Nash v. State
Citation | 519 S.E.2d 893,271 Ga. 281 |
Decision Date | 06 July 1999 |
Docket Number | No. S98G1663.,S98G1663. |
Parties | NASH v. The STATE. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Pete & Associates, Anthony T. Pete, Athens, for appellant.
Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee. HUNSTEIN, Justice.
A jury found Nash guilty of aggravated assault. At his sentencing hearing, the State introduced for purposes of recidivist punishment, see OCGA § 17-10-7, a certified copy of a guilty plea Nash had entered to a prior felony. Nash objected to the admission of the guilty plea on the ground that the plea had not been entered into knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The State was not able to produce the transcript of the earlier plea hearing and instead adduced the testimony of the prosecutor, present when Nash pled guilty, that it was the usual practice of that trial court to accept only those guilty pleas that were knowingly and voluntarily entered. Nash was sentenced as a recidivist and appealed his conviction to the Court of Appeals, which affirmed. Nash v. State, 233 Ga.App. 75, 503 S.E.2d 23 (1998). We granted certiorari to consider whether Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) applies to collateral attacks on final judgments in Georgia so as to place the burden of production on the recidivism defendant rather than the State when the defendant seeks under Boykin v. Alabama, supra, to challenge the validity of a prior guilty plea used to enhance a sentence pursuant to OCGA § 17-10-7(a). While we recognize that our opinion in Pope v. State, 256 Ga. 195(17), 345 S.E.2d 831 (1986) represented the controlling case law on this issue, this Court now overrules Pope to follow Parke v. Raley in holding that the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered.1
In Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. 1709, the United States Supreme Court held that a silent record cannot be used to establish that a guilty plea was knowingly and voluntarily made and that the burden rested on the State to "spread on the record the prerequisites of a valid waiver" of the important rights implicated by a defendant's plea of guilty. Boykin, however, involved the direct appeal the defendant filed from the guilty plea conviction itself.
Id. at 29, 113 S.Ct. 517. Looking to state courts' established practice of nearly a quarter century's duration in utilizing the Boykin colloquies in guilty plea proceedings, id. at 30, 113 S.Ct. 517, the Parke Court determined there was no reason to suspend the presumption of regularity in such proceedings, stating that it "defies logic to presume from the mere unavailability of a transcript... that the defendant was not advised of his rights." Id. at 30, 113 S.Ct. 517. Thus, the Parke Court concluded that "[i]n this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained." Id.
Accordingly, the Parke Court recognized that Id. at 31, 113 S.Ct. 517. The Court conducted a survey of practices among the state courts and found that they allocated proof burdens differently, with some placing the full burden on the prosecution, some assigning the entire burden to the defendant once the government has established the fact of conviction, and others taking a "middle ground," namely, one that Id. at 33, 113 S.Ct. 517. The Parke Court did not find any of these practices constitutionally infirm, id. at 33-34, 113 S.Ct. 517, and concluded by holding that "the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin." Id. at 34, 113 S.Ct. 517.
In the years since Parke v. Raley was rendered, this Court has repeatedly applied and reaffirmed our holding in Pope v. State, supra, but always in the context of the sentencing phase of a death penalty case. See, e.g., Mize v. State, 269 Ga. 646(15), 501 S.E.2d 219 (1998) ( ); Waldrip v. State, 267 Ga. 739(21), 482 S.E.2d 299 (1997) ( ); Bright v. State, 265 Ga. 265(20), 455 S.E.2d 37 (1995) ( ); Spencer v. State, 260 Ga. 640(10), 398 S.E.2d 179 (1990) ( ); Potts v. State, 259 Ga. 96(14), 376 S.E.2d 851 (1989) ( ). Since Parke v. Raley was rendered, the Court of Appeals has also correctly followed the controlling authority Pope represented in cases such as Postell v. State, 233 Ga.App. 800(3), 505 S.E.2d 782 (1998), decided 11 weeks after Nash, supra; Manker v. State, 223 Ga.App. 3(5), 476 S.E.2d 785 (1996); Dowdy v. State, 209 Ga.App. 95(3), 432 S.E.2d 827 (1993).
The appeal in Nash presents this Court with the first opportunity to consider the application of our holding in Pope to non-death penalty cases in light of Parke v. Raley. Because Parke holds that Boykin does not require that the entire burden be placed on the State in sentence enhancement proceedings and because our present system of placing the entire burden on the State, as exemplified in Pope, fails to give any presumption of regularity to a final conviction used in proceedings to enhance a sentence pursuant to OCGA § 17-10-7(a), we today overrule Pope and conclude that the burden of production is on the recidivism defendant rather than the State when the defendant seeks under Boykin v. Alabama, supra, to challenge the validity of a prior guilty plea used to enhance a sentence in such proceedings. See State v. Shelton, 621 So.2d 769, 779 (La.1993).
In concluding that the recidivism defendant carries the burden of production in a collateral attack on a final judgment, we follow Parke v. Raley in relying on the presumption, long recognized in Georgia, in favor of the regularity and legality of all proceedings in the courts below. Grinad v. State, 34 Ga. 270, hn. 1 (1866). See also Bridges v. State, 227 Ga. 24(2), 178 S.E.2d 861 (1970); Newton v. Newton, 222 Ga. 175, 149 S.E.2d 128 (1966); Jones v. State, 226 Ga.App. 608, 487 S.E.2d 89 (1997). We also recognize the well-established practice by our State courts in utilizing the Boykin colloquies, see Uniform Superior Court Rules 33.7, 33.8, 33.9, 33.11, as well as our appellate courts' strict enforcement of those practices. See, e.g., King v. State, 270 Ga. 367, 509 S.E.2d 32 (1998); Knight v. Sikes, 269 Ga. 814, 504 S.E.2d 686 (1998). Given the presumption of regularity together with the conscientious application of Boykin in guilty plea proceedings, we agree with the Parke Court that it "defies logic" to presume that a defendant was not advised of his rights from the mere unavailability of a transcript, id., 506 U.S. at 30,113 S.Ct. 517, and thus we conclude that Boykin does not prohibit the courts of Georgia from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained. Parke, supra, 506 U.S. at 30,113 S.Ct. 517.
This determination requires us to revise our previous scheme regarding the allocation of burdens of proof. In...
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