dissenting.

“[T]he defendant in any criminal proceeding . . . may appeal from any sentence, judgment, decision, or decree of the court. ...” OCGA § 5-6-33. By creating a statutory right to appeal (Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990)), Georgia has made its appellate courts “ ‘an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant, [cit.]. . . .’” Evitts v. Lucey, 469 U. S. 387, 393 (105 SC 830, 83 LE2d 821) (1985). In the last six months, this Court has eroded the statutory right of appeal of the criminal defendant who pleads guilty. In Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995), this Court determined that Morrow had no right to file an appeal; in Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996), this Court dismissed Caine’s appeal in which he claimed that the counsel representing him when he pled guilty did not render effective assistance of counsel; today* this Court eviscerates the right of appeal by ruling that a guilty plea criminal defendant seeking an out-of-time appeal alleging ineffective assistance of counsel must divulge the arguments he would present on appeal as a condition precedent to being permitted to file the appeal. No other class of criminal defendant is required to make such a showing in order to obtain the statutory right of appeal, and this Court’s invention of such a new procedural hurdle is a curtailment of the guilty plea criminal defendant’s constitutionally-guaranteed rights of due process and equal protection. Evitts v. Lucey, supra, 469 U. S. at 393. “ ‘Once the State has created a right of appeal, it must “offer such defendant a fair opportunity to obtain an adjudication on the merits of his appeal. [Cit.]” The majority has denied [Smith] such a “fair opportunity” by reducing his right of appeal to a “meaningless ritual” by precluding him from effectively asserting his appellate arguments. [Cit.]’ Morrow v. State, [supra,] (Sears, J., dissenting).” Caine v. State, supra at 424 (Benham, C. J., dissenting).

[*689] When faced with the appeal of a guilty plea defendant, appellate review is limited to resolving the questions raised by applying the law to the facts appearing in the record. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). See also Caine v. State, supra (Benham, C. J., dissenting). This holding has been used to curtail severely the issues a guilty plea defendant may raise in an appeal. See, e.g., Morrow v. State, supra. What is especially ironic in the majority’s treatment of the appeal before us is the fact that reference to the record and transcript of Smith’s guilty plea shows that Smith was never fully informed that he had the right to appeal his plea of guilty — he was not informed of the availability of appointed counsel to pursue an appeal or the time frame within which such appellate right must be exercised. Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Kilgo v. State, 198 Ga. App. 762 (3) (403 SE2d 216) (1991); Mobley v. State, 162 Ga. App. 23 (1) (288 SE2d 702) (1982). See Holloway v. Hopper, 233 Ga. 615 (212 SE2d 795) (1975). See also Lane v. State, 263 Ga. 517 (436 SE2d 9) (1993). The failure to inform a defendant of his appellate rights constitutes ineffective assistance of counsel, entitling the defendant to an out-of-time appeal in order to exercise the right of appeal denied him by his attorney’s shortcoming. Bell v. Hopper, supra, 237 Ga. 810. The sole question presented by this appeal is whether the trial court erred in denying appellant an out-of-time appeal, thereby effectively denying him “a fair opportunity to obtain an adjudication on the merits of his appeal.” Evitts v. Lucey, supra, 469 U. S. at 405. Inasmuch as trial counsel is primarily responsible for informing the client of his appellate rights (see Kreps v. Gray, 234 Ga. 745, 748 (218 SE2d 1) (1975) (Nichols, C. J., concurring specially)), a remand of this case to the trial court is appropriate, in order that a hearing might be held at which time appellant’s former counsel could be questioned concerning what he told appellant about the full panoply of appellate rights. Evans v. State, 198 Ga. App. 537 (402 SE2d 131) (1991). If counsel appropriately informed appellant of his right to appeal and the failure to appeal was due to appellant’s inaction, appellant is not entitled to an out-of-time appeal. Henry v. Hopper, 235 Ga. 196 (219 SE2d 119) (1975). If, however, the failure to appeal was due to counsel’s inaction in either failing to inform appellant of his appellate rights or in failing to pursue an appeal at appellant’s request, appellant is entitled to an appeal. See Evans v. State, supra, 198 Ga. App. at 538. These issues must be decided before appellant’s right to an out-of-time appeal can be determined. If appellant was not fully informed of his right of appeal, he is entitled to exercise that right out of time. It is only when appellant exercises the right of appeal to which he may be entitled that the reviewing court should examine whether the questions raised can be resolved by the appellate record. This Court does a disservice to constitutional rights[*690] and the appeal process by short-circuiting it when the appellant is a defendant who pled guilty.

Because I cannot condone the affirmance of the trial court’s action when the guilty plea record and transcript clearly reflect that appellant was not fully informed of his right of appeal, I must dissent.

I am authorized to state that Presiding Justice Fletcher and Justice Sears join this dissent.