Lead Opinion
A jury fоund Nash guilty of aggravated assault. At his sentencing hearing, the State introduced for purposes of recidivist punishment, see OCGA § 17-10-7, a certified copy of a guilty plea Nash had entered to a prior felony. Nash objected to the admission of the guilty plea on the ground that the plea had not been entered into knowingly and voluntarily. See Boykin v. Alabama,
In Boykin v. Alabama, supra,
In an attempt to comply with Boykin, this Court held in Pope v. State,
[a] plea of guilty that is invalid under Boykin may not be used to enhance punishment in a subsequent trial. . . . [W]e conclude that once the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.
Subsequent to Pope, the United States Supreme Court rendered its opinion in Parke v. Raley, supra, addressing the question whether due process permitted Kentucky to place the burden of proof on recidivism defendants to attack previous convictions based on guilty pleas as invаlid under Boykin, supra. The Parke Court, however, found Boykin inapplicable in such collateral proceedings. The Parke Court held that
Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. [Raley], however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: thе “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. [Cit.]
Id. at 29. Looking to state courts’ established practice of nearly a quarter century’s duration in utilizing the Boykin colloquies in guilty plea proceedings, id. at 30, the Parke Court determined there was no reason to suspend the presumption of regularity in such proceedings, stating that it “defies logic to presume from the mere unavailability of a transcript. . . that the defendant was not advised of his rights.” Id. at 30. Thus, the Parke Court concluded that “[i]n this situation, Boykin does not prohibit a state сourt from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.” Id.
Accordingly, the Parke Court recognized that “even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes
In the years since Parke v. Raley was rendered, this Court has repeatedly applied and reaffirmed our holding in Pope v. State, supra, but always in the context of the sentencing phase of a death penalty case. See, e.g., Mize v. State,
The appeal in Nash presents this Court with the first opportunity to consider the аpplication of our holding in Pope to non-death penalty cases in light of Parke v. Raley. Because Parke holds that Boykin does not require that the entire burden be placed on the State in sentence enhancement proceedings and because our present sys
In concluding that the recidivism defendant carries the burden of production in a collateral attack on a final judgment, we follow Parke v. Raley in relying on the presumption, long recognized in Georgia, in favor of the regularity and legality of all proceedings in the courts bеlow. Grinad v. State,
This determination requires us to revise our previous scheme regarding the allocation of burdens of proof. In determining what burden of proof to impose, we have surveyed the foreign jurisdictions reviewed by the U. S. Supreme Court and more recent holdings. See, e.g, State v. Payne,
The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, . . . the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s рrior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.
State v. Shelton, supra, 621 S2d at 779-780.
Although the Court of Appeals failed to follow the controlling authority of Pope v. State, supra,
Judgment affirmed in part, remanded in part.
Notes
Pope remains the controlling authority as to the admission of guilty pleas in the sentencing phase of death penalty cases.
Concurrence Opinion
concurring specially.
At the sentencing hearing following appellant’s conviction for aggravated assault, the trial court ruled that the State had carried its burden of establishing that appellant’s prior guilty plea, proffered by the State to enhance appellant’s punishment for the aggravated assault, was knowing, intelligent and voluntary. The State had presented extrinsic evidence at the sentencing hearing instead of submitting a copy of the transcript of appellant’s guilty plea hearing. That evidence consisted of appellant’s signed guilty plea and the testimony of the assistant district attorney who had signed the guilty plea and had been present at the guilty plea. He testified that, while he could not recall the specific details of appellant’s guilty plea hearing, he had never signed a guilty plea form during his 11 years of prаctice before the judge who took the plea unless the pleader had been informed of his rights and knowingly and voluntarily waived them, and that it was the judge’s practice of ensuring that the pleading defendant was aware of the possible consequences of a guilty plea and was aware of and waived his constitutional rights. Sworn testimony of a customary procedure may be used to establish compliance with constitutional rights or waiver thereof (Jones v. Wharton,
Neither the Court of Appeals nor the majority has determined that the trial court erred in its finding that the State had carried its burden. Instead, the Court of Appeals took upon itself the task of disregarding the controlling precedents of this State’s jurisprudence in favor of the “controlling authority” it purportedly found in Parke v. Raley,
In Kentuсky, a “persistent felony offender” who contests the use of a prior conviction based on a guilty plea to increase punishment has the burden of producing evidence that the guilty plea was not valid under Boykin v. Alabama,
While Parke neithеr controls nor purports to control the manner in which Georgia allocates the burden of proof of the validity of a prior guilty plea used to enhance punishment, issues discussed by the U. S. Supreme Court in its opinion in Parke are worthy of consideration should we be faced with a case in which we must decide whether our allocation of the burden of proof is appropriate. In such a case, we would take into consideration circumstances as thеy exist in Georgia, much as Parke recognized the practices and procedures in place in Kentucky (see Parke v. Raley, supra,
The majority jettisons our burden-of-proof allocation because of the Supreme Court’s ruling in Parke and because our system purportedly fails to give any presumption of regularity to a final conviction used to еnhance punishment pursuant to OCGA § 17-10-7 (a). Maj. Op., pp. 283-284. As I have already noted, Parke is in no way controlling precedent in the case before us. Accordingly, I turn my attention to the “presumption of regularity” which should be afforded guilty plea convictions. Both the majority and the Supreme Court recognize that the presumption of regularity plays a role when “there [is] no good reason to suspend the presumption. . . .” Parke v. Raley, supra,
Georgia requires the making and preservation of a verbatim record of the proceeding at which a defendant pleads guilty (Uniform Superior Court Rule 33.11; King v. State,
From a practical point, it is appropriate that the State shoulder the burden of establishing the validity of the guilty plea conviction proffered by the State to support the State’s request that the defendant be punished as a recidivist. Since the State is the party which decides to pursue recidivist punishment and selects which of the defendant’s prior convictions it is going to rely upon to have the defendant’s sentence enhanced (OCGA §§ 17-10-7; 17-10-2 (a)), it is rational and logical to have the State, as the proponent of the evidence, verify that its evidence may be used legitimately for this purpose. A conscientious prosecuting attorney who selects a guilty-plea-based prior conviction as the meаns of supporting enhancement of a defendant’s punishment will ensure that proof is at hand to establish that the plea was knowingly, intelligently, and voluntarily entered. In fact, even under Kentucky’s burden-of-proof allocation, the State must initially present a certified copy of a judgment of conviction and be prepared “affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant’s rights.” Parke v. Raley, supra,
I question the practical application in Georgia of the Kentucky procedure endorsed by the majority. The majority requires a defendant to produce affirmative evidence by means of a transcript of the guilty plea, testimony regarding the taking of the plea, or other affirmative evidence, but warns that the “ ‘mere naked assertion by an accused that his prior cоunseled plea was not made knowingly and intelligently is insufficient.’ ” Maj. Op., p. 285. In Georgia, it has long been appropriate to grant habeas relief, despite the presumption of regularity, based on the testimony, corroborated or not, of the con
Lastly, I questiоn the practicality of setting out a new procedure for our trial courts without discussing the ramifications that state constitutional guarantees might have. The majority’s failure to address state constitutional grounds in the case at bar is understandable given that the issue was raised only by the State’s argument on appeal that, though it met its burden of proof regarding the prior guilty plea, it should not have had to shoulder that burden.
In conclusion, I endorse only that portion of the majority opinion which affirms the trial court’s determination that appellant’s prior guilty plea conviction could be used to enhance his sentence. For the reasons stated herein, I cannot embrace either the Court of Appeals’ or the majority’s deсision to abandon Georgia precedent in favor of a U. S. Supreme Court ruling that dealt with a different attack on another state’s different procedure. Accordingly, I would order the Court of Appeals to vacate that portion of its opinion which extends beyond affirming the trial court’s ruling appealed by appellant.
I am authorized to state that Presiding Justice Fletcher joins this special concurrence.
Query whether the State’s complaint is, in rеality, a contention that the trial court erred in requiring it to carry the burden of proof. If it is, I question whether this Court is authorized to address the issue in the absence of a cross-appeal.
Concurrence Opinion
concurring specially.
I concur with much of what Chief Justice Benham writes in his special concurrence, most especially that as a matter of principle and practicality, it should remain incumbent upon the State to carry the burden of establishing the validity of guilty-plea based prior convictions proffered by the State as evidence that a recidivist defendant’s sentence should be enhanced.