FINAL COPY
S18A0274. USHER v. THE STATE.
BLACKWELL, Justice.
In September 2003, Johnny O’Neal Usher pleaded guilty and was
convicted of murder, rape, and burglary. He did not appeal his convictions at
that time. Fourteen years later, he filed a motion for leave to take an out-of-time
appeal, but the court below denied his motion. Usher appeals the denial of his
motion, and we affirm.
When a defendant seeks leave to pursue an out-of-time appeal from a
conviction entered upon a guilty plea, he must show that the claims of error that
he would raise in the out-of-time appeal would be resolved favorably to him
based upon the existing record. See Mims v. State,
) (2016).1 Usher has failed to make this showing. In his motion, Usher
said that, if he were permitted to take an out-of-time appeal, he would assert that
1
The reasons for this settled rule are discussed at length in Mims. See
-
581 (1).
his indictment was defective, that the court below accepted his plea without an
adequate factual basis, that his plea was not knowing and voluntary, and that his
plea counsel should have objected to the acceptance of his plea. The existing
record, however, fails to sustain any of these claims of error.
Usher’s primary complaint with respect to his indictment appears to be
that the count charging him with murder in the commission of an aggravated
assault was not detailed enough, but his “failure to file a timely special demurrer
seeking additional information constitutes a waiver of the right to be tried on a
perfect indictment.” Dasher v. State,
)
(2009). Nor has Usher shown that the indictment would not withstand a general
demurrer. About the factual basis for his plea, the record shows that the
prosecuting attorney stated an adequate factual basis at the plea hearing.2 As for
the knowing and voluntary nature of his plea, Usher contends that he was
“mentally unstable” when he pleaded and “did not know what was going on
2
The prosecuting attorney represented that the evidence would show that the 81-yearold victim hired Usher to complete some yard work for her, that — after the victim’s husband
left the home — Usher entered the home and assaulted and raped the victim, that the victim
called 911 and was able to describe what had happened, that the victim died as a result of the
blunt force trauma she sustained in the assault, that DNA evidence showed that semen left
on the victim’s body was Usher’s, and that the victim’s husband later identified both Usher
and the car Usher had been driving on the day he raped and assaulted the victim.
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around him,” but the existing record fails to demonstrate any mental instability
or lack of understanding that would call into question the voluntariness of his
plea, and the transcript of the plea hearing shows that Usher indicated that he
understood what he was charged with as well as each of the rights he was
waiving by pleading guilty. Usher also claims that the plea court failed to advise
him of his privilege against self-incrimination, but the record shows that Usher
confirmed at the plea hearing that he understood his right not to “say, sign, or
do anything that will tend to show that [he is] guilty of these charges.” See
Mims,
(2) (a), n.5 (holding that such language adequately advises
a defendant of his privilege against self-incrimination). And the record does not
establish that Usher was denied the effective assistance of counsel in connection
with his plea.
Usher has failed to show that any of the claims of error that he would
assert in an out-of-time appeal would be resolved favorably to him based upon
the existing record. Accordingly, he has not shown that he is entitled to an out-
of-time appeal, and the court below did not err when it denied his motion for an
out-of-time appeal. The judgment below is affirmed.
Judgment affirmed. All the Justices concur.
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Decided May 7, 2018.
Murder. Newton Superior Court. Before Judge Benton.
Johnny O. Usher, pro se.
Layla H. Zon, District Attorney, Shaun J. Foley, Assistant District
Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
for appellee.
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