Malverty v. State

FINAL COPY




                    S17A1468. MALVERTY v. THE STATE.

      HUNSTEIN, Justice.

      Brian P. Malverty appeals the denial of his motion for an out-of-time

appeal; for the reasons set forth below, we affirm.

      In September 1985, a Fulton County Grand Jury returned an indictment

charging Malverty with murder, felony murder, and related offenses in

connection with the deaths of Charles E. West and Rickey L. Sims. In

December 1986, Malverty pled guilty to two counts of felony murder and was

sentenced to concurrent life terms. In January 2016, Malverty filed a motion for

an out-of-time appeal of his guilty plea, but the motion was denied; Malverty

filed a timely notice of appeal to this Court.

      1. Malverty first asserts that he is entitled to an out-of-time appeal

because, he says, the September 1985 indictment is defective. This argument

is without merit.
      “‘When a defendant pleads guilty and then seeks an out-of-time appeal

from that plea, he must make the threshold showing that he would have been

entitled to file a timely direct appeal from the plea[.]’” (Citations omitted.)

Moore v. State, 

 (

) (2009). A defendant is

entitled to such an appeal only “if the issue on appeal can be resolved by

reference to facts on the record.” Grantham v. State, 

 (

) (1997). “‘The ability to decide the appeal based on the existing

record thus becomes the deciding factor in determining the availability of an

out-of-time appeal when the defendant has pled guilty.’” (Citation omitted.)

Stephens v. State, 

 (

) (2012). “If the issues that

a defendant raises in a motion for out-of-time appeal can be resolved against

him based upon the existing record, there is no error in denying the motion.”

Marion v. State, 

 (

) (2010).

      According to Malverty, his indictment was defective in five different

ways. Four of those allegations — namely that the indictment fails to display

the term in which the indictment was returned, fails to display the name of the

individual who received the true bill, fails to display the date on which the

indictment was received in open court, and fails to show the correct “clerk’s

                                      2
number” — were waived by Malverty when he pled guilty. See Smith v.

Hardrick, 

 (

) (1995) (recognizing the well-

established principle that ‘“(a) plea of guilty . . . waives all defenses other than

that the indictment charges no crime”’ (Citations and emphasis omitted.)).

Malverty’s remaining argument — that the indictment fails to include language

charging him as a party to a crime — is without merit. “The State is not

required to indicate in the indictment that it is charging a person as a party to the

crime.” Glenn v. State, 

 (

) (2004). See also

Brinson v. State, 

 (1) (

) (1992). Accordingly,

Malverty’s “challenge to the indictment can be resolved against him on the

existing record, and he is not entitled to a direct appeal on the issue.” Marion,

.

      2.     Since 1989, Malverty has filed numerous motions in the Fulton

County Superior Court seeking the state-funded production of documents,

records, and transcripts relating to his December 1986 guilty-plea conviction.

In April 1998, the trial court entered an order denying the various motions.

Undeterred, Malverty has continued to file similar motions and, in this appeal,

claims that the trial court has violated OCGA § 15-6-21 by failing to rule on his

                                         3
motions. Pretermitting whether such a claim may be properly raised or

considered in the context of this appeal, the only judicial remedy for the

violation of this statute is mandamus. See Brooks v. State, 

(

) (1995). Accordingly, Malverty is not entitled to relief on this

claim.

      Judgment affirmed. All the Justices concur.




                                      4
                         Decided February 19, 2018.

      Murder. Fulton Superior Court. Before Judge Shoob.

      Brian P. Malverty, pro se.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Michael V.

Snow, Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, for appellee.




                                      5