Burch v. State
293 Ga. 816
| Ga. | 2013Background
- In 1995 Levon Burch pleaded guilty and was convicted of murder, armed robbery, and aggravated assault.
- More than 16 years later Burch filed a motion for leave to bring an out-of-time direct appeal from that conviction.
- The trial court denied the motion, finding the issues Burch sought to raise could not be resolved solely by reference to the existing record.
- Burch asserted his plea was not voluntary and intelligent, arguing the trial judge failed to personally advise him of Boykin rights during the plea colloquy.
- The record contained a signed acknowledgment-and-waiver-of-rights form and a contemporaneous order finding Burch understood and voluntarily waived his Boykin rights.
- The trial court denied relief; Burch appealed and the Georgia Supreme Court affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burch’s guilty plea was voluntary and intelligent (Boykin advisement) | Burch: trial judge did not personally advise him of Boykin rights, so plea may be involuntary | State: the signed waiver form and trial court’s contemporaneous order show advisement and voluntary waiver | Court: Record establishes advisement/waiver; claim cannot be resolved without extra-record evidence, so not appropriate for out-of-time direct appeal |
| Whether Burch was entitled to an evidentiary hearing or pro se filing excuse to create a record for out-of-time appeal | Burch: pro se status justified an evidentiary hearing to develop record | State: pro se filing does not change rule that claims must be resolvable from record for a direct appeal after guilty plea | Court: Pro se status does not require an evidentiary hearing; issues not resolvable from record are for habeas, not out-of-time direct appeal |
Key Cases Cited
- Henderson v. State, 293 Ga. 6 (2013) (out-of-time appeal available only if direct appeal would have been available; for guilty pleas appealable only when resolved from the record)
- Brown v. State, 290 Ga. 50 (2011) (waiver-of-rights form can serve as evidence that Boykin rights were adequately explained)
- Lewis v. State, 293 Ga. 544 (2013) (pro se defendant must still show issues on appeal from a guilty plea can be resolved solely by reference to the record)
- Boykin v. Alabama, 395 U.S. 238 (1969) (defendant must knowingly, voluntarily, and intelligently waive rights including jury trial, confrontation, and against self-incrimination)