Laidler v. Smith, 182 S.E.2d 891

Laidler v. Smith

182 S.E.2d 891

Ga.

1971

Check Treatment

Hawes, Justice.

Thе appeal here is from the denial of a writ of habeas corpus. On November 9, 1967, the applicant plead guilty in the Superior Court of Peacb County to the offense of molestation of а' minor child. Both he and his attorney, D. W. Wells, signed the guilty plea. He was sentenced to serve 20 years in the penitentiary. On August 4, 1970, he filed in. the Superiоr Court of Tattnall County his petition for habeas corpus. After a hearing held on October 14, 1970, the judge of the superior court, on January 27, 1971, passed an order ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍denying the application for habeаs corpus and remanding the petitioner to the custody of' the wаrden. That judgment was' entered on January 29, 1971. In his'appeal to this court, petitioner enumerates the order appealed frоm as error and contends that the long delay between the prеsentation of the petition and final judgment denied him due process of law and equal protection of the laws as guaranteed by the State and Federal Constitutions. He filed in this court a motion that hе be discharged on account of this delay.

1. Appellant arguеs that the judgment denying the habeas corpus was error becausе he was denied effective assistance of counsel at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thе time that he was arraigned and plead guilty. In answer to this contention, it is sufficient to say that the record fails to *760 disclose that such was the case. On the contrary the record shows that he was represented in the courtroom by an able attorney, a practitiоner of many years’ experience at the bar, and that he was fully advised of his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rights and of the consequences of his pleading guilty or pleading not guilty. The evidence clearly authorized the finding of the habeas corpus court that the appellant was not denied effective assistance of counsel.

Argued May 10, 1971 Decided July 9, 1971.

2. Relying upon the case of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), appellant contends that the trial judge must personally "canvass the matter with the dеfendant” before he accepts a plea of guilty, that is, hе must ascertain by questioning of the defendant at the time that the defendant’s guilty plea was freely and voluntarily given. Appellant contends that this was not done by the trial judge before accepting his plea. The case relied upon was decided in 1969 and the pleа in this case was entered in 1967, two years earlier. The ruling in the Boykin case has been held ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not to be retroactive in effect. Hughes v. Rundlе, 419 F2d 116, 118 (3); Fear v. Commonwealth of Pennsylvania, 423 F2d 55 (1); Del Piano v. United States, 427 F2d 1156. Since the evidence authorized the habeas corpus court to find that the plea of guilty was in fact voluntarily and knowingly entered by the dеfendant, the failure of the judge receiving the plea to questiоn the defendant with respect to its voluntariness was harmless and the hаbeas corpus court did not for this reason err in entering the judgment here complained of.

3. The trial judge in a habeas corpus рroceeding is the trior of the facts, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and his finding, if supported by any evidеnce, will not be disturbed. Johnson v. Smith, 225 Ga. 519, 520 (169 SE2d 812).

4. Since the habeas corpus court did not еrr in denying the writ and in remanding the petitioner to the custody of the wardеn, if the long delay in rendering the judgment could be said to be error, it was сlearly harmless and was not cause for the discharge of the appellant.

Judgment affirmed.

All the Justices concur. *761 Benjamin Zeesman, for appellant. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Dorothy T. Beasley, Assistant Attorneys General, B. Daniel Dubberly, Jr., Deputy Assistant Attorney General, for appellee.