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Docket Number

S01A0597.

Attorney(S)

LeRoy K. Baker, Jr., pro se. J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for Appellee.

Judges

Robert Benham

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Smart Summary

Baker v. The State, S01A0597 (Supreme Court of Georgia, April 30, 2001)

Factual and Procedural Background

Appellant Leroy K. Baker, Jr. was indicted for malice murder and armed robbery for the killing of a convenience store clerk in June 1993. After the jury had been selected in 1995 in the State's death penalty case, appellant entered guilty pleas to malice murder and armed robbery. Pursuant to a written plea agreement, the State agreed not to seek the death penalty; appellant agreed to two consecutive life sentences, waived parole consideration until he had served 30 years, and signed a waiver of his right to appeal "any issue that might have already arisen or that might arise during the trial of the issue of sentence in this case."

Approximately five years after the guilty pleas, appellant filed a pro se motion for an out-of-time appeal, asserting that trial counsel was ineffective for (1) failing to inform him of his right to appeal, (2) failing to file a notice of appeal, and (3) failing to inform him that his guilty plea waived his right to seek federal habeas corpus relief. He also contended the trial court had erred in failing to inform him of his right to appeal. The trial court denied the motion for an out-of-time appeal, finding appellant's assertions without merit and concluding the record demonstrated appellant knew of and had waived his right to appeal by signing the plea agreement. Appellant timely appealed the denial to the Supreme Court of Georgia.

Additional proceedings referenced in the opinion: the trial court was Muscogee Superior Court, before Judge Smith; appellant acted pro se in filing the out-of-time appeal motion and in filing the notice of appeal from the denial.

Legal Issues Presented

Whether an out-of-time appeal is available where appellant alleges ineffective assistance of counsel for failing to pursue a direct appeal following guilty pleas and a plea agreement that included an appeal waiver.
Whether the trial court erred in denying an evidentiary hearing on the motion for an out-of-time appeal when the record contained the plea agreement and related waiver language.
Whether appellant's remaining enumerations (including claims regarding suppression, grand jury composition, and alleged failures by counsel to attack the indictment and grand jury proceedings) could be the basis for an out-of-time appeal following guilty pleas or were waived for failure to raise them in the trial court.

Arguments of the Parties

Appellant's Arguments

Trial counsel was ineffective for failing to tell appellant of his right to appeal and for failing to file a notice of appeal.
Trial counsel failed to inform appellant that entering guilty pleas constituted a waiver of his right to seek a federal writ of habeas corpus.
The trial court erred by failing to inform appellant of his right to appeal the guilty pleas and the sentences entered.
Additional contentions included that the trial court erred in denying a motion to suppress, that the grand jury was not a cross-section of the community, and that counsel was ineffective in failing to attack the indictment, commitment hearing, and grand jury evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lane v. State, 263 Ga. 517 (2) (436 S.E.2d 9) (1993)	An out-of-time appeal is available when a direct appeal was not taken due to ineffective assistance of counsel.	The court cited Lane to state the governing principle that an out-of-time appeal may be granted on a showing of ineffective assistance; it then evaluated whether appellant met that standard in light of the plea agreement and waiver.
Taylor v. State, 266 Ga. 129 (464 S.E.2d 385) (1996)	Supports deference to trial court factual findings unless clearly erroneous.	The court relied on Taylor to affirm that, because the trial court's factual findings were not clearly erroneous, denial of the motion for an out-of-time appeal was proper.
Eisele v. State, 238 Ga. App. 289 (519 S.E.2d 9) (1999)	An evidentiary hearing on an out-of-time appeal motion is necessary when the record cannot determine who was responsible for the failure to file a timely direct appeal.	The court cited Eisele to explain the circumstances that would require a hearing; it concluded a hearing was unnecessary here because the record showed appellant had waived his right to appeal.
Grantham v. State, 267 Ga. 635 (481 S.E.2d 219) (1997)	Certain issues cannot be the subject of an out-of-time appeal from a guilty plea because they cannot be decided on the existing record.	The court applied Grantham to conclude that several of appellant's remaining enumerations either could not be decided on the existing record and thus were not appropriate for an out-of-time appeal, or were otherwise waived.

Court's Reasoning and Analysis

The court began from the established principle that an out-of-time appeal may be granted when a direct appeal was not taken due to ineffective assistance of counsel (Lane v. State). It examined the trial court's determination that appellant's ineffective-assistance claims were without merit because the record — specifically appellant's signed written plea agreement — demonstrated that appellant knew of and affirmatively waived his right to appeal his sentence. The Supreme Court of Georgia concluded the trial court's factual findings on that point were not clearly erroneous and therefore the denial of relief was proper, citing Taylor v. State for the standard of review concerning factual findings.

Regarding the request for an evidentiary hearing, the court explained that such a hearing is required only when the record is insufficient to determine who was responsible for the failure to file a timely appeal (citing Eisele v. State). Because the plea record showed appellant had waived his right to appeal, the trial court could resolve the motion on the record and an evidentiary hearing was unnecessary.

Finally, the court addressed appellant's remaining enumerations, stating that some issues cannot be the subject of an out-of-time appeal following a guilty plea because they cannot be resolved on the existing record (Grantham v. State), and other issues were waived for failure to raise them in the trial court. The court therefore concluded none of those remaining contentions warranted relief.

Holding and Implications

Holding: The Supreme Court of Georgia affirmed the trial court's denial of appellant's motion for an out-of-time appeal. The court's mandate was: Judgment affirmed.

Implications: The direct effect is that appellant's convictions and the trial court's denial of the out-of-time appeal remain in place, and no relief was granted on the ineffective-assistance or other enumerated claims. The opinion resolves the matter against appellant on the record before the court and does not announce or rely upon any new legal rule beyond applying existing precedent as described above.

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BAKER v. THE STATE

BENHAM, Chief Justice.

After the jury was selected to try the State's death penalty case against appellant Leroy K. Baker, Jr., in 1995, appellant entered guilty pleas to malice murder and armed robbery, and received two consecutive sentences of life imprisonment. Appellant and the State entered in to a written agreement whereby, in exchange for the guilty pleas, the State agreed not to seek the death penalty against appellant, and appellant consented to the consecutive life sentences, waived parole consideration until he had served 30 years, and waived his right to appeal "any issue that might have already arisen or that might arise during the trial of the issue of sentence in this case." Five years later, appellant filed a pro se motion for out-of-time appeal in which he asserted his trial counsel had been ineffective for failing to tell him of his right to appeal, in failing to file a notice of appeal, and in failing to inform appellant that his entry of a guilty plea constituted a waiver of his right to seek a writ of habeas corpus in federal court. Appellant also contended that the trial court had erred in failing to inform appellant of his right to appeal the guilty pleas and the sentences entered thereon. In a written order, the trial court denied the motion for out-of-time appeal, finding without merit appellant's assertion that counsel had been ineffective because counsel and the trial court had purportedly not informed appellant of his right to appeal his sentence. The trial court determined that it was clear from the record that appellant knew of his right to appeal his sentence and had affirmatively waived that right by signing the plea agreement in which he agreed to give up the right to appeal "any issue that might have already arisen or that might arise during trial on the issue of sentence in this case."

Appellant was indicted for the malice murder and armed robbery of Juanita Renee Ash, a convenience store clerk, who was killed in June 1993 when a customer, identified as appellant, broke a beer bottle and severed her carotid artery as she attempted to clean up the spilled beer. Her assailant then broke the cash register and ran off with the cash drawer. Witnesses captured appellant and held him for police. In August 2000, appellant filed a motion for out-of-time appeal, which motion the trial court denied in October 2000. Appellant, acting pro se, timely filed a notice of appeal from the order denying the motion for out-of-time appeal. The appeal was submitted for decision on the briefs.

1. An out-of-time appeal is available when a direct appeal was not taken due to ineffective assistance of counsel. Lane v. State, 263 Ga. 517 (2) ( 436 S.E.2d 9) (1993). In the case at bar, the trial court determined that appellant's assertions of ineffective assistance of counsel were without merit in light of appellant's signed plea agreement in which he waived his appeal rights. Since the trial court's factual findings are not clearly erroneous, the trial court did not err when it denied appellant's motion to file an out-of-time appeal. See Taylor v. State, 266 Ga. 129 ( 464 S.E.2d 385) (1996).

2. Appellant finds fault in the trial court's failure to conduct an evidentiary hearing on the motion for out-of-time appeal. Such a hearing is necessary when the trial court is unable to determine from the record who was responsible for the failure to file a timely direct appeal. See, e.g., Eisele v. State, 238 Ga. App. 289 ( 519 S.E.2d 9) (1999). In the case at bar, the trial court denied the motion for out-of-time appeal after determining from the record of appellant's guilty plea that appellant had waived his right to appeal. Accordingly, no hearing was necessary.

3. Appellant's remaining enumerations either cannot be the subject of an out-of-time appeal from a guilty plea because the issues cannot be decided on the existing record (see Grantham v. State, 267 Ga. 635 ( 481 S.E.2d 219) (1997)), or were waived because they were not raised in the trial court.

Appellant also contends the trial court erred in denying a motion to suppress and in denying a motion contending the grand jury was not a cross-section of the community, and that trial counsel was ineffective in failing to attack the indictment, the commitment hearing, and the grand jury evidence.

Judgment affirmed. All the Justices concur.

DECIDED APRIL 30, 2001 RECONSIDERATION DENIED JUNE 4, 2001.

BAKER v. STATE