RAHEEM v. STATE

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Court of Appeals of Georgia.

RAHEEM v. The STATE.

Raheem v. The State.

Raheem v. The State.

Nos. A15A1318, A15A1319, A15A1320.

Decided: September 16, 2015

Gerard Bradley Kleinrock, for Appellant. Robert D. James Jr., Deborah D. Wellborn, for Appellee.

Haneef Abdul Raheem, formerly known as Reno Ray Jones, entered guilty pleas to various criminal offenses in 1981, 1982, and 1985. Approximately thirty years later, Raheem filed a pro se motion for an out-of-time appeal from each of his convictions, and the trial court denied the motion. In three separate appeals,1 Raheem argues that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were invalid and his trial counsel failed to inform him of his right to appeal.2 For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

The facts underlying this appeal are largely undisputed. In 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas. As a result, Raheem contends that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights.

The State moved to dismiss Raheem's motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State's motion, noting that there were no transcripts of any of Raheem's plea hearings.3 Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

After the hearing, at which Raheem and his counsel from the 1982 burglary case testified, the trial court denied Raheem's motion for an out-of-time appeal. The court first found that, in the 1981 and 1982 cases, Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination. But as to the 1985 case, the court found that it was apparent from the record that Raheem's guilty plea was knowing and voluntary. Regardless, the court found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced. Specifically, the court found that there was no evidence that the result of the proceedings would have been different if Raheem had taken his case to trial rather than pleading guilty. This appeal follows.4

We begin by noting that a trial court's denial of an out-of-time appeal is reviewed for an abuse of discretion.5 And it is well established that “[a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea.”6 To the contrary, an appeal will lie from a judgment entered on a guilty plea only if “the issue on appeal can be resolved by facts appearing in the record.”7 But if we determine that the state of the record is such that the criminal defendant had the right to file a direct appeal from his guilty plea, we will then consider whether “the record, nevertheless, shows that those issues must be resolved against him.”8 If the record evidence is such that the issues in question cannot be resolved dispositively against the criminal defendant, we must then consider whether “the defendant's right to appeal was frustrated by the ineffective assistance of counsel.”9 And as with any case involving claims of ineffective assistance of counsel, a criminal defendant must meet the now familiar standard set forth in Strickland v. Washington,10 and “show both that his trial counsel provided deficient performance, and that but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different, which in the present context means that an appeal would have been successful.”11 With these guiding principles in mind, we turn now to Raheem's specific claims of error.

Case Nos. A15A1318 and A15A1319

1. Raheem argues that the trial court erred in denying his motion for an out-of-time appeal from his 1981 and 1982 convictions because he was not informed of certain constitutional rights required under Boykin v. Alabama12 before pleading guilty and because his trial counsel was ineffective for failing to inform him of his limited right to appeal. Like the trial court, we agree with Raheem that, during the plea proceedings in these cases, he was not advised of all of his “Boykin rights.” And for the reasons set forth below, we reverse the trial court's denial of Raheem's motion for an out-of-time appeal from his 1981 and 1982 convictions and remand the case for further proceedings consistent with this opinion.13

It is well established that, to properly form the basis for a judgment of conviction, a guilty plea must be “voluntary, knowing, and intelligent.”14 And under the Supreme Court of the United States's decision in Boykin, a defendant entering a guilty plea must be specifically advised of three federal constitutional rights: “the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers.”15

Here, the record shows that during his 1981 and 1982 plea proceedings, Raheem was advised of only one of the three Boykin rights. And as previously noted, while there is no actual transcript of his plea proceedings in those cases, there were documents, each entitled “transcript,” that reflected Raheem's answers to questions he was asked in open court. Both transcripts, which were nearly identical, reflected that Raheem was informed of his right to a jury trial, but not of his right against compulsory self-incrimination or his right to confront his accusers.16 Thus, as to these two cases, the record shows a valid issue for appeal that cannot be resolved dispositively against Raheem.

Given the foregoing, we will next consider whether Raheem's right to appeal was frustrated by ineffective assistance of counsel.17 In this respect, the Supreme Court of Georgia has explained that “[w]ith regard to an out-of-time appeal, the only relevant effectiveness factor is whether the defendant had a possible ground for appeal about which his lawyer failed to inform him.”18 Indeed, the right to appeal is violated when the appointed lawyer “deliberately forgoes the direct appeal without first obtaining his client's consent [and][s]uch action constitutes ineffectiveness.”19 However, when a convicted party by his own conduct or in concert with his counsel has slept on his rights, he “forfeits his right to appeal.”20

In the case sub judice, Raheem testified that he was not informed of his limited right to appeal his convictions in any of his plea proceedings, and the only other witness at the hearing was his attorney from the 1982 burglary case. In relevant part, Raheem's former counsel testified that, although he had no recollection of Raheem's specific case, it was not his general practice in 1982 to advise clients of their right to appeal during plea discussions. Counsel further explained that, during this “era,” the right to appeal after a guilty plea would not have been discussed because such appeals “never occurred.” Instead, if one of his clients was dissatisfied with a guilty plea, he would advise the client to file a motion to withdraw the plea or seek habeas-corpus relief.

Despite the foregoing, the trial court made no findings with regard to whether Raheem's failure to file a timely appeal from his 1981 or 1982 convictions was his own fault or solely the result of his counsel's failure to advise him of his right to appeal.21 Instead, the court found that Raheem was not prejudiced because there was no evidence that the outcome of the proceedings would have been different if he had proceeded to trial rather than pleading guilty. But as our Supreme Court has explained, a showing of prejudice in this context requires a defendant to show that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.22 And this makes perfect sense because it would be impossible for a trial court to determine the likely outcome of a trial that never occurred or to evaluate evidence that was never presented.

Thus, the trial court erred in denying Raheem's motion for an out-of-time appeal from his 1981 and 1982 convictions “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to [Raheem] himself.”23 Accordingly, we reverse the trial court's denial of Raheem's motion to file an out-of-time appeal as to those convictions, and we remand the case with direction that the court conduct the requisite inquiry and make findings regarding who ultimately bore the responsibility for Raheem's failure to file a timely appeal.24

Case No. A15A1320

2. As to his 1985 armed-robbery conviction, Raheem argues that the trial court erred in denying his motion for an out-of-time appeal because he was not informed of the specific elements of the offense during his plea proceedings. He also asserts that his trial counsel was ineffective for failing to inform him of his appellate rights. We disagree.

Raheem does not maintain that he was unaware that he was pleading guilty to armed robbery, but he argues instead that his plea was involuntary because he was not advised of each element of the offense. In this regard, the Supreme Court of the United States has held that “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”25 But in applying this principle, Georgia courts have consistently held that “the law does not require the trial court to personally inform the accused of the elements of the crime to which he is pleading guilty.”26 Instead, when the defendant has legal representation, “a presumption arises that defense counsel routinely explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.”27

Here, as with Raheem's prior guilty pleas, the record included a written questionnaire, entitled “transcript,” that documented Raheem's answers to various questions regarding his guilty plea. But unlike the prior transcripts, the 1985 transcript shows that Raheem was indeed advised of all three Boykin rights. The transcript also reflects that Raheem confirmed that his attorney had “explained the charges” against him and that they had discussed the case “thoroughly.” Moreover, the trial court in the plea proceeding certified that Raheem made these representations in open court and that he had been fully advised of the charges against him. Under these particular circumstances, we may presume that, in thoroughly explaining the charged offense, Raheem's counsel advised him of the nature of his offense in sufficient detail to render his plea knowing and voluntary.28

Thus, even if Raheem could show that his failure to file a timely appeal was due to his trial counsel's failure to advise him of his appellate rights, “such a failure would not amount to ineffective assistance of counsel because it is apparent from the [record] that the issue[ ] he now seeks to raise in an out-of-time appeal [is] completely without merit.”29 Indeed, an attorney's failure to file an appeal frivolously attacking the indisputable facts proved by the record cannot be deemed ineffectiveness.30 Therefore, the trial court did not err in denying Raheem's motion for an out-of-time appeal as to his 1985 armed-robbery conviction.31

For all of the foregoing reasons, in Case No. A15A1320, we affirm the trial court's denial of Raheem's motion for an out-of-time appeal. But in Case Nos. A15A1318 and A15A1319, we reverse the trial court's denial of Raheem's motion for an out-of-time appeal, and we remand the case with direction that the trial court conduct the requisite inquiries and make the necessary findings regarding who ultimately bore the responsibility for Raheem's failure to file timely appeals in those proceedings.

Judgment affirmed in Case No. A15A1320. Judgment reversed and remanded with direction in Case Nos. A15A1318 and A15A1319.

DILLARD, Judge.

ELLINGTON, P.J., and McFADDEN, J., concur.