Bailey v. Baker, 28638

• Decision Date: 16 April 1974
• Docket Number: No. 28638,28638
• Citation: 205 S.E.2d 278,232 Ga. 84
• Parties: Linda Whitfield BAILEY v. Pat I. BAKER.
• Court: Georgia Supreme Court

Page 278

205 S.E.2d 278

232 Ga. 84

Linda Whitfield BAILEY v. Pat I. BAKER.

No. 28638.

Supreme Court of Georgia.

April 16, 1974.

Wm. Ralph Hill, Jr., LaFayette, for appellant.

David N. Vaughan, Dist. Atty., Cartersville, for appellee.

Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, amicus curiae.

Syllabus Opinion by the Court

HALL, Justice.

This is an appeal from the denial of a habeas corpus petition. Petitioner Bailey in September, 1970, entered a plea of guilty to a charge of aggravated assault with intend to murder, and she was sentenced to serve 10 years on probation and to make restitution of $3,000. On October 11, 1973, Bailey's probation was revoked and she was imprisoned to serve the remainder of her sentence. Her habeas corpus petition followed, on the central allegation that her guilty plea was void because the court in accepting the plea subsequent to the decision date of Boykin v. Alabama, 395 U.S. 238, 239, 89 S.Ct. 1709, 23 L.Ed.2d 274, failed to comply with Boykin's requirement that the defendant be instructed on the record concerning what the plea connoted and its consequences. In support of her petition she submitted the affidavit of the official county court reporter that his search of the records showed that no one inquired on the record into the voluntariness of the plea and that on that date it was not the custom in the Superior Court of Gordon County to report or record any inquiries or warnings given to the accused by the trial judge or anyone acting for him. Petitioner also submitted her own affidavit to the effect that she believed she acted in self defense, she wanted a jury trial, and did not desire to plead guilty; and that neither the trial judge nor the District Attorney inquired into whether she understood the charge, the minimum and maximum sentences, and the trial and appeal rights a guilty plea would waive; and that only some time later, upon inquiry of the court clerk, did she learn that she had entered a guilty plea and been sentenced to probation.

An evidentiary hearing was held upon her petition and, over repeated objections of her attorney at the hearing, the attorney who represented her when she entered the plea testified that he had communicated to her what a plea of guilty would entail; that she had been inclined to think that his projection of the court's probable sentence upon the plea was too severe; that he told her that she had the right to go to trial and advised her concerning what sentence the jury might impose; that she pleaded guilty and received the sentence he told her such a plea would probably produce. Also over objection, the probation officer to whom she was assigned and who was present at the entry of the plea testified that he had explained the meaning of the sentence to her immediately after it was imposed; had explained the conditions of her parole; and that she had signed in his presence the order of probation certifying that she understood the conditions of her parole.

The habeas corpus court denied her petition and remanded her to custody without written opinion, and this appeal followed raising five enumerations of error.

1. Enumeration 1, claiming that petitioner's oral motion for judgment on the pleadings should have been granted for failure of the state to respond to the petition within 20 days as required by Code Ann. § 50-127(6) is without merit. Petitioner alleges no specific prejudice to her from the state's procedural error, and, in any event, 'disobedience of a respondent to a writ requiring him to answer within a stated time may subject him to punishment for contempt but it does not require release of the prisoner.' Beavers v. Smith, 227 Ga. 344, 345, 180 S.E.2d 717, 719.

2. (a) Petitioner's enumeration 2 raises a point not heretofore decided by this court: Whether the lower court erred in admitting the testimony of her former attorney concerning the information he gave her regarding a guilty plea, over her objection that such testimony violated the attorney-client privilege, Code § 38-419. Petitioner emphasizes that she had made no claim of professional misconduct or incompetence of representation such as was made in Peppers v. Balkcom, 218 Ga. 749, 751, 130 S.E.2d 709, and urges that therefore she may not be held to have waived her claim to the privilege.

In United States v. Woodall, 438 F.2d 1317 (5th Cir. 1970) the Fifth Circuit considered a claim of attorney-client privilege in similar circumstances where there was no claim of misconduct or incompetent representation, and ruled that a habeas corpus petitioner cannot claim that he was not informed of the sentence consequences of a guilty plea, and then invoke the privilege to prevent the attorney from testifying. The court gave a dual ground for its decision, one ground being that petitioner there testified about communication with the attorney to such an extent that waiver occurred sufficient to allow the attorney to testify to the whole transaction. We do not have that situation in Bailey's appeal. But the Fifth Circuit had another ground for its result, based upon concepts of fairness and justice. Paraphrasing Wigmore on Evidence, the court wrote, 'It (Wigmore's treatise) notes that waiver by implication involves two basic elements. The first is subjective-does the person holding the right to claim the privilege intend to waive it? The second element is objective-Is it fair and consistent with the assertion of the claim or defense being made to allow the privilege to be invoked? This objective determination should be based upon whether the position taken by the party goes so far into the matter covered by the privilege that fairness requires the privilege shall cease even when, subjectively, he never intended the result.' Id. p. 1324. Concluding its discussion, the court wrote (p. 1326): 'Courts earnestly pursuing reality would be hard put to justify a rule that would allow a defendant . . . to assert that his solemn pleas of guilty were negated for lack of accurate information of sentence consequences, then permit him to run a procedural trap play that would block the development of the plain truth which shows his own attorney told him exactly what he could expect. Not only does this specious sophistry fail to protect confidential relationships, it triples with the truth-it scoffs at justice-and we reject it flatly.'

We reject it also.

( b) Petitioner attacks the admission of...