King v. State, A97A0514

• Decision Date: 09 May 1997
• Docket Number: No. A97A0514,A97A0514
• Citation: 226 Ga.App. 576,486 S.E.2d 904
• Parties: , 97 FCDR 1977 KING v. The STATE.
• Court: Georgia Court of Appeals

Page 904

486 S.E.2d 904

226 Ga.App. 576, 97 FCDR 1977

KING v. The STATE.

No. A97A0514.

Court of Appeals of Georgia.

May 9, 1997.

Reconsideration Denied

May 29, 1997.

Certiorari Granted Jan. 8, 1998.

Dwight L. Thomas, Atlanta, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

McMURRAY, Presiding Judge.

Defendant Thelma Deloise King was charged in Accusation No. 96CR08533 with operating a motor vehicle "while her driver's license as issued by the [Georgia] Department of Public Safety ... was in suspension," and further charged in Accusation No. 96CR08534 with giving "a false name and false date of birth to a law enforcement officer in the lawful discharge of his duties with the intent of misleading him as to her identity." At her arraignment and without the benefit of counsel, defendant entered written non-negotiated guilty pleas. There is no transcript of that guilty plea hearing, although there is a detailed form containing defendant's separate plea statement as to each charge and the trial court's acceptance of the pleas, which we quote at length: ¹

"[X] I hereby enter my plea of [GUILTY] ... to this offense[, i.e., LICENSE--DRIVING SUSP/REV and GIVING A FALSE NAME]. I understand that I may plead not guilty to any charges against me. If I plead not guilty, the law gives me (1) the right to a speedy and public jury trial; (2) the right to see, hear and cross-examine all witnesses called against me; (3) the right to use the power of the court to subpoena witnesses and evidence to be used to defend me; (4) the right to have a lawyer to assist me at all stages of the proceedings; (5) that I do not have to testify or produce evidence against myself; (6) that I have the right to have the State prove my guilt beyond a reasonable doubt, and until that is done, I am presumed innocent. I understand that if I cannot afford to hire an attorney, that the Court may appoint an attorney to represent me without cost to me.

"I understand that the law provides that a sentence could be imposed that could include 12 month's imprisonment and a fine of up to $5,000.00. ² I also understand that by entering a plea of guilty or nolo contendere, the Court may sentence me as if I had stood trial and been [found guilty] by a jury. I understand that the Court may make my sentences run consecutively, that is, one after the other.

"[X] I understand that a lawyer may be able to discover a defense to the charge(s) pending against me, or could offer evidence which may aid insofar as sentencing is concerned. Nevertheless, I have read the accusation against me, understand the nature of the charges against me and the consequences of my plea, and I freely and voluntarily waive my right to counsel.

"My date of birth is 9-30-59 and I have 12 years of education.

"No one has made any promise of any kind to me, or within my knowledge, to anyone else that I will receive a lesser sentence or probation, or any form of leniency if I enter this plea. I am not under the influence of drugs or intoxicants of any kind. I understand that the Judge is not bound by any recommendation or negotiations. The Judge may impose a lesser sentence, a greater sentence, or may accept the recommendation.

"I am entering this plea freely and voluntarily, of my own accord, and with full understanding of all the matters set out in the accusation and in this plea statement, and this plea is done with the advice of and consent of counsel, if any.

"I have read and understand the above plea statement. I am signing this plea statement in the presence of the Court."

This document was signed on July 9, 1996, by "Thelma King, Defendant" and indicates that it represents a "[X] Non-negotiated Plea." At the foot of the document is a portion captioned "ACCEPTANCE OF PLEA," which recites: "The above statement having been made by the Defendant in the presence of the Court, the foregoing rights afforded the Defendant having been personally read to the Defendant by the Court, the Court being satisfied that the defendant understands all rights applicable to him/her, all the consequences of his plea, that the plea is entered knowingly, freely and voluntarily, and there having been a sufficient factual basis shown for the acceptance of this plea, IT IS HEREBY ORDERED that defendant's plea be accepted." (Emphasis by hand in original.) This is signed by the Judge of the State Court of Clayton County, Georgia, on July 9, 1996.

At the bottom of defendant's plea statement for Accusation No. 96CR08533 (driving while license suspended), under the portion captioned ACCEPTANCE OF PLEA appears the hand-written notation "Suspended for no ins. & VGCSA...." At the bottom of Accusation No. 96CR08534 (giving a false name) appears the handwritten notation "Used false name on tickets in '92--had purse lost in 91 of victim...."

For giving a false name and date of birth to a law enforcement officer, defendant was not fined but sentenced to twelve months confinement. For driving while her license was in suspension, defendant was fined $500 plus $50 court costs, and ordered to serve six months consecutive to Accusation No. 96CR08534, provided that the additional six months confinement would be probated upon payment of the fine and costs.

The next day, with the assistance of counsel, defendant moved to withdraw her guilty pleas, contending that they were not free and voluntary. At a hearing, defendant testified that she did not personally make the check marks on the forms for entering her guilty pleas, whereupon the State's Attorney stipulated "I did that. It's my handwriting." It was further stipulated that the State's Attorney "did not make a plea recommendation to her [defendant], nor did she [defendant] ask for one." Defendant could not remember everything that occurred at her arraignment, and she denied the State's attorney "explain[ed] this document, this form [plea statement], to [her]." Defendant also claimed she "didn't understand it[,]" when the State's Attorney informed defendant that she [defendant] was signing a statement of her rights that the Judge would go over with her in a minute. Defendant thinks she has a problem with her hearing.

On cross-examination, defendant testified that she either didn't hear or didn't understand when the trial court made its own inquiry of defendant's understanding of the rights she was waiving by pleading guilty. Defendant did affirm, however, that "the only time [she] asked for an attorney was after sentence had been pronounced, [i.e.,] after the Judge told [defendant] that [she was] going to jail." For the record, the trial court stated: "The Court did not just sign that document, just blindly sign the document. The Court, in fact, did go through each and every portion of this plea statement with [defendant]."

The trial court further recited: "A factual basis was provided to the Court, as indicated on the plea statement. For the suspended license, the factual basis apparently was that her license had been suspended for ... no insurance and a V.G.C.S.A. conviction prior to the date that she received these tickets.... Also on the giving a false name, the factual basis was that when she received tickets on December 29th of 1992, she used the name of another person whose identification she had in her possession, that she went all the way through the court process in 1992 using that person's name--the name was Jacqueline Rogers--that that person eventually found out that her license had been suspended because [defendant] had used her name on the charges that she pled guilty to in 1992 using Ms. Rogers name, and that that is how these new charges were drawn, because it came to the Solicitor's attention that [defendant] was not Ms. Rogers in 1992 when she used that name, that Ms. Rogers' pocketbook had been lost in 1991; and somehow apparently [defendant] came into possession of her identification and was using it in '92 at the time that she used the false name, not only to the officer on the tickets, but all the way through the court process. So that factual basis was provided by the Solicitor in the hearing of [defendant]."

Defendant's motion to withdraw her guilty pleas was denied and this appeal followed. In four related enumerations, defendant contends her guilty pleas are invalid. Held:

1. Due process of law requires "that there be a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea." Goodman v. Davis, 249 Ga. 11, 13, 287 S.E.2d 26. "After a prisoner raises the question of the validity of his plea of guilty, the burden is on the [S]tate 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(1), 211 S.E.2d 764. Uniform State Court Rule 33.11 specifies: "A record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include: (A) the inquiry into the voluntariness of the plea (as required by section 33.7); (B) the advice to the defendant (as required in section 33.8); (C) the inquiry into the accuracy of the plea (as required by section 33.9); and, if applicable; (D) the notice to the defendant that the trial court intends to reject the plea agreement and the defendant's right to withdraw the guilty plea before sentence is pronounced." Although no enumeration of error is predicated upon the circumstance that the...