Carter v. Johnson, S04A0213.
| Decision Date | 12 July 2004 |
| Docket Number | No. S04A0213.,S04A0213. |
| Citation | 278 Ga. 202,599 S.E.2d 170 |
| Parties | CARTER v. JOHNSON. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Marcus C. Chamblee, Atlanta, for appellant.
Thurbert E. Baker, Atty. Gen., Chad E. Jacobs, Asst. Atty. Gen., for appellee.
During his 1996 trial for possession of cocaine with the intent to distribute and possession of a firearm by a convicted felon, Andrew D. Carter changed his pleas to guilty. He was represented by retained counsel during trial and at the time he entered his guilty pleas. After sentencing, Carter timely filed a motion to withdraw his guilty pleas. At the hearing on the motion, he was not represented by counsel and was not informed by the trial court of his right to have counsel present. Carter did not waive his right to have counsel present at the hearing. After Carter testified and was cross-examined, the court found the asserted grounds for relief were inappropriate for a motion to withdraw guilty pleas, Carter had entered his pleas knowingly and voluntarily, and Carter had been aware of the constitutional rights he was giving up by tendering a plea. Accordingly, the trial court denied Carter's motion. The trial court did not tell Carter he had a right to appeal the denial of his motion.
Carter filed a pro se petition for habeas corpus relief in 2002, which petition was amended by later-acquired counsel to allege his Sixth Amendment right to counsel was violated when he was not appointed counsel during the hearing on his motion to withdraw his guilty pleas and did not waive his right to counsel, and he was unlawfully denied the right to appeal the denial of his motion to withdraw his guilty pleas because he was never informed of this right by the trial court. As to the right to counsel, the habeas court denied relief based on its conclusion in Fortson v. State, 272 Ga. 457, 532 S.E.2d 102 (2000), which held a motion to withdraw a guilty plea is a critical stage at which the right to counsel attaches, announced a new rule of Georgia criminal procedure not applicable to Carter's case. The habeas court also denied the second ground for relief, holding Carter did not have an unqualified right to appeal the convictions entered on his guilty pleas, and since no such right existed, did not have to be informed of a right to appeal. The habeas court determined that since the arguments raised by Carter in the motion to withdraw guilty pleas could not be resolved by reference to facts appearing in the record,1 Carter was not entitled to appeal his convictions, and in the absence of a right to appeal, the failure to inform him of a right to appeal was not error. This Court granted Carter's application for a certificate of probable cause and directed the parties to address whether the habeas court erred in concluding Fortson v. State created a new rule of procedure and, therefore cannot be implemented retroactively in state habeas cases.
1. Head v. Hill, 277 Ga. 255, 257, 587 S.E.2d 613 (2003). Our inquiry begins with deciding whether Fortson, supra, announced a new rule. Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). Since Fortson imposes a new obligation on the State (appointment of counsel for motion to withdraw guilty plea) and since the result in that case was not dictated by Georgia precedent existing when Carter's conviction became final, as is shown by the reliance in Fortson on decisions from federal courts and those of other states, we conclude the rule announced in Fortson is a new rule.
Since the rule announced in Fortson was not one that places "certain conduct beyond the power of the State to proscribe," (Head v. Hill, supra, 277 Ga. at 257, 587 S.E.2d 613), it is a procedural rule and will be applied retroactively only if it is a "watershed" rule, i.e., a rule "concerning procedures that are implicit in the concept of ordered liberty and that implicate the fundamental fairness and accuracy of the criminal proceeding." Id. "Although the precise contours of this exception may be difficult to discern, we have usually cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the exception." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Such watershed rules are rare, indeed: Leavitt v. Arave, 371 F.3d 663, 678 (9th Cir.2004). Paraphrasing a holding in Coleman v. U.S., 329 F.3d 77, 89 (2d Cir.2003), we note that unlike Gideon, Fortson did not cut a new rule from whole cloth. It merely " clarified and extended" the scope of a well-settled principle of criminal procedure: the defendant's right to representation at critical stages of a prosecution. It did so not by announcing a rule of extremely broad application, as the U.S. Supreme Court did in Gideon, but by adding the hearing on a motion to withdraw a guilty plea to the list of critical stages of a prosecution, a change that affects relatively few criminal prosecutions when compared to the effect of Gideon. We conclude, therefore, the rule announced in Fortson was not a watershed rule. That being so, it will not be applied retroactively. Head v. Hill, su...
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