Opinion
A95A1387
DECIDED DECEMBER 4, 1995.
Guilty plea; motion to withdraw. Chatham Superior Court. Before Judge Karpf.
Thomas B. Atkinson, pro se.
Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.
On December 20, 1993, defendant Thomas Atkinson pled guilty to robbery by sudden snatching, theft by taking a motor vehicle, driving without a license and obstruction. On December 28, 1994, defendant moved to withdraw his guilty plea, contending that his trial counsel was ineffective in failing to inform defendant that he had a right to appeal.. Defendant filed the present appeal following the trial court's denial of his motion to withdraw his plea. Concluding that the trial court did not err, we affirm.
Although defendant's motion was styled as a motion to withdraw a guilty plea, in essence, the motion amounts to a request for an out-of-time appeal. "An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. Hunter v. State, 260 Ga. 762 ( 399 S.E.2d 921); Henderson v. State, 265 Ga. 317 (2) ( 454 S.E.2d 458) (1995). However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 253 Ga. 169 ( 316 S.E.2d 757) 91984)." Morrow v. State, 266 Ga. 3 ( 463 S.E.2d 472) (1995).
In this case, defendant contends that his guilty plea was not voluntary because his trial counsel defrauded him and coerced him into entering the plea. Such allegations cannot be verified or disproved by the facts appearing in the record. Consequently, defendant "had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, [and therefore] he was not entitled to be informed of a non-existent 'right' to appeal." Morrow, supra at 4. Defendant's only available remedy in this case is through a habeas corpus proceeding. Id. This is true even if we did not treat defendant's motion to withdraw his guilty plea as a motion for an out-of-time appeal. See Vaughn v. State, 248 Ga. 325 ( 283 S.E.2d 263) (1981); Jarrett v. State, 217 Ga. App. 627, 628-629 (1) ( 458 S.E.2d 414) (1995).
Judgment affirmed. Beasley, C.J., and Ruffin, J., concur.