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Final Copy 287 Ga. 134

S10A0163. MARION v. THE STATE. Nahmias, Justice. John Marion appeals from the trial court's denial of his motion for out-oftime appeal. For the reasons that follow, we affirm. In December 1996, Marion was indicted for murder, and the State sought the death penalty. On May 31, 2002, in exchange for the State agreeing not to seek the death penalty, Marion pleaded guilty to murder and armed robbery, received consecutive life sentences, and agreed, among other things, "to waive and give up any right he may have to appeal the terms of this agreement." On May 1, 2009, Marion filed a motion for out-of-time appeal and a motion for an evidentiary hearing. The trial court denied both motions, ruling that, because Marion had waived his appellate rights as part of his plea agreement, he had to successfully attack the validity of that waiver in an appropriate habeas corpus petition before he could file a motion for out-of-time appeal. 1. Marion asserts that the malice murder count of his indictment failed to allege an act with a specific intent to kill, that it was therefore void, that his plea

of guilty did not waive the defense that the indictment charged no crime, that he was therefore entitled to raise this issue in an out-of-time appeal, and that the trial court erred in denying his motion. See Smith v. Hardrick, 266 Ga. 54, 56 (464 SE2d 198) (1995) (noting that a guilty plea waives all defenses other than that the indictment fails to charge a crime). To resolve this issue, we need not decide whether the trial court erred in ruling that Marion could not seek an out-of-time appeal until he prevailed on a claim to set aside the appeal waiver in a habeas corpus action. Compare Rush v. State, 276 Ga. 541, 541-542 (579 SE2d 726) (2003) (holding that a waiver of the right to appeal is valid if entered knowingly, voluntarily, and intelligently and deciding on timely direct appeal that the waiver at issue was valid). If the issues that a defendant raises in a motion for out-of-time appeal can be resolved against him based upon the existing record, there is no error in denying the motion. Brown v. State, 280 Ga. 658, 659 (631 SE2d 687) (2006). Here, the indictment alleged that Marion "did unlawfully and with malice aforethought cause the death of another human being . . . by shooting [him] in the head and chest with a handgun, thereby causing him a mortal wound, from which he died." These allegations are sufficient to allege the crime of malice murder. See 2

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