Goss v. State

• Decision Date: 03 February 1982
• Docket Number: No. 63067,63067
• Citation: 161 Ga.App. 539,288 S.E.2d 253
• Parties: GOSS v. The STATE.
• Court: Georgia Court of Appeals

Page 253

288 S.E.2d 253

161 Ga.App. 539

GOSS v. The STATE.

No. 63067.

Court of Appeals of Georgia.

Feb. 3, 1982.

Certiorari Denied April 8, 1982.

QUILLIAN, Chief Judge.

Pursuant to "plea bargaining," the defendant plead guilty to one count of an indictment charging him with aggravated assault and two other counts were dismissed by the state. After the trial judge sentenced the defendant to serve 10 years, a motion to withdraw the plea of guilty was filed. This motion was denied and appeal was brought to this court. Held:

It is well established "that a ruling on a motion to withdraw a plea of guilty after pronouncement of sentence is always within the sound legal discretion of the trial court." Smith v. State, 231 Ga. 23, 24, 200 S.E.2d 119. Accord, State v. Germany, 246 Ga. 455, 456(1), 271 S.E.2d 851. However, the exercise of that discretion is primarily controlled by the Constitutional principles enumerated in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

Since Boykin, 395 U.S. 238, 242, 89 S.Ct. at 1711, supra, is the landmark case in the area we quote its essential pronouncements: "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment... Admissibility of a confession must be based on a 'reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.'... The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation... 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' (Citations omitted).

"We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934.

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record."

In applying Boykin the Georgia Supreme Court has held: "After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state 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. Although it is preferable to have a knowing and intelligent plea of guilty shown on the record of the guilty plea hearing, so as to terminate the issue once and for all, Boykin as construed by Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892; Huff v. Barnett, 230 Ga. 446, 197 S.E.2d 345; and Bailey v. Baker, 232 Ga. 84, 205 S.E.2d 278, does not require this as the sole means of making this determination." Roberts v. Greenway, 233 Ga. 473, 475(1), 211 S.E.2d 764. Accord, Conlogue v. State, 243 Ga. 141(2), 253 S.E.2d 168.

Here we have first examined the record of the guilty plea proceedings and found the trial judge interrogated the defendant by a series of 12 questions. However, a waiver of the constitutional rights enumerated in Boykin is not found. Likewise, on the subsequent hearing of the motion to withdraw the guilty plea, there was a failure to establish that the defendant was apprised of and explicitly waived these constitutional rights.

Although this may appear to be a technical reason for voiding the defendant's plea of guilty, we are constrained by Boykin's mandate to find there was no knowing, express waiver by the defendant of his rights.

For the benefit of the Bench and Bar we emphasize the need for these vital issues to be covered prior to receiving the guilty plea. Without intimating any formal approval, it should be noted that the Georgia Superior Court Criminal Benchbook contains a comprehensive list of questions and areas to be covered where pleas of guilty are offered.

Solely for the reasons hereinbefore stated, the trial judge abused his discretion by not permitting the defendant to withdraw his plea of guilty.

Judgment reversed.

McMURRAY, P. J., and POPE, J., concur.

On Motion for Rehearing

The State has filed a motion for rehearing which was one day after the expiration of the period when such motion could be filed. However, despite the untimeliness of the motion, because of the gravity of the issues herein involved we are reconsidering our former judgment and treat the motion as a brief for our information only.

With regard to cases cited as being opposed to our position, we are not persuaded by a specially concurring opinion in State v. Johnson, 260 La. 902, 257 So.2d 654 (1972) which is directly contrary to a 1971 Louisiana Supreme Court opinion (State...