519 S.E.2d 893 (Ga. 1999), S98G1663, Nash v. State

Docket Nº:S98G1663.
Citation:519 S.E.2d 893, 271 Ga. 281
Opinion Judge:HUNSTEIN, Justice
Party Name:NASH v. The STATE.
Attorney:Pete & Associates, Anthony T. Pete, for appellant. Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.
Judge Panel:All the Justices concur, with BENHAM, C.J., FLETCHER, P.J., and SEARS, J., concurring specially. BENHAM, Chief Justice, concurring specially. SEARS, Justice, concurring specially.
Case Date:July 06, 1999
Court:Supreme Court of Georgia

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519 S.E.2d 893 (Ga. 1999)

271 Ga. 281



No. S98G1663.

Supreme Court of Georgia.

July 6, 1999

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 629 S.E.2d 86

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Pete & Associates, Anthony T. Pete, Athens, for appellant.

[271 Ga. 291] Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

HUNSTEIN, Justice.

A jury found 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, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The State was not able to produce the transcript of the earlier plea hearing and instead adduced the testimony of the prosecutor, present when Nash pled guilty, that it was the usual practice of that trial court to accept only those guilty pleas that were knowingly and voluntarily entered. Nash was sentenced as a recidivist and appealed his conviction to the Court of Appeals, which affirmed. Nash v. State, 233 Ga.App. 75, 503 S.E.2d 23 (1998). We granted certiorari to consider whether Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) applies to collateral attacks on final judgments in Georgia so as to place the burden of production on the recidivism defendant rather than the State when the defendant seeks under Boykin v. Alabama, supra, to challenge the validity of a prior guilty plea used to enhance a sentence pursuant to OCGA § 17-10-7(a). While we recognize that our opinion in Pope v. State, 256 Ga. 195(17), 345 S.E.2d 831 (1986) represented the controlling case law on this issue, this Court now overrules Pope to follow Parke v. Raley in holding that the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered. 1

In Boykin v. Alabama, supra, 395 U.S. at 242, the United States Supreme Court held that a silent record cannot be used to establish that a guilty plea was knowingly and voluntarily made and that the [271 Ga. 282] burden rested on the State to "spread on the record the prerequisites of a valid waiver" of the important rights implicated by a defendant's plea of guilty. Boykin, however, involved the direct appeal the defendant filed from the guilty plea conviction itself.

In an attempt to comply with Boykin, this Court held in Pope v. State, 256 Ga. 195, 209(17), 345 S.E.2d 831 (1986), in regard to the sentencing phases of death penalty trials, that

"[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 invalid 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: the "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

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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 court 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 [271 Ga. 283] it appropriate to assign a proof burden to the defendant. [Cit.]" Id. at 31. The Court conducted a survey of practices among the state courts and found that they allocated proof burdens differently, with some placing the full burden on the prosecution, some assigning the entire burden to the defendant once the government has established the fact of conviction, and others taking a "middle ground," namely, one that "requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. [Cits.]" Id. at 33. The Parke Court did not find any of these practices constitutionally infirm, id. at 33-34, and concluded by holding that "the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin." Id. at 34.

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, 269 Ga. 646(15), 501 S.E.2d 219 (1998) (State has burden of proving a valid waiver before conviction may be used in aggravation of sentence during the sentencing phase of death penalty case); Waldrip v. State, 267 Ga. 739(21), 482 S.E.2d 299 (1997) (guilty plea convictions were adequate on their face to prove voluntariness; misstatement by prosecutor regarding who had burden of proving voluntariness of guilty plea conviction was properly cured by trial court's instruction that burden of proof rests with State); Bright v. State, 265 Ga. 265(20), 455 S.E.2d 37 (1995) (citing Pope, supra, holds that failure to object waived any problem with State's proving the voluntariness of collateral guilty plea convictions); Spencer v. State, 260 Ga. 640(10), 398 S.E.2d 179 (1990) (voluntariness of plea could be determined from evidence adduced by State although no Pope objection had been raised to admission of plea); Potts v. State, 259 Ga. 96(14), 376 S.E.2d 851 (1989) (in absence of trial transcript, requirement of Pope satisfied by testimony of witnesses from original trial to prove commission of crime). Since Parke v. Raley was rendered, the Court of Appeals has also correctly followed the controlling authority Pope represented in cases such as Postell v. State, 233 Ga.App. 800(3), 505 S.E.2d 782 (1998), decided eleven weeks after Nash, supra; Manker v. State, 223 Ga.App. 3(5), 476 S.E.2d 785 (1996); Dowdy v. State, 209 Ga.App. 95(3), 432 S.E.2d 827 (1993).

The appeal in Nash presents this Court with the first opportunity to consider the application 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 system [271 Ga. 284] of placing the entire burden on the State, as exemplified in Pope, fails to give any presumption of regularity to a final conviction used in proceedings to enhance a sentence pursuant to OCGA § 17-10-7(a), we today overrule Pope and conclude that the burden of production is on the recidivism defendant rather than the State when the defendant seeks under Boykin v. Alabama, supra, to challenge the validity of a prior guilty plea used to enhance a sentence in such proceedings. See State v. Shelton, 621 So.2d 769, 779 (La.1993).

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 below. Grinad v.

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State, 34 Ga. 270, hn. 1 (1866). See also Bridges v. State, 227 Ga. 24(2), 178 S.E.2d 861 (1970); Newton v. Newton, 222 Ga. 175, 149 S.E.2d 128 (1966); Jones v. State, 226 Ga.App. 608, 487 S.E.2d 89 (1997). We also recognize the well-established practice by our State courts in utilizing the Boykin colloquies, see Uniform Superior Court Rules 33.7, 33.8, 33.9, 33.11, as well as our appellate courts' strict enforcement of those practices. See, e.g., King v. State, 270 Ga. 367, 509 S.E.2d 32 (1998); Knight v. Sikes, 269 Ga. 814, 504 S.E.2d 686 (1998). Given the presumption of regularity together with the conscientious application of Boykin in guilty plea proceedings, we agree with the Parke Court that it "defies logic" to presume that a defendant was not advised on his rights from the mere unavailability of a transcript, id., 506 U.S. at 30, and thus we conclude that Boykin does not prohibit the courts of Georgia from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained. Parke, supra, 506 U.S. at 30.

This determination requires us...

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