SECOND DIVISION

BARNES, P. J.,

BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

August 3, 2016

In the Court of Appeals of Georgia

A16A0907. CHISM v. THE STATE.

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

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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 costsfor $254 on April 25, 2008, and the trial court dismissed the appeal in August

2008 because Chism had not paid the costs. 

Chismcontinued 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 ordersin 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 (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

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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 various

claims of ineffective assistance which he is now seeking to raise.” 

Chism filed a notice of appeal in March 2015, and the clerk sent him a bill of

costs. Chism filed a request to proceed as a pauper in September 2015, and shortly

after that he filed a second motion for an out-of-time appeal. In an order issued in

December 2015, the trial court noted that it could require the State to produce Chism

for a hearing to consider whether the appeal should be dismissed for failure to pay

costs or file a timely affidavit of indigency, but the court would still be required to

address Chism’s request to proceed in forma pauperis. The court continued,

The state’s trial judges face a daily struggle to find balance between

failvly addressing the voluminous filings by prison inmates and ensuring

those with arguable merit are addressed in a timely fashion to ensure that

colorable claims are efficiently heard. This case is but one small

example of that issue. This court finds the best course in this case is to

find the defendant to be indigent based upon his most recent filing and

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directs the Clerk to submit the record from the Notice of Appeal to the

Court of Appeals.

This appeal was then docketed in this court on February 4, 2016. The record

includes the indictment, numerous pre-trial motions filed by Chism’s trial counsel,

including a motion to suppress Chism’s custodial statements and a motion and order

granting funds for a mental health evaluation of Chism, voluminous discovery from

the State, the plea hearing transcript, and all of Chism’s post-conviction filings and

the trial court’s responses thereto. 

We find no error in the trial court’s decision to deny Chism’s motion for an

out-of-time direct appeal from the judgment and sentence entered on his guilty plea,

because his ineffective assistance claims cannot be resolved favorably based on the

current record. While a defendant has an absolute right to a direct appeal from a

conviction and sentence entered after a jury or bench trial, a defendant who enters a

plea of guilty has no right to a direct appeal. Smith v. State, 266 Ga. 687, 687 (470

SE2d 436) (1996). Instead,

[a] direct appeal from a judgment of conviction and sentence entered on

a guilty plea is only available if the issue on appeal can be resolved by

reference to facts on the record. The ability to decide the appeal based

on the existing record thus becomes the deciding factor in determining

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the availability of an out-of-time appeal when the defendant has pled

guilty. Issues regarding the effectiveness of counsel are not reached

unless the requirement that the appeal be resolved by reference to facts

on the record is met.

Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219) (1997).

Here, Chism argued in the trial court that his trial counsel was ineffective for

allowing himto enter a non-negotiated plea despite his mental illness and limitations,

for failing to request a mental competency hearing, for failing to present evidence

about Chism’s history of mental evaluations, for misrepresenting Chism’s juvenile

offender information during the plea hearing, for failing to present evidence of

Chism’smental health status as a mitigating factor in sentencing, for failing to request

a plea of guilty but mentally ill, and other claims related to the blind plea. “These

issues cannot be resolved by reference to the facts contained in the record, and

instead, can be developed only in the context of a post-plea hearing. Therefore, a

motion for an out-of-time appeal is not available to [Chism] on these issues, and

instead, he must pursue counsel’s alleged ineffectiveness in an action for habeas

corpus.” Wetherington v. State, 296 Ga. 451, 455 (769 SE2d 53) (2015).

Judgment affirmed. Boggs and Rickman, JJ., concur.

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