FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, 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/

January 7, 2015

In the Court of Appeals of Georgia

A14A1644. USMAN v. THE STATE.

MILLER, Judge.

Jordan Usman entered into a non-negotiated plea of guilty to two counts of

child molestation (OCGA § 16-6-4 (a) (1)). Usman appeals from his conviction,

contending that the trial court erred in failing to properly advise him of his right to

withdraw his plea. For the reasons that follow, we affirm. 

A defendant has no unqualified right to file a direct appeal from

a judgment of conviction and sentence entered on a guilty plea, and thus,

the merits of [Usman’s] appeal can be addressed only if the issues he

seeks to raise can be resolved by facts appearing in the record, including

the transcript of the guilty plea hearing.

(Citation omitted.) Denova v. State, 268 Ga. App. 16 (601 SE2d 400) (2004).

Usman entered his guilty plea on November 5, 2012. The record shows, and

Usman concedes, that he entered a non-negotiated plea. The Superior Court of Glynn
County held a sentencing hearing on January 16, 2013, and the trial court’s judgment

was entered that same day. Two days later, the trial court called Usman to court to

inform him of his right to appeal his conviction and sentence, which it had failed to

do at the previous hearing. The trial court also informed Usman that he had the right

to an appellate attorney if he was indigent. The trial court, however, did not inform

Usman that he could move to withdraw his guilty plea. Usman was represented by

counsel at his plea and sentencing hearings, including at the hearing when the trial

court advised Usman of his right to appeal his conviction. 

Usman filed a notice of appeal on February 12, 2013. Thereafter, on June 21,

2013, Usman filed a motion in superior court to withdraw his guilty plea, which the

trial court denied because Usman filed his motion outside the term of court. 

On appeal, Usman contends that the trial court misled him that the appropriate

procedure for challenging his convictions was to file a direct appeal rather than a

motion to withdraw his guilty plea within the term of court, and he relied on this

advice to his detriment because his motion to withdraw was denied since it was filed

out of term. We disagree.

OCGA § 17-7-93 (b) provides, in relevant part, that, at any time

before judgment is pronounced, the accused person may withdraw the

plea of guilty and plead not guilty. A defendant does not have an

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absolute statutory right, under said Code section, to withdraw a guilty

plea, after the trial court’s oral announcement of the sentence. 

(Citations and punctuation omitted.) Stevens v. State, 202 Ga. App. 473, 474 (3) (414

SE2d 702) (1992). Moreover, the trial court is only obligated to personally informthe

defendant of the right to withdraw his guilty plea before judgment is pronounced if

the trial court intends to reject a negotiated plea agreement. Storch v. State, 276 Ga.

App. 789, 791-792 (2) (625 SE2d 70) (2005). 

In this case, Usman’s plea was non-negotiated, and as a result, the trial court

was not obligated to inform him of his right to withdraw the plea before sentencing.

James v. State, 326 Ga. App. 231, 232 (756 SE2d 312) (2014). Usman nevertheless

argues that the trial court affirmatively misled him into believing that he could raise

an ineffective assistance claim on appeal without first moving to withdraw his guilty

plea or developing the record to address the issue. See Lamb v. State, 282 Ga. App.

756, 758 (639 SE2d 641) (2006) (where a defendant has not filed a motion to

withdraw his guilty plea raising ineffective assistance as an issue, and the only

evidence in the record isthe transcript of his guilty plea hearing, the defendant cannot

raise ineffective assistance of counsel on direct appeal of his conviction). There is no

merit to this argument because the trial court unambiguously advised Usman of his

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right to appeal his conviction, and it was not obligated to inform him that this right

was qualified in light of his guilty plea. See Barlow v. State, 282 Ga. 232, 233 (647

SE2d 46) (2007). 

Likewise, there is no merit to Usman’s claim that the trial court advised him

that he had to affirmatively request post-conviction counsel. While the trial court

advised Usman that the court would appoint appellate counsel “upon appropriate

request to do so,” the trial court’s statement, in context, indicated that appellate

counsel would be appointed if Usman wished to appeal and showed that he was

indigent. See Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996)

(holding that the trial courtmust appoint counselfor indigent defendants who indicate

a desire to appeal). Since the record does notshow that the trial court committed error

in advising Usman of his appellate rights, we affirm. 

Judgment affirmed. Doyle, P. J., and Dillard, J., concur.

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