Usher v. State
Usher v. State
Opinion of the Court
In September 2003, Johnny O'Neal Usher pleaded guilty and was convicted of murder, rape, and burglary. He did not appeal his convictions at that time. Fourteen years later, he filed a motion for leave to take an out-of-time appeal, but the court below denied his motion. Usher appeals the denial of his motion, and we affirm.
When a defendant seeks leave to pursue an out-of-time appeal from a conviction entered upon a guilty plea, he must show that the claims of error that he would raise in the out-of-time appeal would be resolved favorably to him based upon the existing record. See Mims v. State,
Usher's primary complaint with respect to his indictment appears to be that the count charging him with murder in the commission of an aggravated assault was not detailed enough, but his "failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment." Dasher v. State,
Usher has failed to show that any of the claims of error that he would assert in an out-of-time appeal would be resolved favorably to him based upon the existing record. Accordingly, he has not shown that he is entitled to an out-of-time appeal, and the court below did not err when it denied his motion for an out-of-time appeal. The judgment below is affirmed.
Judgment affirmed.
All the Justices concur.
The reasons for this settled rule are discussed at length in Mims. See
The prosecuting attorney represented that the evidence would show that the 81-year-old victim hired Usher to complete some yard work for her, that-after the victim's husband left the home-Usher entered the home and assaulted and raped the victim, that the victim called 911 and was able to describe what had happened, that the victim died as a result of the blunt force trauma she sustained in the assault, that DNA evidence showed that semen left on the victim's body was Usher's, and that the victim's husband later identified both Usher and the car Usher had been driving on the day he raped and assaulted the victim.
Reference
- Full Case Name
- USHER v. The STATE.
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- 3 cases
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- Published