☢ test - Í
before, during or subsequent to trial , and if, in fact, [Huzzie] was not competent at the time of his trial but is now competent to stand trial, a new trial should be granted.’ Smalls v. State, 153 Ga.App. 254, 256, 265 S.E.2d 83 (1980). The issue is whether at the time of the trial Huzzie was capable of understanding the nature and object of the proceedings against him, whether he rightly comprehended his own condition in reference to such proceedings, and whether he was capable of assisting his attorney in the defense of the charges against him. Crawford v. State, 240 Ga. 321, 326, 240 S.E.2d 824 (1977).” If first raised after trial, “‘the burden first falls upon the state to show there is sufficient evidence to make a meaningful determination of competency at the time of trial. If the court rules that a determination of [defendant’s] competency at the time of his trial is not presently possible, then a new trial must be granted. If the court decides such a determination is possible, the issue of competency to stand trial must be tried and the [defendant] shall have the burden to show incompetency by a preponderance of the evidence,’” quoting Baker at 193. “ Although there are obvious difficulties connected with conducting a retrospective competency hearing, the initial determination as to whether there is sufficient data upon which to make a meaningful determination rests with the trial court subject to review by this Court for abuse of discretion. See Dowdy v. State, 169 Ga.App. 14, 15, 311 S.E.2d 184 (1983); Smalls, 153 Ga.App. at 257, 265 S.E.2d 83. Neither the length of time between the trial and the retrospective hearing nor the opinion of experts is necessarily determinative on this issue. The observations of the Fifth Circuit Court of Appeals in Wheat v. Thigpen, 793 F.2d 621, 630 (5 th Cir., 1986) are instructive: ‘[T]he length of time between the trial and the nunc pro tunc hearing [is] not determinative ... [T]he transcript of the trial itself may provide a solid starting point for reliable reconstruction of the facts . While we recognize that contemporaneous expert medical evidence often provides the most useful evidence for determining whether a meaningful hearing may be held, we have also stated that the recollections of non-experts (including the observations of the trial judge) who had the opportunity to interact with defendant during the relevant period may in some instances provide a sufficient base upon which a fact finder may rest his decision that even a belated determination will be accurate. We have also approved the use of experts to aid the [trial] court in determining whether the court may hold a meaningful retrospective hearing. The test for the [trial] court in determining the question of meaningfulness is whether the quantity and quality of available evidence [were] adequate to arrive at an assessment that could be labeled as more than mere speculation.’ (Citations and punctuation omitted.) See Levitt [ v. State, 170 Ga.App. 32-34, 316 S.E.2d 6 (1984)].” Accord, Tye v. State , 298 Ga. 474, 782 S.E.2d 10 (January 19, 2016) (on motion for new trial, trial court properly made retrospective determination of defendant’s competency to stand trial). Golden v. State, 299 Ga.App. 407, 683 S.E.2d 618 (July 17, 2009). Defendant was not entitled to out-of-time appeal on his guilty plea to child molestation based on: prior affidavit from child victim’s mother, stating her desire not to prosecute; typographical error in Georgia code citation in arrest warrant; variation in allegations between arrest warrant and indictment; or matters not appearing in the record relating to claimed ineffectiveness of counsel, prejudice from withdrawal of counsel; revocation of pre-trial bond, or claims of mental incompetency. Coleman v. State, 278 Ga. 493, 604 S.E.2d 157 (October 12, 2004). “‘A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However ... [a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record ,’” quoting Smith v. State , 266 Ga. 687, 470 S.E.2d 436 (1996). Accord, Lee v. State , 277 Ga.App. 887, 627 S.E.2d 901 (March 3, 2006); Williams v. State , 278 Ga.App. 42, 628 S.E.2d 128 (March 7, 2006); Sanders v. State , 282 Ga.App. 834, 640 S.E.2d 353 (December 11, 2006); Dowling v. State , 294 Ga.App. 413, 669 S.E.2d 198 (October 21, 2008); Merilien v. State , 321 Ga.App. 727, 742 S.E.2d 754 (May 6, 2013); Jones v. State , 332 Ga.App. 506, 773 S.E.2d 463 (June 15, 2015). Jackson v. State, 266 Ga.App. 461, 597 S.E.2d 535 (March 23, 2004). “‘[A] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea.’” “‘[A] direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the [existing] record,’” both quoting Simpson v. State , 263 Ga.App. 467, 588 S.E.2d 291 (2003). Defendant’s contentions regarding ineffective assistance of counsel could not be resolved with reference to the record, and trial court did not err in “failing to permit him to add to that record.” Accord, Lewis v. State , 266 Ga.App. 812, 598 S.E.2d 90 (April 7, 2004); Bowers v. State , 267 Ga.App. 260, 599 S.E.2d 249 (May 5, 2004). C. FIRST OFFENDER See SENTENCING – FIRST OFFENDER, below D. GUILTY PLEA See also subheading VOLUNTARINESS, below . 1. APPEAL FROM
Made with FlippingBook Ebook Creator