BROWN v. THE STATE
S11A0949
Supreme Court of Georgia
NOVEMBER 7, 2011
290 Ga. 50, 718 SE2d 1
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 7, 2011.
Dell Jackson, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Elizabeth A. Baker, Sheila E. Gallow, Assistant District Attorneys, Samuel S. Olens, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
S11A0949. BROWN v. THE STATE. (718 SE2d 1)
HUNSTEIN, Chief Justice.
We granted Michael Anthony Brown a certificate of probable cause to appeal the denial of his petition for a writ of habeas corpus in order to determine whether the record of Brown‘s guilty plea established that he affirmatively waived his constitutional rights under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). For the reasons that follow, we affirm the habeas court‘s denial of Brown‘s petition.
The transcript of the guilty plea hearing establishes that the trial court questioned Brown about the waiver of rights form. Brown answered affirmatively when he was asked by the trial court whether he had reviewed the waiver of rights form with counsel, whether he had answered the questions on the form truthfully and whether he had “understood that process.” The trial court then informed Brown that he could plead not guilty and be tried by a jury, but that the court would impose sentence if Brown pled guilty. There was no colloquy specifically about the other two Boykin rights. Counsel at the hearing merely acknowledged affirmatively that he had advised Brown “of his legal and Constitutional rights” and was satisfied that Brown understood those rights.
Brown‘s conviction was used to enhance a federal sentence that he is currently serving. He filed this petition in June 2008 alleging that his plea was not knowingly and voluntarily entered for several reasons, including that he was not advised of the rights enumerated under Boykin. The habeas court denied the petition based upon the waiver of rights form Brown signed and the colloquy with the trial court at the plea hearing, finding “under the totality of the evidence that [Brown] was cognizant of all his rights against compulsory self-incrimination.”
1. The record shows undisputedly that the trial court did not fully inform Brown of his Boykin rights on the record during the plea hearing. Moreover, the statement by Brown‘s counsel at the hearing in which counsel acknowledged having advised Brown of his “legal and Constitutional rights” was not, in and of itself, sufficient to establish that Brown had been informed of his Boykin rights. See Wilson v. Kemp, 288 Ga. 779, 781 (707 SE2d 336) (2011). However, contrary to Brown‘s contention, the habeas court did not err by relying on the waiver of rights form signed by Brown. Unlike in State v. Hemdani, 282 Ga. 511 (651 SE2d 734) (2007), in which we upheld the grant of habeas relief because the State adduced no transcript of the guilty plea hearing and instead relied solely on a plea form that lacked any affirmative evidence that the defendant‘s attorney had any interaction with him regarding his Boykin rights, there was clear evidence here beyond the mere execution of a waiver form that proved Brown had been apprised of his Boykin rights. Specifically, the guilty plea hearing transcript affirmatively reflects “that the trial court entered into [a] colloquy with [Brown] to ensure that he read and fully understood the [waiver of rights] agreement which he signed,” State v. Hemdani, supra at 512, and the signed “certificate of lawyer” at the conclusion of the waiver of rights form together with Brown‘s own acknowledgment at the guilty plea hearing serve to prove “that trial counsel actually went over the [waiver of rights form] with [his] client [and] ... the information that it contained.” Id. We thus reject Brown‘s argument that the waiver of rights form he signed cannot serve as “some
2. We find no merit in the argument that Brown was not advised of his right against self-incrimination because the waiver of rights form wording, i.e., “[d]o you know and understand that you do not have to say, sign, or do anything that will show or tend to show you are guilty unless you want to,” did not make it clear that it was referring to the right to remain silent at trial. See Adams v. State, 285 Ga. 744 (1), n. 3 (683 SE2d 586) (2009). Nothing in Boykin requires the use of any precisely-defined language or “magic words” during a guilty plea proceeding. Adams v. State, supra at 745 (1). The wording in the waiver of rights form adequately conveyed to Brown in a manner reasonably intelligible to him the core principles of the privilege against compulsory self-incrimination guaranteed by the
3. In his final contention Brown argues that there was an inadequate factual basis for the offense charged.
Whether the trial court establishes on the record a factual basis for the guilty plea does not enter into the determination of the constitutional validity of the plea under Boykin....1 Accordingly, a criminal defendant could not reasonably confuse his right to remain silent at trial, which is waived as the result of a knowing and intelligent decision to plead guilty to a charged offense, with his understanding of that right as it may have been conveyed to him in the separate context of custodial police interrogation pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).
[T]hat requirement is only imposed on the trial court pursuant to Uniform Superior Court Rule (USCR) 33.9. [Cit.] Although USCR 33.9 “applies in a guilty plea hearing, this is a habeas corpus proceeding and that Rule does not apply here because it is not of constitutional magnitude.” [Cit.]
State v. Cooper, 281 Ga. 63, 64 (1) (636 SE2d 493) (2006). Accordingly, Brown was not entitled to a grant of habeas relief based upon the trial court‘s failure to establish on the record a factual basis for Brown‘s guilty plea. See id. It follows that the habeas court did not err by denying Brown‘s petition.
Judgment affirmed. All the Justices concur, except Thompson and Melton, JJ., who dissent.
NAHMIAS, Justice, concurring.
The Court correctly applies our Boykin-based decisions of the past few years to hold that Brown was adequately advised of his “three Boykin rights” and thus that his 1993 guilty plea - which he did not challenge until 2008 -- was freely and voluntarily entered. I would prefer to reach that result, and it would be easier to do so, using the less formalistic analysis that I believe Boykin actually requires and that our older, but never overruled, cases employed. See Tyner v. State, 289 Ga. 592, 595 (4) (714 SE2d 577) (2011) (opinion of Nahmias, J., joined by Carley, P. J.); Goodman v. Davis, 249 Ga. 11, 14 (287 SE2d 26) (1982) (“We decline to adopt a rule which would demand that failure to advise an accused of his right against self-incrimination invalidates a guilty plea in a case where the record reflects that the central
MELTON, Justice, dissenting.
Because the undisputed record in this case does not support a finding that Michael Anthony Brown‘s guilty plea was knowing and voluntary, I must respectfully dissent.
In habeas corpus proceedings such as this, a completed waiver form, standing alone, does not present sufficient evidence that a guilty plea was knowing and voluntary. Sentinel Offender Sucs. v. Harrelson, 286 Ga. 665, 667 (1), n. 2 (690 SE2d 831) (2010) (“To the extent Obi v. State, 230 Ga. App. 476 (1) (496 SE2d 556) (1998) can be read to indicate that a completed form alone is necessarily sufficient to establish the voluntariness of a plea, it is hereby overruled.“). To the contrary, “the record must contain some affirmative evidence that either the trial court or trial counsel entered into a colloquy with defendant and explained all three of his Boykin rights. [Cit.]” (Emphasis supplied.) State v. Hemdani, 282 Ga. 511, 512 (651 SE2d 734) (2007). See also King v. State, 270 Ga. 367 (509 SE2d 32) (1998). Here, the following is undisputed: (1) the trial court did not have a colloquy with Brown regarding two of his three Boykin rights; (2) Brown‘s trial counsel merely stated that he conferred with Brown regarding “his legal and Constitutional rights,” without specifically making reference to Brown‘s Boykin rights; and (3) the only evidence that Brown may have received his Boykin rights is a waiver of rights form which did not specifically set forth the Boykin rights in their entirety.
Boykin recognizes that the waiver of constitutional rights that occurs when a plea of guilty is entered is so great that the proceeding “demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence,” [cit.] and that the record must show that the plea was made voluntarily. [Cits.]
Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92) (2007). The undisputed record in this case does not show the utmost solicitude and care clearly required by our law, as there has been no showing that Brown received a colloquy with the trial court or his counsel regarding all three Boykin rights. In the absence of such a colloquy, Brown‘s guilty plea cannot be found to be knowing and voluntary, and his writ of habeas corpus should have been granted. Hemdani, supra.
I am authorized to state that Justice Thompson joins in this dissent.
DECIDED NOVEMBER 7, 2011.
Michael A. Brown, pro se.
Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.