*1 for Standards American Bar Association Analysis Laws, Legal Rules and with Criminal Justice deficient we are In my opinion, (May, Practice trial the speedy implementation our case illustrates This own Constitution. of our provision reason is any good months without delay of 27 because a dissent. Therefore, I respectfully long. too concurs Justice Gunter to state that am authorized in this dissent. ROBERTS v. GREENWAY.
Jordan, Justice. the denial from appeals
Patrick Roberts Superior in Clarke for a writ of habeas petition Court. four pursuant was arrested appellant
The crime him with the charging different warrants of his appointed In the company swindling. cheating the magistrate’s before counsel he appeared a commitment and waived County Clarke 3,1973, On October offenses. charged to all of the Court in the State attorney appeared and his appellant to all pleas written signed County Clarke then charged. Appellant offenses four of the on two confinement months sentenced to twelve on each probation twelve months and to charges. other claimed
Appellant un- without were entered evolving derstanding were the pleas therefore pleas, of said rights. in violation of his enter- In an attempt attorney knowingly ed trial appellant’s toward directed questions respondent informed he had extent to which concerning counsel probable line to this objected entering pleas. that it invaded the grounds province questioning objection was sustained privilege. by the habeas such evidence was not admitted. judge, It was established that no Alabama was established at the time the pleas Judge were entered. The State Court testified that was *2 record, practice not his to make such a the rationale being that he assumed the requisite imparted information was by attorney. the defendant’s
The habeas after of judge findings above fact ruled that met petitioner "The herein has not of did proof resting burden him to show that he upon a any make and waiver of knowing intelligent under rights the Constitutions of the State Georgia of the United was not of the adequately States or advised possible of him consequences guilty by of entered of each the . . . cases.” The based his (1) conclusions of the grounds law on that: the judgments and sentences valid on the face thereof and the petitioner such attacking judgment has the burden of proving any invalidity based (2) on an of alleged denial his constitutional that a rights; defendant a criminal case of was aware his rights time of the of of plea guilty and made a and thereof intelligent waiver may proved by extrinsic evidence as well as of transcript of proceeding at which the plea guilty (3) entered; was an court; an officer attorney is of the and he competent when and experienced matters under litigation there is a he has presumption adequately his discharged responsibility and duties as (4) such; sufficient, absence of any evidence to the support to an finding attorney who is and competent experienced in criminal and adequately properly advised client his as to his under Constitutions of the United client and against pending
of the possible consequences of to such plea guilty herein charges; has not met burden of proof resting upon him to show he did not make waiver of his of the State the Constitutions advised not adequately or was the United States him to cases. the above referred in each of erred the habeas contends that The appellant custody. him to remanding denying the parties the briefs carefully studying 1. After appeal, styled in the above of the court and the order to the confusion still exists some there appears Alabama, 395 U. S. by Boykin dictated standards these (1969), how 1709, 23 LE2d SC courts of appellate have been construed standards an opportunity case presents feel that this state. We rest. confusion to some of this at least Boykin requires first contends the guilty intelligently that a defendant’s entered. the question After a raises prisoner to show is on the state guilty, voluntarily entered. intelligently *3 means, showing two this end may accomplish state the defendant record of the guilty and the waiving he was of all of the was cognizant (2) fill a silent plea; shows affirmatively use of extrinsic evidence it is voluntary. Although guilty plea the to have preferable so as hearing, the guilty plea on the record of
shown
construed
all,
issue once and
terminate the
(182
892);
Connell,
SE2d
The trial court further erred in holding that presumption that an attorney has adequately discharged his responsibilities duties, in the absence of any evidence to the is sufficient "to support a finding that an attorney who is competent and experienced in adequately and properly advised his client as to Constitutions United States and of Georgia with to criminal charges pending against the client and of the possible consequences of a plea of guilty JS, to such charges. See 7 C Attorney Client, § (1); CJS, 157c Evidence, § 31A p. Footnote 39 and cases cited.”
Although this presumption may be considered in determining whether valid, this pre- sumption alone is insufficient, itself, and of to sup- port holding that the state has adequately carried its burden of proof the pleas were knowing voluntary. before, As stated Boykin and our cases following Boykin require state make showing that constitutionally valid.
3. We have carefully reviewed evidence presented by the state at the habeas subject of this appeal. We find that the state failed to carry the burden of the appellant’s pleas were entered with a full of what understanding be. might However in this decision we cannot overlook the fact that the state was prevented from making the required showing by virtue of a ruling made by the habeas judge that any communications between the his attorney prior to the entry *4 of the guilty pleas were privileged attorney-client privilege therefore inadmissible. We do not agree with this ruling.
In this case the petitioner makes no claim that his attorney was incompetent, negligent
477 misconduct, and claims yet attorney-client privilege order to thwart a determination A alleged. constitutional defect coipus deprived cannot that he was allege and then invoke the shield of an accurate privilege prevent the merit of claim. As we said determination Baker, United Bailey supra, quoting 1317, 1326 earnestly pursuing 438 "Courts Woodall, F2d rule that would allow justify would be hard reality to assert his solemn a defendant ... of accurate information sentence for lack negated trap him to run a procedural then permit
consequences, plain truth... that would block play development fail to protect only specious sophistry Not does this with the truth —it relationships, confidential trifles reject flatly.” at We stated justice scoffs we —and hold we state it now. To otherwise Bailey, supra, and the true function of would be cross purposes to determine the truth corpus hearing, which is infirmities. falsity alleged constitutional In reverse light Bailey, opinion and this we supra, for an remand this case judgment of the trial evidentiary opinion. not inconsistent with All with direction. Judgment reversed and remanded JJ., concur, who except Ingram, the Justices Gunter J., Hill, in the only. participating. concur Argued January — 1974 Decided November West,
Thomas M. for appellant. Solomon, Ray Stula, Solicitor, John Ken William G. Nicholson, for appellee. Justice, concurring.
Gunter, My only. concur of reversal my dissenting opinions concurrence is based on Huff v. Ga.