Britt v. Smith

• Decision Date: 19 November 2001
• Docket Number: No. S01A0873.,S01A0873.
• Parties: BRITT v. SMITH, Warden.
• Court: Georgia Supreme Court

556 S.E.2d 435

274 Ga. 611

BRITT v. SMITH, Warden.

No. S01A0873.

Supreme Court of Georgia.

November 19, 2001.

Reconsideration Denied December 14, 2001.

Victor L. Britt, Waycross, Pro Se Appellant.

Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Daniel G. Ashburn, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

CARLEY, Justice.

On December 8, 1993, in Spalding County, Georgia, Victor Britt killed Mr. Milton Cochran, a store owner, by stabbing him 16 times in the chest and slashing his throat from ear to ear. When he was captured a short time later, he confessed to the authorities. Represented by competent and able counsel, he thereafter negotiated a plea bargain to avoid the State's pursuit of the death penalty. He pled guilty to malice murder and to the commission of aggravated battery on a person over the age of 65. The trial court accepted the plea and imposed the bargained-for sentences. Britt petitioned for a writ of habeas corpus, challenging the constitutionality of his guilty plea. The habeas court denied relief. We granted Britt's application for a certificate of probable cause to appeal, in order to determine whether the habeas court correctly concluded that he knowingly and voluntarily entered his guilty plea. Having considered the transcript of the guilty plea hearing and finding no constitutional violation, we affirm the denial of the petition.

At the guilty plea hearing, Britt's attorney made the following statement:

My client deeply regrets what happened and pleads openly and freely to the murder and aggravated battery count.... [W]e are ... appreciative of both the District Attorney and Your Honor's willingness to accept a plea that eliminates the death penalty ... in this case. (Emphasis supplied.)

At that same guilty plea hearing, Britt made an emotional apology to Mr. Cochran's family and stated to them and to the trial court that he wanted "everybody to heal, and so I'm taking this upon myself, you know, [be]cause I'm a man. I accept the responsibilities of taking this upon myself." Britt now seeks to evade responsibility for his crimes by alleging that his guilty plea was not knowing and voluntary and that it was, therefore, unconstitutional. However, the record in this case shows that, before entering the guilty plea, Britt was fully apprised that by pleading guilty, he would relinquish the right to remain silent, the right to confront witnesses, and the right to trial by jury. Thus, the habeas court clearly was authorized to find that the guilty plea was constitutionally valid as against the attack made upon it. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Bowers v. Moore, 266 Ga. 893, 471 S.E.2d 869 (1996).

Uniform Superior Court Rule (USCR) 33.8 requires a trial court to inform a criminal defendant on the record that he will waive certain enumerated rights by pleading guilty. However, that Rule is not a constitutional provision, and habeas corpus relief is not available unless Britt suffered a substantial denial of his federal or state constitutional rights. OCGA § 9-14-42(a). A written constitution is "the original law by which our system of government was set up." Wheeler v. Bd. of Trustees of Fargo School Dist., 200 Ga. 323, 331(3), 37 S.E.2d 322 (1946). This Court is authorized to promulgate the Rules "in order to provide for the speedy, efficient and inexpensive resolution of disputes and prosecutions...." USCR 1. However, this Court cannot amend the federal or state constitutions by incorporating the Rules therein, so as to elevate those provisions to the status of "rights" which are guaranteed by the paramount law of this state. See USCR 1. "`The object of construction, as applied to a written constitution, is to give effect to the intention of the people in adopting it ... [.]' [Cit.]" Laurens County v. Keen, 214 Ga. 32, 33(1), 102 S.E.2d 697 (1958). The United States Constitution and the Georgia Constitution of 1983 as "adopted by the people of this State ... [are] binding on this [C]ourt." Cox v. Peters, 208 Ga. 498, 505, 67 S.E.2d 579 (1951). As a criminal defendant, Britt certainly had the constitutional right to due process, which right mandates that the plea he entered be a knowing and voluntary admission of his guilt. Boykin v. Alabama, supra; Claybourn v. State, 190 Ga. 861, 865(1), 11 S.E.2d 23 (1940). However, the citizens of Georgia also have the fundamental right to a convicted defendant's continued incarceration, if lawful, and to a judiciary which adheres to the limitations on its authority to grant habeas relief when addressing the validity of convictions.

Because USCR 33.8 is not a constitutional provision, the question of whether its requirements "were violated is not cognizable in a habeas action...." Parker v. Abernathy, 253 Ga. 673, 674, 324 S.E.2d 191 (1985). The only legitimate issue before this Court is whether the habeas court correctly held that Britt's guilty plea passes constitutional muster because he knowingly and voluntarily entered it. The only burden on the Warden was to address Britt's challenge and show that the "`guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.' [Cit.]" (Emphasis supplied.) Nash v. State, 271 Ga. 281, 285, 519 S.E.2d 893 (1999). The three Boykin rights are the "`right to trial by jury, [the] privilege against self incrimination, and [the] right to confront [one's] accusers.'" Nash v. State, supra at 285, 519 S.E.2d 893.

Thus, resolution of this appeal is not dependent upon the Warden's showing that Britt waived any additional rights enumerated in USCR 33.8(B). We cannot elevate the provisions of that Rule to the status of requirements of constitutional dimension, by ignoring the controlling principle that "habeas corpus is available to review constitutional deprivations only...." Valenzuela v. Newsome, 253 Ga. 793, 795(2), 325 S.E.2d 370 (1985).

Byrd v. Shaffer, 271 Ga. 691, 523 S.E.2d 875 (1999) is not support for engrafting USCR 33.8 onto either the United States or Georgia Constitutions. There, unlike here, the habeas court found a violation of constitutional rights and granted the writ of habeas corpus. Thus, the issue on appeal in Byrd was the sufficiency of the evidence to support that finding. Although the transcript of the guilty plea hearing did not show a waiver of the three Boykin rights, trial counsel testified that his typical practice was to review with his clients the rights they were waiving. The petitioner, however, testified that the attorney did not follow that routine in his particular case. On appeal, this Court affirmed because, under those circumstances, the habeas court's finding that there had been a constitutional violation was

not clearly erroneous. Shaffer testified that his counsel did not go over the waiver of rights and his counsel testified that his typical practice was to go over the rights being waived. Because there was conflicting evidence regarding what Shaffer's counsel might have told Shaffer about the consequences of a guilty plea, the habeas court, as the finder of fact, was authorized to resolve the conflicts in the manner in which it did. [Cit.]

Byrd v. Shaffer, supra at 692(1), 523 S.E.2d 875. Thus, Byrd stands only for the limited proposition that, when the transcript of the guilty plea hearing fails to show an express constitutional waiver, the testimony of a habeas petitioner that he was not informed of any of the Boykin rights will authorize the grant of relief. Byrd does not support the conclusion in this case that the habeas court's finding that there has not been a constitutional violation is itself clearly erroneous because the record does not show that the petitioner was informed of the rights listed in USCR 33.8.

Likewise, Clowers v. Sikes, 272 Ga. 463, 464, 532 S.E.2d 98 (2000) does not hold that the failure to inform the defendant of the rights enumerated in USCR 33.8 will render his guilty plea constitutionally invalid. That Rule is not mentioned in Clowers, because that case does not concern the voluntariness of a guilty plea, but deals with the entirely separate and distinct question of the waiver of the constitutional right to counsel. Boykin v. Alabama, supra at 242, 89 S.Ct. 1709. See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Ward v. State, 248 Ga. 60, 64(3), 281 S.E.2d 503 (1981); Purvis v. Connell, 227 Ga. 764, 766, 182 S.E.2d 892 (1971). Even the Rules recognize the distinction between those two issues. USCR 33.2(B), 33.7. Clowers is simply not relevant here, because Britt was represented by competent and effective counsel at all times. The only issue in this case is whether the habeas court was authorized to find that Britt's guilty plea was knowing and voluntary as a matter of constitutional law. The answer to that question must be based upon controlling constitutional authority rather than the inapplicable provisions of USCR 33.8.

Moreover, even accepting the flawed assumption that USCR 33.8 applies here, Britt would not be entitled to habeas relief under existing law. We have long held that, in order for a guilty plea to meet the voluntariness standard of that Rule, the defendant need not be specifically apprised of each and every right enumerated therein. McClendon v. State, 256 Ga. 480, 481(2), 350 S.E.2d 235 (1986). See also Thompson v. State, 240 Ga.App. 539, 540(4), 524 S.E.2d 239 (1999), cert. denied, 240 Ga.App. 906; Stephens v. State, 235 Ga.App. 756, 510 S.E.2d 575 (1998); Moore v. State, 225 Ga. App. 860(1), 485 S.E.2d 552 (1997); Johns v. State, 223 Ga.App. 553, 554(1), 479 S.E.2d 388 (1996). "`"[T]he question is not whether the trial court followed the letter of USCR 33.8 but whether the record, as a whole, affirmatively shows [the] plea was knowing and voluntary." (Cits.)' ...