Owens v. State

¶1Terrance Owens, pro se, appeals the denial of his motion for an out-of-time appeal following his guilty plea. We affirm, for the reasons that follow.

¶2On April 27, 2011, Owens entered a guilty plea in the Superior Court of Fulton County to trafficking in methamphetamine, possession of marijuana with intent to distribute, possession of methamphetamine within 1,000 feet of a school, possession of marijuana within 1,000 feet of a school, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On November 3, 2011, Owens filed a motion in arrest of judgment, arguing that the indictment failed to allege venue. The trial court denied the motion on November 29, 2011. On January 25, 2012, Owens filed a notice of appeal, but this Court dismissed the appeal as untimely.1 Thereafter, on April 13, 2012, Owens filed a motion for leave to file an out-of-time appeal, which the trial court denied.

¶3Owens appeals, contending that the trial court lacked jurisdiction to accept his guilty plea because the indictment failed to aver venue,2 that the trial court failed to “merge [ ] the counts during the sentencing phase,”3 and that his plea was not knowingly and voluntarily entered because the indictment was fatally defective.

¶4As the Supreme Court of Georgia has recently explained,

[t]he purpose of an out-of-time appeal in a criminal case is to address the constitutional concerns that arise when a defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. So, a motion for an out-of-time appeal must be premised upon an allegation of a deprivation of the right to direct appeal due to trial counsel’s ineffective assistance.4

¶5Because Owens’s “motion for out-of-time appeal did not allege that his failure to file a timely appeal of his conviction was due to any ineffective assistance of counsel, . . . the motion was therefore correctly denied.”5

¶6Judgment affirmed.