsel's failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result.

(Citations, punctuation, and emphasis omitted.) Rhodes v. State , 296 Ga. 418, 420 (2), 768 S.E.2d 445 (2015). Surry bears the burden of showing that he is entitled to an out-of-time appeal. Moore v. State , 285 Ga. 855, 856 (1), 684 S.E.2d 605 (2009).

A review of the limited record in this case shows that Surry is not entitled to file an out-of-time appeal. First, the only argument Surry raised in his motion in the trial court was that counsel was negligent by failing to file a direct appeal from the denial of his motion to withdraw his plea. On appeal, he raises various arguments challenging his underlying conviction and sentence. We will not consider arguments that were not presented to the trial court and that are raised for the first time on appeal. See Hammond v. Paul , 249 Ga. 241 (1), 290 S.E.2d 54 (1982). Moreover, the waiver-of-appeal provision in Surry's negotiated plea bars his claims.³ See Bryan v. State , 296 Ga.App. 341, 342–343, 674 S.E.2d 390 (2009).

[I]t is well established that a defendant can waive his right to seek post conviction relief as part of a negotiated plea agreement, so long as the waiver is voluntary, knowing, and intelligent. The fact that a waiver of the right to appeal is voluntary, knowing, and intelligent may be shown either by (1) a signed waiver form indicating that the defendant understood the rights he was waiving or (2) detailed questioning of the defendant by the trial court revealing that the defendant was informed of and agreed to waive his rights. When the record shows that the defendant understood the rights he was waiving, he will be held to his bargain.

(Citations omitted.) Arrington , supra, 332 Ga.App. at 483, 773 S.E.2d 430. Here, the record includes a signed waiver form establishing that Surry knowingly and voluntarily waived his right to appeal. Accordingly, Surry has not shown a right to an out-of-time appeal with respect to these claims.

As to any claim regarding the validity of his plea—and, by extension, the validity of the waiver provision—the record includes a detailed rights form showing that Surry was advised of his rights and voluntarily waived them. Although the record does not include a transcript from the plea colloquy or the ...