*1 by Sprouse authorized in were not Thus, the sentences circumstance. In non-death in that case is correct. law, and this Court’s penalty felony presentence the failure to hold a cases, however, we conclude that imposed by
hearing a does not mean that sentence example, in the not allow.”21For “that law does court is one imposed upon present Williams were case, all sentences Bentley Moreover, Willis,22the under the law. sentences allowed imposed appellant court that sentence the trial contended report prepared by considering presentence him did without probation so alleged appellant information contained officer there was “no con- this Court noted that favorable to him.23 statutory imposed requirement not be sentence stitutional or report prepared considered,” is we held that until after such required, requirement report “[e]ven such could be if were Bentley supports thus here.”24 the defendant as was done may objection to a trial waive an the conclusions that (a) presentence hearing § 17-10-2 hold a under court’s failure to that a without the benefit is not void when it is entered sentence hearing. such a imposed foregoing reasons,
For we conclude that a sentence penalty case not rendered void a trial in a non-death court presentence under OCGA to conduct a the court’s failure Accordingly, although sentencing § this case 17-10-2. wrong petition rea denied correct his sentence for Williams’s correctly petition son, denied. was nevertheless Judgment concur. All the Justices affirmed. 15, 1999.
Decided November pro Williams, se. Gibson Attorney, appellee. McDade, District
David v. SHAFFER. S99A0934. BYRD (523 SE2d Presiding Justice. Fletcher, appeals grant to Michael relief state findings supports court’s
John Shaffer. Because record waived his constitu- state failed establish 21 Crumbley, 23 See 42-8-34. OCGA 24 Id. pleading guilty, we conclude that the made and affirm.
According guilty plea transcript, prepared to the the state was through Gary show of Shaffer’s half-brother that Shaf- got displayed pipe up bar, drunk bomb, fer the threatened blow Gary pipe
bar,
and that
then removed the
to his
bomb
house
*2
police. During
guilty plea hearing,
the
called
the
the trial court did
rights
waiving by pleading
inform Shaffer of
that would
not
the
he
be
including
guilty,
presumption
innocence,
the
the
of
to remain
against
silent, and to confront the sole witness
him. Towards the end
guilty plea hearing,
Shaffer contended that he did not believe
although
point,
the bomb was real and that
he had the bomb at one
it
possession
night.
was his half-brother
had
who
of it that
recognized
admitting guilt,
court
was
Shaffer
not
but without
inquiring
years’ imprisonment
further, sentenced Shaffer to four
carrying deadly weapon.
terroristic threats and twelve months for
hearing
1. After a
Shaffer
testified
the state
presented
plea transcript
the
and the
of Shaffer’s
shown that
counsel, the habeas
found
that the state
not
had
by pleading guilty,
presump-
Shaffer understood that
he
the
testify.
tion of innocence and the
to remain silent or to
A review
findings regarding
the
of
record shows that the habeas court’s
Shaf-
understanding
consequences
guilty plea
fer’s
of these
not
are
go
erroneous. Shaffer testified that his
did
counsel
over
rights
typical practice
the waiver of
and his counsel testified that his
go
rights being
conflicting
the
was
over
waived. Because there was
regarding
might
evidence
about
what Shaffer’s counsel
have told Shaffer
consequences
the
court,
the as the
fact,
finder of
which it did.1
was
authorized
resolve
in the
in
conflicts
manner
2
2. In
Bowers Moore this
held
Court
that the state
bears
proceeding
establishing
burden in a habeas
intelligently
made. If the state fails to
through
transcript
guilty plea
make this
either
guilty plea
evidence,
or extrinsic
then bewill
considered
change
invalid.3
Nash
State4
does
in
burden established
proceedings
Bowers. Nash is
to hold-
because the
ing
specifically
in that case was
limited
cases
recidivism
where
seeking
prior guilty plea
punishment.5
state is
to use a
to enhance
Caldwell,
Williams v.
HUNSTEIN,Justice, concurring.
proof
majority’s holding
fully
that the burden
in the
I concur
proceedings
State, in
warden, i.e.,
direct
remains with
to establish
knowingly
petitioner’s
that the habeas
holding
is not
under Boykin,
and
constitutionally
policy position
represents
mandated,
the better
it
application
of our
Nash
than an
893) (1999)
proceedings.
to direct habeas
placed
recognized
should be
that the burden
In Nash we
rendered
that a
to establish
on a recidivism defendant
being
cur-
the sentence
conviction,
used to enhance
an earlier
*3
follow the
to a failure to
conviction,
unconstitutional due
rent
was
Raley,
Looking
Boykin procedures.
SC
Habeas se habeas ers the sole avenue available to have the and constitutional- ity guilty pleas of their reviewed another Thus, court. while proceedings may appeal, habeas be deemed “collateral” to the direct proceedings these are not as “collateral” as the sentence enhance- proceedings Raley, supra. ment the Louisiana at issue in Nash and Indeed, Parke v. (La. Supreme Shelton, Court in State v. 621 S2d 769 1993), heavily explicitly on which we relied in declined to shift any post-conviction proceedings the burden of from the state offender”) (“multiple other than leaving sentence enhancement cases, constitutionality guilty plea it to the state to of a in a corpus proceeding. Id., 621 S2d at n. 23. Accordingly, given proving the State’s burden of the constitution- ality appeal, only just of a in the direct I conclude it is equitable ality carry proving that the State the burden of the constitution- proceeding. in the direct habeas I would not beyond application extend the in Nash its to collateral sen- proceedings penalty tence enhancement in non-death cases. dissenting. CARLEY, Justice, my opinion, majority erroneously holds in a corpus proceeding, establishing the State has the burden of
petitioner’s guilty party made. The State is not this, other, or A case. petition for habeas relief civil, institutes a criminal, not a action. “It separate is a collateral attack that is and distinct from review, direct only prisoner occurs after a has failed to obtain relief direct appeal. [a] [Cit.]” It is not an extension direct .... Turpin, Gibson v. Accord- ingly, petitioner I believe that proceeding, Shaffer, as the in this civil *4 properly proving guilty bears the plea ultimate burden of that his constitutionally was not regarding valid. In addition to its conclusion proof, majority the burden of the holds that the habeas court was conflicting authorized to resolve the evidence “in the manner in contrary, which it did.” To the however, I believe that the habeas premised its decision both a erroneous of faulty legal analysis. fact my opinion and a Therefore, it is that this judgment Court should vacate the of the habeas court and remand case, the and I dissent to the affirmance of the order relief to Shaffer. (89 Boykin 1709, Alabama, 23 LE2d v. 395 U. S. SC In1. 274) (1969), required Supreme Court of the United States the showing a on record that make an affirmative State constitutionally Lee, 244 v. Ga. 837-838 valid. Jones is corpus Boykin case, a However, SE2d a criminal conviction sentence but a direct from Boykin guilty plea. a held under This Court nevertheless may rely upon pre- respondent progeny, in a its showing sumption, guilty (2) (211 of must make an affirmative but Greenway, constitutionally valid. v. 233 Ga. is Roberts 764) (1975); Connell, 227 Purvis v. Ga. 764 Supreme however, United 1992, Court of the Boykin apply proceedings, does not in collateral States held as habeas actions. invalidity very Boykin’s presumption import into this To ignore pre- improperly . . . another different context would sumption deeply jurisprudence: “presump- in our rooted regularity” judgments, final even that attaches to tion rights. waiver of when the (II) (B) Raley, 517, SC 121 LE2d 506 U. S. Parke (1) (471 (1996), Moore, In Bowers v. Greenway, supra, decision as we cited this Court’s Roberts respondent authority placing upon the effect of the burden of but we failed to consider the Knight Raley, supra. opinion Sikes, in Parke v. See also recent in Nash v. In our decision 893) (1999), applied however, Parke we State, purpose guilty pleas are used for the attacks on collateral why logical reason recidivism There is no sentence enhancement. respect greater should have a burden with his trial petitioner prior in his civil habeas action than a conceptual attacking differ- material or his conviction. There is no Raley, See Parke v. ence these two collateral attacks. between (B). (II) is not Therefore, under Parke 29-30 judgments applicable in non-death attacks final collateral penalty cases, is on the criminal defendant and the burden by knowingly preponderance was not that his evidence voluntarily with is consistent entered. This petitions principle for a writ of habeas that one who well-settled by pre- proving crime after conviction of a “has ponderance judgment is invalid attacked of the evidence constitutionally-protected prisoner’s were violated because *5 obtaining judgment. Gibby, [Cits.]” Gaither v. Ga. (1) (475 logical import Thus, of Nash tois Georgia proper pre-Boykin procedure, whereby peti-
return corpus proceeding overcoming tioner in a habeas bears the burden of presumption the entered on his (165 of the of the conviction and sentence Sharpe guilty plea. Smith, See (1969); Parker, Dutton v. Roberts, Purvis, To the extent that other mis- or authority requiring respondent as construes constitutionality those decisions are erro- having implicitly and, Nash, neous overruled should be now explicitly. overruled This habeas action constitutes Shaffer’s collat- non-capital eral attack on his convictions and sentences for offenses. authority controlling Therefore, in accordance with the presumption validity, Shaffer has the burden to rebut the and to prove by preponderance guilty pleas knowingly of the evidence he did not enter his voluntarily. petitioner presents Where, here, 2. as some initial infirmity respondent only evidence that a exists, constitutional producing has the burden of evidence a waiver of three constitu- rights, tional which are the defendant’s “right by jury, privilege against [the] to trial self incrimina- right [the] [respon- tion, and to confront his If the accusers. dent] anything ‘perfect’ transcript, introduces less than a judge weigh . . . the then must the evidence submitted [respondent] the defendant and to determine whether prior guilty plea . . . defendant’s was informed and volun- tary, and made with an articulated waiver the three Boykin rights.” (Emphasis supplied.) Nash v. A review of the part, upon habeas court’s based, order shows that it was proof at least properly the absence of right that Shaffer jury. specifically to trial The habeas court found by plead- Warden “did not show that that, the Petitioner understood ing remaining entering plea, not or silent and not one jury obtains trial.” The demonstrates, however, record that this guilty plea transcript erroneous. The shows that the affirmatively expressed Shaffer, trial court informed he his , understanding, you following: plead guilty you “If will be jury you plead guilty impose afforded sentence but if this Court will upon you provided by certainly as law.” This constitutes waiving understood he was his constitu- by jury. to trial theory legal The habeas court also relied the erroneous Superior Rule 33.8 is a basis for Court that Uniform judge requires to inform Rule relief. presumption guilty, by pleading he waives the testify, here because it is and the innocence deprivations to review constitutional is available “habeas (2) (325 only. 370) (1985). Newsome, . . .” Valenzuela Hardin, Black v. See also requirements 33.8 of USCR Thus, the of whether the cognizable . . .” Parker in a habeas action. “were violated is not *6 191) (1985). Compare Abernathy, State v. Ga. 468) (1995) (non-habeas Evans, 332, 333 mandatory). provisions it is are Because of USCR 33 of a waiver of non- court relied on the absence clear that the habeas theory legal upon Boykin rights, an erroneous its order based County Davis, 268 and, therefore, cannot be affirmed. Gwinnett by guilty plea transcript waiver does not show against privilege of con- self-incrimination or the Shaffer of his questionnaire testimony with frontation, and a defense counsel’s constitute extrinsic evidence each initialed Shaffer Compare Knight remaining Boykin rights. valid waiver of those two (2); supra supra Moore, Fur- at 895 Sikes, at 816-817 Bowers v. v. thermore, transcript indicates that the jury only trial, also tb a but Shaffer of his court not informed meaning consequences aof that he understood ascertained voluntarily, plea freely entering he was and that King Compare any promises or threats. without the influence of State, affirming majority ignores grant Shaffer, the habeas of habeas relief theory, legal instead and relies of fact and court’s erroneous attorney testimony only upon did not inform that his trial Shaffer’s acknowledging rights. that Shaffer’s his Even him of the waiver of grant to authorize the be sufficient would otherwise judgment “be nevertheless should in this case relief, the habeas vacated and ‘ “considered for this issue to be the case remanded say theory cannot what we of law because under a correct relying judge [habeas] if he had have concluded would (Cit.)” (Cit.)’ County [Cit.]” theory. at Davis, Gwinnett correct properly places Shaf- If 655. correctly which was adduced all of the evidence fer, considers provisions rely 33.8, we cannot of USCR does not say here. Accord- that it did reach the same conclusion that it would affirming grant judgment ingly, relief. of habeas I dissent to the joins dissent. Hines to state that Justice I am authorized 15, 1999. Decided November Baker, General, Westmoreland, Attorney Thurbert E. Beth Mary General, Smith, K. Deputy Attorney Paula Senior Assistant Attorney General, appellant. Chamblee, Pereira,
Marcus C. D. Stephen for appellee.
S99A1263. BROOKS v. THE STATE.
Hunstein, Justice. L.
Christina Brooks was found guilty malice murder and pos- session of a firearm felony commission of a arising out of shooting death of Dalio Wilson. She from the appeals denial of her motion for a new trial.1
1. In two enumerations appellant contends her Sixth Amend- ment right of confrontation and OCGA 24-3-52 were violated § admission into evidence of a videotaped brother, confession her agree Eric Brooks. We and reverse. transcript reveals after Eric Brooks testify refused to
appellant’s the court allowed the jury to view the taped state- ment he made to the police. OCGA 24-3-52 con- provides “[t]he *7 fession of one joint offender or conspirator made after the enterprise is ended shall be only against admissible himself.” This statute “was designed protect a defendant from the hearsay confession of a co- who does conspirator testify at trial. State, [Cits.]” Livingston 205, Furthermore, the introduc- tion of a non-testifying joint offender’s confession to show the defend- ant’s involvement in the crimes violates the defendant’s constitu- confrontation. Id. The State’s arguments about trustworthiness of Brooks’s statement and the necessity for its admission are unavailing. See Hanifa Given that OCGA 24-3-52 applies “joint offenders,” we find no merit in the State’s argument statute was inapplicable because neither sibling charged with conspir- 1,1996. 17, The crimes occurred on September December Brooks was indicted 1997 in County murder, charges murder, felony assault, Chatham aggravated of malice possession three counts of felony. of a firearm the commission of a She was found possession charge 21, May malice murder and one day 1998 and that same imprisonment years sentenced to life for the murder and five to serve consecutive on the possession charge. 4, 1998, Brooks’ motion for new filed June was denied March appeal 1999. A notice of May was filed March 1999. was docketed orally argued September 13,1999. and was