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Waiving The Right To Appeal With The Entry Of A Plea

Posted by Ben Sessions | Jun 27, 2015 | 0 Comments

In connection with the negotiation of a plea in a criminal case in Georgia, it is not uncommon for prosecutors to seek the waiver of a defendant's right to appeal from the conviction. For a waiver of the right to appeal to be enforceable, the requirements are very simple: there must be a signed waiver of the right to appeal showing that the defendant understood the rights he/she was waiving, or the trial court must establish on the record that the defendant was informed of the right to appeal and agreed to waive the rights. That being said, waiver of the right to appeal based upon counsel rendering ineffective assistance of counsel cannot be done.

Moreover, it is well-established that a defendant can waive his right to seek post-conviction relief as part of a negotiated plea agreement, so long as the waiver is voluntary, knowing, and intelligent. See Rush v. State, 276 Ga. 541, 542, 579 S.E.2d 726 (2003); Bryan v. State, 296 Ga.App. 341, 342, 674 S.E.2d 390 (2009). The fact that a waiver of the right to appeal is voluntary, knowing, and intelligent may be shown either by (1) a signed waiver form indicating that the defendant understood the rights he was waiving or (2) detailed questioning of the defendant by the trial court revealing that the defendant was informed of and agreed to waive his rights. See Bryan, supra, 296 Ga.App. at 342, 674 S.E.2d 390. When the record shows that the defendant understood the rights he was waiving, he will be held to his bargain. See id.

Here, in connection with his negotiated guilty plea, Arrington completed a form acknowledging and waiving his trial rights. Arrington also signed the post-conviction waiver form, indicating that he had discussed his case with trial counsel; he agreed not to file a motion to withdraw his guilty plea after the sentence was entered; and he waived post-conviction relief. Arrington testified at the guilty plea hearing that he understood the rights he was waiving by pleading guilty, and that he had reviewed the post-conviction waiver form with his trial counsel. A review of the record therefore shows that Arrington voluntarily, knowingly, and intelligently chose to challenge his conviction after he was fully informed of his trial rights and his right to an appeal. “Having received the benefit of the [plea] agreement, [Arrington] cannot now ignore its terms and seek relief via an appeal to this Court.” Rush, supra, 276 Ga. at 542, 579 S.E.2d 726.

Moreover, although the waiver did not prohibit Arrington from filing a claim that trial counsel rendered ineffective assistance, his claim on appeal that trial counsel did not advise him of his right to appeal is without merit because he testified at the guilty plea hearing that he had reviewed his rights with his attorney and was satisfied with counsel's representation. Where, as here, an examination of the record reveals no merit to the claimed errors, the trial court does not err in denying a request for an out-of-time appeal. Adams v. State, 285 Ga. 744(1), 683 S.E.2d 586 (2009). Accordingly, we affirm.

Arrington v. State, No. A15A0722, 2015 WL 3619353, at *2 (Ga. Ct. App. June 11, 2015)

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Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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