Bazemore v. State

• Decision Date: 10 October 2000
• Docket Number: No. S00A1100.,S00A1100.
• Citation: 535 S.E.2d 760,273 Ga. 160
• Parties: BAZEMORE v. The STATE.
• Court: Georgia Supreme Court

535 S.E.2d 760

273 Ga. 160

BAZEMORE v. The STATE.

No. S00A1100.

Supreme Court of Georgia.

October 10, 2000.

Levon Bazemore, pro se.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.

HINES, Justice.

We granted Levon Bazemore an appeal from the denial of his petition for writ of habeas corpus to consider whether his 1990 guilty pleas were constitutionally valid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We conclude that they were not, and reverse.

On June 13, 1990, Bazemore entered guilty pleas in unrelated cases for theft by receiving and theft by taking. He was represented by counsel and received concurrent sentences of four years with one year to be served in confinement and the balance to be served on unsupervised probation. In addition, Bazemore consented to revocation of his probation for possession of a controlled substance for a concurrent twelve months with credit for time served. The convictions resulted in enhancement of a federal sentence Bazemore is serving.

In August 1998, Bazemore filed a pro se petition for writ of habeas corpus alleging that he did not enter the 1990 pleas knowingly and voluntarily and that his attorney was ineffective for allowing him to enter the invalid pleas. Following the filing of the pro se petition, Bazemore obtained counsel who represented him at the habeas hearing and who also filed a post-hearing brief on Bazemore's behalf.

1. Once a petitioner raises a question about the validity of a guilty plea, the State has the burden to show that the plea was voluntarily, knowingly, and intelligently made. Byrd v. Shaffer, 271 Ga. 691, 692(2), 523 S.E.2d 875 (1999); Bowers v. Moore, 266 Ga. 893, 895(1), 471 S.E.2d 869 (1996). The State can meet its burden by making a showing on the record that the defendant was cognizant of his rights and the waiver of those rights, or by using extrinsic evidence that shows affirmatively that the guilty plea was entered knowingly and voluntarily. Bowers v. Moore, at 895(1), 471 S.E.2d 869. If the State fails to make such a showing, the guilty plea will be considered invalid. Id.

The habeas court correctly found that the guilty plea transcript did not satisfy the dictates of Boykin v. Alabama for there was no colloquy with Bazemore or any other effort by the sentencing court to ensure that Bazemore understood the constitutional rights he would be waiving. The sentencing court did not pose the mandatory questions and advisements required before a court may accept a guilty plea. There was merely a brief factual statement and a form given to Bazemore acknowledging that the probation would be unsupervised. See Boykin v. Alabama, 395 U.S. at 243-244, 89 S.Ct. 1709; Bowers v. Moore, at 894(1), 471 S.E.2d 869.

The habeas court then allowed the State to attempt to show the validity of the pleas through extrinsic evidence. Bowers v. Moore, at 895(1), 471 S.E.2d 869; Knight v. Sikes, 269 Ga. 814, 816(2), 504 S.E.2d 686 (1998). Bazemore's plea attorney, Calhoun, testified that he did not remember Bazemore's cases, the pleas, or the sentences, but that as a general practice, he and his then-partner advised clients of what the sentence could be; that they had a right to a jury trial; and the consequences of a plea. When asked whether he "usually [went] over certain Constitutional rights with the defendant when he's going to enter a guilty plea," Calhoun responded that he "couldn't say." He did not know about asking "the statutory questions," such as satisfaction with his services or the right against self-incrimination.

He further testified that he went over only questions "pertinent to my plea." On cross-examination, Calhoun reaffirmed that he did not "remember anything in this case." Bazemore testified unequivocally that he was not advised of his rights at the time that he entered the 1990 pleas. Yet, the habeas court found that the State overcame the undisputed irregularities of the plea hearing and that Bazemore's pleas were knowing and voluntary.

In finding that the pleas were knowing and voluntary, the habeas court expressly relied on Calhoun's testimony about "his usual practice of making certain that his clients understood their rights prior to accepting a guilty plea" and Calhoun's statement that Bazemore "certainly knew what he was doing." But, the attorney's testimony did not provide a basis for a favorable determination about the pleas. Certainly, evidence of a routine or standard practice or procedure can be used in demonstrating compliance with constitutional standards. Jackson v. Hopper, 243 Ga. 41, 42, 252 S.E.2d 467 (1979). However, here Calhoun's testimony about his usual handling of criminal defendants fell well short of demonstrating that Bazemore was fully informed of the constitutional rights he was waiving by pleading guilty. Knight v. Sikes, supra at 817(2), 504 S.E.2d 686. What is more, Calhoun's undisputed failure to remember anything about the pleas renders merely speculative his conclusion that Bazemore certainly knew what he was doing.

In reaching its decision, the habeas court also noted that Bazemore was not mentally impaired; was intelligent; experienced in the criminal processes; and "remained aware of his rights from earlier plea hearings." The court further observed that at the habeas hearing Bazemore exhibited "more than a passing acquaintance with the case law in this area," and that his answers appeared contrived and lacking in credibility. But these observations do not support the upholding of the pleas.

Certainly a defendant's intelligence and cognitive ability may be relevant in assessing the voluntary and knowing...