Dean v. State, 70405

• Decision Date: 26 November 1985
• Docket Number: No. 70405,70405
• Citation: 338 S.E.2d 711,177 Ga.App. 123
• Parties: DEAN v. The STATE.
• Court: Georgia Court of Appeals

Page 711

338 S.E.2d 711

177 Ga.App. 123

DEAN v. The STATE.

No. 70405.

Court of Appeals of Georgia.

Nov. 26, 1985.

Rehearing Denied Dec. 19, 1985.

Roger L. Curry, Austell, for appellant.

Frank C. Winn, Dist. Atty., Richard S. Thompson, Asst. Dist. Atty., for appellee.

POPE, Judge.

On February 27, 1980 defendant Lynn Wayne Dean entered a guilty plea to a charge of burglary and was "sentenced" to the penitentiary for five years, but was given five years probation under the First Offender Act (OCGA § 42-8-60). Due to a conviction on August 22, 1984 for burglary, the court entered an adjudication of guilt on October 23, 1984 pursuant to OCGA § 42-8-60(b), finding that defendant had violated the terms of probation. Defendant was sentenced to ten years imprisonment for the 1980 burglary charge, effective from the date of adjudication. We granted defendant's discretionary appeal.

1. We turn first to the procedural issue of whether the revocation of "first-offender" probation is controlled by the discretionary appeal procedure of OCGA § 5-6-35. The statute applies to "orders revoking probation," making no distinction between "first-offender" probation (see OCGA § 42-8-60 et seq.) and probation otherwise provided for in criminal cases (see OCGA § 42-8-34). The purpose of the discretionary appeal statute is in part to reduce the tremendous case load of the state's appellate courts. Applying the plain meaning of OCGA § 5-6-35(a)(5) in this case will obviate any need for a party to follow the dissent's suggestion to file duplicitous appeals. Nevertheless, the dissent espouses the view that revocation of first-offender probation is, in effect, exempt from the discretionary appeal process. In support of this view, the dissent asserts that an appeal from the revocation of first-offender probation "is more than a mere 'order revoking probation.' It is actually an appeal also from the judgment of guilt itself as well as from the new sentence." No authority is cited for this proposition.

OCGA § 42-8-64 provides: "A defendant sentenced pursuant to this article shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from." The term "sentence" in legal parlance is generally confined in meaning to be "[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution...." Black's Law Dictionary 1222 (5th ed. 1979). That is, a "sentence" is the final judgment in a criminal case which usually forms the predicate for appellate review. See generally OCGA § 5-6-34(a)(1); Phillips v. State, 153 Ga.App. 410, 265 S.E.2d 293 (1980). However, we cannot accept the dissent's premise that the General Assembly's use of the word "sentence" in OCGA § 42-8-64 limits a criminal defendant's right to appeal his conviction to those situations in which he has been found to have violated the terms of his first-offender status. In enacting the First Offender Act the General Assembly expressly intended "to preserve the right to an appeal." Ga.L.1968, pp. 324, 325. Viewed in this light, it is clear that OCGA § 42-8-64 is intended to provide a defendant a direct appeal from his conviction upon the imposition of first-offender status (a "sentence" if you will), notwithstanding the absence of a formal and final "adjudication of guilt." See Brainard v. State, 246 Ga. 586, 272 S.E.2d 683 (1980). See also Davenport v. State, 136 Ga.App. 913(2), 222 S.E.2d 644 (1975). In other words, first-offender status takes the place of a "sentence" and once imposed upon a criminal defendant, his case assumes the mantle of finality necessary to bring a direct appeal of his conviction pursuant to OCGA § 5-6-34(a)(1). See, e.g., Dailey v. State, 136 Ga.App. 866, 222 S.E.2d 682 (1975). Since defendant in this case has followed the proper procedure to obtain appellate review of the revocation of his first-offender probation by petitioning this court for discretionary review, and since the court has granted same, we now turn to the merits of his appeal.

2. Defendant first challenges the trial court's conclusion that his guilty plea to the 1980 burglary was given intelligently and voluntarily. Once the question of the validity of a guilty plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. "The [S]tate may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary." Roberts v. Greenway, 233 Ga. 473, 475, 211 S.E.2d 764 (1975).

In the absence of a record of the entry of defendant's guilty plea to the 1980 burglary charge, the State sought to carry its burden of proof by eliciting testimony from the attorney who had represented defendant at that time. Although the attorney did not remember the taking of defendant's guilty plea itself, he did recall certain portions of his representation of defendant. For example, he remembered having many conversations with defendant as well as interviews with two co-defendants who had implicated defendant in the crime. Although defendant initially asserted his innocence of the crime, he did not vacillate once he had opted for the plea bargain arranged between his attorney and the State (a guilty plea and first-offender status). In response to a question as to how he advised his clients regarding a guilty plea, the attorney testified: "I generally discuss the nature of the charge with them. I discuss with them, based on what they tell me and what I find out and what I think their case is about and what I think the probable consequences of the case are. I discuss with them the things that generally are referred to in the plea itself regarding their right to a trial and right to call witnesses and that type stuff, and also discuss with them any negotiated plea that I have been able to work out with the District Attorney, and also the fact that that is just his recommendation and that the Judge does not have to go along with that recommendation." He also testified that he always advised his clients of the ramifications of first-offender status. When asked whether he is satisfied that a plea is freely and voluntarily made--that the client understands his alternatives--before advising a client to enter that plea, he stated: "I'm satisfied that they know ... at least within a general sense all the alternatives available to them. When I say in a general sense, certainly, I don't go over the rules of evidence and things like that necessarily ... I go over generally ... the options that are available and what that defendant can do ... [I]n terms of my representation, I feel like I can't represent someone ... if I've not made a decision in my own mind that what he's doing [in entering a guilty plea] is of his own free will; but in terms of whether or not the plea meets the minimum requirements of the constitution or otherwise, I feel like it's the Judge's decision, but like I said just in terms of my representation of the client, I satisfy myself to that."

Although there appears of record no formal motion by defendant to withdraw his guilty plea, his challenge here to the validity of that guilty plea is of the same effect. Accordingly, since a ruling on a motion to withdraw a guilty plea after pronouncement of sentence is always within the sound discretion of the trial court, so too the ruling of the trial court in the case at bar. "But where there is any question as to the voluntariness of a guilty plea we will consult both the record and the transcript in accordance with the criteria of Boykin v. Alabama, 395 U.S. 238 (89 SC 1709, 23 LE2d 274) (1969)." Harrell v. State, 145 Ga.App. 93, 94, 243 S.E.2d 611 (1978). On all factual issues raised by the evidence in a hearing challenging the validity of a guilty plea, the trial court is the final arbiter. See Marshall v. State, 128 Ga.App. 413(6), 197 S.E.2d 161 (1973); Holston v. State, 103 Ga.App. 373(2), 119 S.E.2d 302 (1961). See also Galbreath v. State, 130 Ga.App. 179, 180, 202 S.E.2d 562 (1973). Viewing the State's unchallenged evidence in light of the foregoing legal parameters, we are unable to find as a matter of law that the trial court abused its discretion in upholding the validity of defendant's guilty plea. Accord Bailey v. Baker, 232 Ga. 84(4), 205 S.E.2d 278 (1974); Huff v. Barnett, 230 Ga. 446, 197 S.E.2d 345 (1973). See also Goodman v. Davis, 249 Ga. 11(1), 287 S.E.2d 26 (1982). Compare Andrews v. State, 237 Ga. 66(1), 226 S.E.2d 597 (1976); Kirby v. State, 170 Ga.App. 11(1), 316 S.E.2d 23 (1984); Goss v. State, 161 Ga.App. 539, 288 S.E.2d 253 (1982). Therefore, this enumeration of error presents no ground for reversal.

3. Defendant's second enumeration of error asserts a failure to show that the subject guilty plea was entered with his consent and, if it was, that such consent was given intelligently and voluntarily. In light of our holding in Division 2, supra, this enumeration has no merit.

4. The argument asserted in defendant's third enumeration of error is entirely specious. See Crawford v. State, 166 Ga.App. 272(1), 304 S.E.2d 443 (1983).

5. Defendant's fourth enumeration cites as error the trial court's imposition of an additional ten years to serve in the penitentiary effective as of the date of the revocation of first-offender status and entry of adjudication of guilt. Defendant's original "sentence" was five years to serve, but this was probated pursuant to the First Offender Act. This "sentence" also provided: "If such probation is revoked, the court may order the execution of the sentence which was originally imposed, or any portion thereof, and no part of the time that the defendant...