Hall v. Hopper

• Court: Georgia Supreme Court
• Writing for the Court: HILL; All the Justices concur, except NICHOLS
• Citation: Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (Ga. 1975)
• Decision Date: 02 June 1975
• Docket Number: No. 29679,29679
• Parties: James F. HALL, III v. Joe S. HOPPER.

Page 839

216 S.E.2d 839

234 Ga. 625

James F. HALL, III v. Joe S. HOPPER.

No. 29679.

Supreme Court of Georgia.

June 2, 1975.

Rehearing Denied July 1, 1975.

James F. Hall, III, pro se.

Arthur K. Bolton, Atty. Gen., John B. Ballard, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HILL, Justice.

James F. Hall appeals the denial of his petition for habeas corpus, enumerating 17 alleged errors. Petitioner is presently serving three consecutive five year sentences, two for burglary and one for arson.

On May 19, 1969, he was indicted for the March 16, 1969, burglary of Cason's Drug Store. His March 5, 1970, trial on this charge resulted in a hung jury and the case was placed upon the dead docket.

On May 21, 1973, he was indicted for the February 9, 1973, burglary of the Long County Pharmacy. His July 25, 1973, trial on this indictment resulted in the first five year sentence.

On the day following this later trial, he pled guilty to the 1969 burglary indictment and to a July 2, 1973 indictment for arson, on which the two other five year sentences were imposed.

1. On this appeal, petitioner contends that his July 26, 1973, guilty plea to the March 16, 1969, burglary should be set aside because the four year statute of limitations on burglary had run and because of denial of speedy trial.

In criminal cases, the statute of limitations runs (subject to special circumstances) from the time of the criminal act to the time of indictment, Code Ann. §§ 26-502 through 26-504, Code Ann. § 26-401(o), cf. Code § 27-601, not from time of the act to time of the trial.

Petitioner's reliance on the statute of limitations is without merit. He was indicted on May 19, 1969, for the March 16, 1969, burglary.

The constitutional provisions requiring and guaranteeing 'speedy trial' generally become operative when the accused is charged (Code Ann. § 2-105, Const. art. 1, § 1, par. 5), i.e., when the prosecution commences (Code § 1-806, U.S.C.A.Const. Amend. 6).

The record before us does not indicate whether petitioner was arrested before or after the May 19, 1969, indictment.

The mistrial occurred on March 5, 1970. From that date to July 26, 1973, the first burglary case was ripe for trial (i.e., no motion for new trial or appeal was pending).

In Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760, this court examined Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, where the Supreme Court of the United States identified four factors which it stated a court should weigh in deciding speedy trial questions, as follows: (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant. Cf. Hughes v. State, 228 Ga. 593(1), 187 S.E.2d 135. Regarding prejudice to the defendant, the court identified three interests to be served by the speedy trial requirement: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) most importantly, to limit the possibility that the defense will be impaired.

The delay involved in the case before us is strikingly similar to Barker.

In Barker v. Wingo, supra, Barker was arrested shortly after July 20, 1958, was indicted September 15, 1958, and was convicted October 9, 1963, a delay of over 5 years. The reason for the initial delay was that the prosecutor was seeking to obtain a valid conviction against a confederate so as to be able to compel the confederate to testify at Barker's trial. After several trials and appeals the confederate was finally convicted, but the investigating officer became ill, which further delayed Barker's trial for some seven months more. The Supreme Court viewed this illness as a valid reason for delay, viewed the tactic of trying the confederate first as permissible but viewed the four year delay awaiting valid conviction of the confederate as too long.

Barker did not object to the delay until February 12, 1962, a period of about 3 1/2 years, at which time he moved to dismiss the indictment but did not move for a speedy trial. Thereafter, he did not object to continuances sought by the prosecutor during the next year. After March 1963, when his confederate's convictions became final, Barker objected to continuances sought and obtained on the ground that the investigating officer was ill. He did not raise the speedy trial defense as such until the trial commenced in October, 1963.

Barker showed only minimal prejudice to himself. None of his witnesses were shown to be unavailable. He spent the first 10 months in jail, after which he was free on bond, yet under a four year cloud of suspicion and anxiety.

In the absence of serious prejudice, the Supreme Court remanded Barker to serve his sentence because that Court concluded he did not want a speedy trial. He hoped his confederate would be acquitted and that he would never be tried.

From Barker, we conclude as follows: an extraordinarily lengthy delay (factor one-five years), without valid reason (factor two-four years tactical delay), is overcome where no prejudice greater than 10 months in jail plus 4 years anxiety and suspicion is shown (factor four), and where the defendant did not want a speedy trial (factor three), i.e., where the defendant hoped that the delay would work to his benefit and that he would never be tried.

In the case before us, the extraordinary delay without reason shown by the record (see Treadwell v. State, supra) is overcome when no prejudice is shown and the petitioner did not want a speedy trial (he hoped he would never be tried). Although petitioner may have lived in anxiety and under a cloud of suspicion for over four years, he preferred that situation to going to trial. He does not appear to have been incarcerated for the 1969 burglary, at least not from the first mistrial in March 1970 until at least May 21, 1973 (so that his incarceration, if any on this charge, was comparable to Barker's 10 months).

He pled guilty (thereby acknowledging his guilt, the State's ability to prove his guilt, and the advantage to him of plea bargaining), and raised the speedy trial issue for the first time in this habeas corpus proceeding. At the habeas hearing, petitioner's attorney was unable to point to any way in which petitioner was prejudiced or his defense was impaired by the delay.

We conclude that petitioner did not want a speedy trial. Barker v. Wingo, supra. The trial court did not err in overruling this ground of the petition.

2. Petitioner contends that his two guilty pleas (the 1969 burglary and the 1973 arson) were improperly induced by the ineffectiveness of court appointed counsel. He alleges ineffectiveness in that he was denied a speedy trial as to the 1969 burglary and in that a motion to suppress evidence could have been made in the arson case as one had been made in the 1973 burglary trial. (The speedy trial contention has been resolved above.)

The evidence shows that following his conviction on July 25, 1973, petitioner, his wife and his attorney conferred at length on July 26 regarding pleading guilty to the other two charges. They discussed moving to suppress evidence in the arson case. (The petitioner had discussed the 1973 burglary with the district attorney in the absence of defense counsel under circumstances which suggested hope of benefit to petitioner; i.e., lack of voluntariness. As for the arson, the circumstances were not analogous.) Petitioner's attorney explained that success on the motion to suppress the confession made to the sheriff regarding the arson was very doubtful and further that the evidence against petitioner as to the arson was such that petitioner stood a substantial likelihood of being convicted. See McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763.

Petitioner also contends that his attorney coerced him into pleading guilty by threatening him with imposition of the maximum sentences for burglary and arson. The court below found that petitioner was told by his attorney the maximum sentences he could receive upon trial by jury.

Upon entering the two guilty pleas, petitioner stated, inter alia, that he was satisfied with the services of his attorney.

Petitioner's two pleas of guilty were knowingly and voluntarily entered and his attacks upon them are without merit.

3. The majority of petitioner's enumerations of error relate to his 1973 trial and conviction for burglary. Of these, one asserts that he was denied the right of appeal.

The court below made the following findings of fact: Petitioner's court appointed trial counsel did not advise petitioner of his right to appeal the jury conviction with the assistance of appointed counsel. At the habeas hearing, the attorney explained that he believed the trial record was free of reversible error, and that petitioner did not manifest dissatisfaction with the five year sentence. As noted above, petitioner pled guilty to additional charges the day after his conviction and jury sentence.

Petitioner learned of his appellate rights within two weeks of conviction and sent his wife to see the attorney about an appeal. Because of the explanation given above, the attorney did not seek appellate review.

In denying this ground of the petition, the court below considered Brown v. Holland, 228 Ga. 628(9), 187 S.E.2d 246, where the defendant sent his wife to see his attorney...