Childs v. State
311 Ga. App. 891
| Ga. Ct. App. | 2011Background
- Childs pled guilty on May 19, 2009 to two counts of aggravated battery and one count each of battery, driving while license suspended, and driving without insurance, across three indictments/incidents; he was sentenced that day.
- On February 11, 2011, Childs filed pro se motions for out-of-time appeals in each case; the trial court denied.
- The Court of Appeals reviews the trial court's denial of an out-of-time appeal for abuse of discretion.
- Childs argues the guilty pleas were not knowingly and voluntarily entered because of Boykin/Fifth Amendment waiver issues.
- The record includes signed plea forms and a plea hearing in which Childs acknowledged waiving rights by pleading guilty; the State contends the rights were adequately conveyed and the plea valid.
- The court also considers whether the plea transcripts show a sufficient factual basis under USCR 33.9 and whether an evidentiary hearing on the out-of-time appeal was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the plea knowingly and voluntarily entered regarding the right against self-incrimination? | Childs argues Boykin rights were not properly conveyed. | State asserts adequate information and waiver of rights. | Yes; the record shows adequate advisement and waiver of self-incrimination rights. |
| Did the plea transcript show a sufficient factual basis under USCR 33.9? | Childs contends the transcript fails to affirmatively show the factual basis. | State argues the court asked about facts and the prosecutor provided a basis; transcript need not recite every fact. | Yes; the court's questions and the prosecutor's basis satisfied USCR 33.9. |
| Was the trial court required to hold an evidentiary hearing on out-of-time appeal? | Childs contends a hearing was needed to support out-of-time appeal. | State contends no hearing was required since the record shows no meritorious issues. | No; no direct appeal entitlement and no mandatory hearing under the record. |
Key Cases Cited
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (necessity of informing defendant of three Boykin rights)
- Beckworth v. State, 281 Ga. 41 (Ga. 2006) (adequate conveyance of rights may suffice even if not in precise language)
- Tyner v. State, 289 Ga. 592 (Ga. 2011) (clarifies Boykin requirements and sufficiency of waiver language)
- Hawes v. State, 281 Ga. 822 (Ga. 2007) (magic words not required for plea voluntariness if rights understood)
- Rogers v. State, 286 Ga. 55 (Ga. 2009) (right to remain silent can substitute for right against self-incrimination if at trial)
- Wilson v. Kemp, 2011 WL 197876 (Ga. 2011) (informing of right to remain silent may satisfy Boykin-like requirements)
- Adams v. State, 285 Ga. 744 (Ga. 2009) (plea knowing/voluntary where rights properly informed)
- Upperman v. State, 288 Ga. 447 (Ga. 2011) (no evidentiary hearing required where record shows no merit to issues)
- Belcher v. State, 304 Ga.App. 645 (Ga. App. 2010) (discussion of post-plea procedures and records)