FOURTH D IVISION DOYLE , P. J., MILLER and DIL LA RD, JJ. N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ September 4, 201 4



## In the Court of Appeals of Georgia
A14A0837 . MARTIN v. THE STATE. M ILLE R , Judge. Marv lyn Martin, who pled gui lty to f irst degree homicid e by vehicle (OCGA § 40-6-391 (a

)) and poss ession of

an open container (OCGA § 40-6-253 (b) (1) (B)), appeals pro se fr

om the trial cour t’s order denying his mot

ion for out- of-time appeal. Martin contends that his plea was invalid bec ause the indictment was de fective a nd thathis trial c ounsel wasineffec tive for failing to challenge

the defec tive indict

ment and for failing to inform

him of his right to withdraw h is guilty plea. F or the re asons th at f ol lo w, we aff

irm. We review a trial c ourt’s d enial of a motion for out-of

-tim e direct appeal fo r an abuse o f discretio n. Belcher v. State , 304 Ga. A

pp. 645, 64 6 (1) (697 S E2d 300) (2010).2

The record

shows that Mart

in was indi cted for homic ide by v ehicle fo r causing the v ictim’s death while driving under the influence of alcohol, driving under th e influence (DUI p er se and DUI le ss safe), and other o ffenses, including pos session of an open container. The indictment specifically allegedthat Mart

in com mitte d the offenses in Clayton Cou nty. On July 9, 2012, Martin entered a non-negotiated plea to homic ide by v ehi cle and po ssession of an open container. Martin was sentenced to 15 yea rs with 10 to serve on t

he homicide convi ction , and h is fine for the open containe r violati on was sus pended. Thereafter, on July 2 6, 201 2, Martin fi led a pro se motion to withdra

w his guilty plea, a rguing that he should have been sentenced as a First Offender. Following
ahearing, the trial

court deni ed Martin ’s requ est for F irst Off ender tre atment and deniedhis moti on t o wit hdr aw hi s gu ilt y plea. On August 28, 2012, Martin filed another motion to withdraw his guilty plea, ra ising the same claims. The trial c ourtdenied Martin’s second motion on res judicat a grounds. The trial cour t also den ied Martin ’s subsequ ent motion fo r sentence re duction
. Martin then filed a motion for out-of-time appeal, arguing thatthe indictment failed to allege venue in Cl ayton C ounty a nd his trial

counsel w as ineffe ctive for allowing him to enter a guilty p lea based

on the purported fatal indictment. The trial3

courtdenied Mar

tin’s m otion for an out-of- time appeal, finding tha t he failed to show that his right to a n appeal was frustrated by ineffective a ssistan ce of couns el. On appeal, Martin ar

gues that th e indictment was de fective f or failing to charge
venue and trial counsel wa s ineffec tive for no t challeng ing the defectiv e indictm ent and infailing to advise him

of his right

to withdra

w his guilty

plea. H is claim s have
no mer it. A defendant who has pled guilty to a crime may obtain an out-ofti me appeal onl

y if th e issues he

seeks to raise ca

n be resolved b y fac ts appearing on the rec ord and if

his failure to seek

a tim ely a

ppeal wa s the result of ineffec tive assist ance of

counsel. Where the record shows that the attacks on

the guilty plea that a defendant seeks to raise in anout-ofti me appeal are wit

hout merit, tri al counsel cannot have been inef fective in failing to pursue such an appeal, and a trial courtthus does not err in denying an out-of- time appeal. (Citation omitted.) Belcher , supra, 304 Ga. A pp. at 646 (1); see also Olguin v. State , 296 Ga. App. 2 08, 209 (674 SE2d 89) (2009) (a defendant does not have an unqualified right to a direct appeal following a guilty plea and the merits of an appeal
can be addres sed only

if the issu es sought to be raise d can be resolved by the record). (a) To the extent Martin seeks to ap peal his gui lty ple a on the gro und of ineffec tive assistanc e of counse l, the only evidence in the rec ord is the tr anscript o f his guilty p lea hear

ing. Alth ough Martin

filed tw o moti ons to w ithdraw h is guilty4

plea, neither

of h is moti ons alleged

ineffec tive assist ance of c ounsel. “ A defendant who seeks to appeal a guilty plea on the ground of ineffective assistance of counsel must develop those issues in a post-plea hearing and may not file a direct appeal if the only ev idence in t

he recor d is the tra

nscript of the guilty

plea hear

ing.” (C it atio n omit ted.) Denova v. State , 268 Ga. App. 16, 18 (4) (601 SE2d 400) (2004). Con seq uen tly, Martin has not established that he was entitled to a direct appeal based
on a claim that his trial counsel was ineffective. See Olguin , supra, 296 Ga. App. at 209; Denova , supra, 268 Ga. A pp. at 18 (4). Since the term of court in which Ma

rtin entered his guilty

plea has expired, Martin’ s rem edy to p ursue an in effective assistance of counsel

claim is to file a

petition fo r writ

of habeas corpus. See Walden
v. State , 291 Ga. 260, 262 (2) (728 SE2d 186) (2012) (a

defendant

failing to raise an ineffec tive assistanc e claim in apost-plea

hearing is not entitle d to a direc t appeal a nd is left to r aise such a claim in habeas corpus pro ceedings ). (b) Unlike his ineffective assistance claim , Martin ’s clai m that the indictm

ent
was d e fecti ve can be dec ided on th e recor d. The r ecord , howev er, bel ies Ma rtin ’s claim that the ind

ictment failed to charge v enue as to the homic ide by v ehicle co unt. The indi ctment clearl

y char ges that the

crim es occurr

ed in Clay

ton County
.5

Add iti ona lly, by pleading gui lty, Martin waived the defense that the indictment failed to charge venue. See Wright v . Hall , 281 Ga. 318, 3 19 (1) (638 SE2d 270) (2 006). Since an exam

ination of t

he recor d reveals no mer

it to Marti n’s claimed errors, the denial of his reques t f or an out-of-time appeal was proper. See Adams v. State , 285 Ga. 744 ( 1) (683 SE2d 5 86) (2 009) . Theref ore, we a ffirm th e tria l cou rt’s ruling. Judgment a

ffirmed. Doyle, P. J. , and Dill ard, J., concur .