Hooten v. State

• Decision Date: 15 March 1994
• Docket Number: A93A2497,Nos. A93A2206,s. A93A2206
• Parties: HOOTEN v. The STATE. BEARD v. The STATE.
• Court: Georgia Court of Appeals

Page 836

442 S.E.2d 836

212 Ga.App. 770

HOOTEN v. The STATE.

BEARD v. The STATE.

Nos. A93A2206, A93A2497.

Court of Appeals of Georgia.

March 15, 1994.

Reconsideration Denied April 1, 1994.

Donald C. Turner, Roswell, for Hooten.

Banks & Stubbs, Rafe Banks, III, for Beard.

Louise T. Hornsby, D. Terry Stringer, Sols., James A. Ward, Asst. Sol., for State.

BIRDSONG, Presiding Judge.

Although they are unrelated factually, we have consolidated these appeals because each is based upon the reservation of issues for appeal under our decision in Mims v. State, 201 Ga.App. 277, 279, 410 S.E.2d 824: James L. Hooten appeals his conviction for DUI after entering a conditional guilty plea in Fulton County Traffic Court/City Court of Atlanta, and Jerry Wayne Beard appeals his conviction of DUI following his conditional plea of nolo contendere. The records show the trial courts approved Hooten's and Beard's conditional pleas. Held:

1. In Mims we sought to establish procedures for what until then had been the informal practice of allowing criminal defendants to plead guilty while reserving the opportunity to raise on appeal rulings by the trial court which ordinarily would be waived by the plea. See Mims, supra at 278, 410 S.E.2d 824. Otherwise, a plea of guilty generally waives all defenses or objections, known or unknown, other than an appellate issue of whether the plea was voluntarily made and accepted, and in strictly limited circumstances, appellants "may go behind the plea to show some supervening illegality of overwhelming proportions." Addison v. State, 239 Ga. 622, 624, 238 S.E.2d 411. This exception concerns errors that go " 'to the very power of the state to bring the defendant into court to answer the charge brought against him.' " Id. "As recognized in Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628, an unconditional guilty plea does not preclude appeal of a claim of error grounded upon the 'right not to be haled into court at all,' that is, jurisdictional and generally double jeopardy-type errors. Moreover, Blackledge, supra, re-affirms that other claims of error, including claims of ' "antecedent constitutional violations" or of a "deprivation of constitutional rights that occurred prior to the entry of the guilty plea" ' will not be appealable following acceptance of the unconditional guilty plea. Thus, it appears that while a claim of constitutional double jeopardy or lack of jurisdiction (and perhaps a claim of violation of Georgia's procedural double jeopardy provisions) generally would survive an unconditional plea of guilty, Addison, supra, other non-jurisdictional defects in pretrial proceedings, whether or not of constitutional magnitude, could not be asserted on appeal. Blackledge, supra; Harris v. Hopper, 236 Ga. 389, 391, 224 S.E.2d 1; compare Fuller v. State, 182 Ga.App. 614, 356 S.E.2d 554." Springsteen v. State, 206 Ga.App. 150, 154, 424 S.E.2d 832 (dissent).

Now, after over two years' experience under the Mims procedures, we have concluded that Mims did not achieve the result intended. Instead, these procedures have caused the diversion of judicial resources to consideration of such extraneous issues as whether the trial court tacitly approved the reservation of issues for appeal (see Springsteen, supra), or approved reservation of issues by absence of indication of disapproval (see Ballew v. State, 206 Ga.App. 631, 426 S.E.2d 254), rather than "expressly approves the reservation of the issue and accepts the guilty plea with that condition." Mims, supra, 201 Ga.App. at 279, 410 S.E.2d 824.

Further, in Parker v. State, 211 Ga.App. 187, 191, 438 S.E.2d 664, we were again diverted to whether the trial court exercised its discretion properly under Mims, and because of ambiguity in the record, we remanded for a plea hearing at which the trial court could "clearly " do so. See also Granger v. State, 205 Ga.App. 483, 423 S.E.2d 20, in which we considered whether the State had consented to the conditional plea because the State contended on appeal that it had not done so. It was not our intention in Mims to create new types of appellate issues, and, of course, none of these issues would have arisen without the conditional appeals procedures.

Additionally, Mims has led to further expansion of conditional pleas to conditional pleas of nolo contendere (see Harmon v. State, 206 Ga.App. 333, 425 S.E.2d 343), and conditional guilty pleas in which First Offender Act status was granted. See Springsteen, supra. Because of the significant other benefits received by entering a nolo contendere plea or receiving first offender status, we do not believe it appropriate to confer the additional benefit of a conditional plea. Although not a guilty plea, a nolo contendere plea is the equivalent of a guilty plea except that it cannot work civil disqualifications; it is an assertion by the defendant that he does not wish to contest the truth of the charges against him. Fortson v. Hopper, 242 Ga. 81, 82-83, 247 S.E.2d 875. See also OCGA § 17-7-95. If a defendant does not wish to contest the charges against him in the trial court and enters a nolo contendere plea, we discern no valid reason for allowing that defendant to adopt a different posture on appeal so that he can then contest the charges against him. In first offender status cases, we perceive no benefit in allowing a plea which entitles an accused to a probationary period that could lead to expunging the record of his conviction while at the same time permitting him to engage in a tactic which allows him to contest this plea. A guilty plea has an important relationship to rehabilitation that should not be so easily dismissed.

Perhaps more significantly, however, conditional guilty pleas inherently demand that we disregard other important rules of appellate practice such as assuring the issue was raised and preserved properly in the trial court; not acquiesced in, waived, or induced; and, in particular, whether the error resulted in prejudice to the party claiming error. Instead, errors preserved by conditional pleas are considered in the abstract and without regard for the context in which the error was or would have been asserted if there had been a trial. Thus, in Harmon, supra, an appeal from a conditional nolo contendere plea, this court considered the trial court's pretrial ruling on a requested charge even though evidence was yet to be presented, the trial court did not grant the requested charge and, ultimately, no charge was ever given because of the plea. In the same manner, in Ballew, supra 206 Ga.App. at 632-633, 426 S.E.2d 254, we vacated Ballew's convictions based upon his guilty pleas to driving under the influence of alcohol, possessing alcohol by consumption by a minor, running a red light, and manufacturing a false government identification document, and remanded the case to the trial court to consider conflicts in the evidence on whether Ballew requested an independent blood test. We did not address, however, whether the error asserted affected Ballew's convictions of the other offenses.

More significantly, conditional guilty pleas vitiate the harmless error rule; because no trial took place, there is no way to determine whether the error asserted resulted in prejudice to the appellant. Thus, there have been reversals in some cases even though the appellants have failed to show that they were harmed. Our Supreme Court explained the basis for the harmless error rule in criminal cases in this manner: " 'When a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.' " Hall v. State, 202 Ga. 619, 620, 44 S.E.2d 234. Conditional pleas, however, inevitably result in consideration of errors which have not practically wronged the appellant. Because there is no way to test for harm when errors preserved by conditional pleas are reviewed, we have, in effect, presumed prejudicial, reversible error when a full trial record might show only harmless error. Moreover, none of the purported errors asserted in these appeals has, in fact, harmed any of these appellants because they all entered pleas admitting or not contesting their guilt. While it might be argued that the effect of the trial courts' rulings in these cases caused the defendants to plead guilty, there are means available to challenge erroneous rulings of the trial court without using a conditional plea and none of the appeals reviewed so far has sought to set aside the guilty pleas on the grounds such pleas were involuntarily entered.

Further, conditional guilty pleas encourage a "sporting" view of criminal law that we refuse to allow in other situations. Appellants are not usually allowed to gamble on favorable results by refusing to challenge perceived erroneous rulings by the trial court with the expectation that they can achieve a more favorable result on appeal. See Nelson v. Miller, 169 Ga.App. 403, 405, 312 S.E.2d 867. Nor do we allow appellants to submit to rulings or acquiesce in holdings and then complain of the same rulings on appeal. See Whisnant v. State, 178 Ga.App. 742, 744, 344 S.E.2d 536. If appellants want to plead guilty they should do so, but they should not be allowed to plead guilty and still contest their guilt. Our current practice of permitting conditional pleas, however, unwisely allows them to do both, which perhaps explains why at least one appellant has entered two conditional guilty pleas. See Claffey v. State, 211 Ga.App. 335, 439 S.E.2d 516; Claffey v. State, 209 Ga.App. 455, 433 S.E.2d 441.

Further, allowing conditional pleas deprives trial courts of the opportunity to correct their own rulings since many conditional pleas follow the denial of some specie of motions in limine. As the trial court can modify a ruling on a motion in limine...