146 Ga. App. 17 | Ga. Ct. App. | 1978
Defendant was indicted in two counts for the offenses of aggravated assault (with intent to rape) in Count 1 and in Count 2 as a recidivist in that he had previously pleaded guilty to the offense of robbery and had been sentenced to serve 10 years in confinement. He was first
1. The evidence here that defendant had used force and intimidation (a deadly weapon) in an assault with intent to rape the victim, who escaped when she was able to obtain possession of the pistol and flee was ample to support the verdict of guilty of aggravated assault (with intent to rape). Further, much of her testimony was also corroborated by other witnesses who were in the vicinity at the time of the alleged incident. The evidence was legally sufficient to convict, although conflicting. The incident occurred in the victim’s apartment after she was allegedly forced at gunpoint to enter the apartment. Three people next door in the adjoining apartment witnessed the defendant and the victim entering. The defendant testified these witnesses were drinking beer and smoking marijuana. He further testified that the victim was an employed prostitute "to turn a trick.” Two of the persons who were in the adjoining apartment testified as witnesses corroborating the testimony of the victim as to certain events occurring thereafter. The jury here chose to believe the testimony presented by the state rather than that presented by the defendant. See Strong v. State, 232 Ga. 294, 298 (206 SE2d 461); Proctor v. State, 235 Ga. 720, 721 (221 SE2d 556) and cits.
2. The only other enumeration of error contends the trial court erred in denying the motion to direct a verdict in favor of the defendant as to Count 2 containing the recidivist charge because he was not effectively represented by counsel at the time he entered a guilty plea. The trial in the case sub judice occurred on November 30,1977. His plea and sentence in the robbery case occurred on January 18,1965. The state presented certified copies of the indictment containing the signature of defendant’s counsel waiving formal arraignment and pleading guilty, the same being one Edwin Fortson and one Thomas (middle initial illegible) Nickerson, Jr., as well as that of the solicitor-general, Thomas W.
Under the evidence before the court, while somewhat conflicting as to the entering of the plea of guilty by the defendant in 1965, there was a sufficient showing that defendant had been represented by counsel, had been advised of his rights with reference to entering the plea
Also we note that defendant’s plea of guilty in 1965 was prior to the decision in Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The decision in Boykin v. Alabama, supra, is prospective, not retroactive in effect. Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892); Laidler v. Smith, 227 Ga. 759, 760 (2) (182 SE2d 891). Therefore, we must consider defendant’s plea of guilty in the light of our case law prior to the Boykin decision. Here, defendant has failed to overcome the presumption in favor of the judgment against him as set forth in such cases as Dutton v. Parker, 222 Ga. 532 (150 SE2d 833), and Stanforth v. Balkcom, 217 Ga. 816 (125 SE2d 505).
Judgment affirmed.