Shabazz v. State, A03A0006.
| Decision Date | 29 January 2003 |
| Docket Number | No. A03A0006.,A03A0006. |
| Citation | 259 Ga. App. 339,577 S.E.2d 45 |
| Parties | SHABAZZ v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Oliver R. Register, Atlanta, for appellant.
J. David Miller, District Attorney, James E. Hardy, James L. Prine II, Assistant District Attorneys, for appellee.
During a mass plea hearing in the Superior Court of Thomas County wherein nine defendants pled guilty to felony offenses of varying severity, sixteen-year-old Yusuf Shabazz pled guilty to the offenses of incest and statutory rape. Shabazz was given 20-year concurrent sentences on each count. He appeals, claiming that the record does not establish a factual basis for his plea to the crime of incest and that he received ineffective assistance of counsel during the entry of his plea. As the record, on its face, supports both contentions, we reverse.
1. A criminal defendant may pursue a direct appeal from a judgment of conviction and sentence entered on a guilty plea if the issue on appeal can be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.1 In that regard, the prosecutor stated the following as the sole factual basis for Shabazz's plea to the charges against him: However, a person commits the offense of incest when, in pertinent part, he engages in sexual intercourse "with a person to whom he knows he is related either by blood or by marriage as follows: Brother and sister of the whole blood or of the half blood."2 Sexual intercourse between a male and his stepsister is not included in the statutory crime of incest. The facts outlined by the prosecutor clearly fail as a matter of law to establish that Shabazz committed incest so as to provide an evidentiary basis for accepting a plea thereto.3 "Should a reviewing court ascertain that the record does not demonstrate a factual basis for the plea, the reviewing court is then required to determine whether withdrawal of the defendant's guilty plea is necessary to correct a manifest injustice."4
In this case, Count 2 of the indictment alleges that Shabazz had sexual intercourse with his "half sister," which allegation sets forth the crime of incest. During the plea hearing, however, the allegations of the indictment were not read, and the prosecutor claimed the evidence would show that Shabazz had sexual intercourse with his "step sister," which fact the prosecutor repeated twice. The prosecutor's statement is the only factual basis in the record in support of Shabazz's plea.5 Because the evidentiary facts of record do not show that incest was committed by Shabazz, we conclude that withdrawal of Shabazz's guilty plea to incest under Count 2 of the indictment is necessary in order to prevent a manifest injustice. To find otherwise would be to permit the State to establish a "factual basis" for a guilty plea merely through indictment. It is well settled that an indictment is not evidence.6
Further, we reject the State's contention that a sufficient factual basis exists for the plea simply because Shabazz, "above all, knows the victim was his half-sister." Such argument ignores the purpose for establishing a factual basis for a guilty plea on the record, i.e., "to insure that the conduct to which an individual admits actually constitutes the crime to which the individual pleads guilty."7 Here, no facts were presented other than the prosecutor's statement that Shabazz had sexual intercourse with his "step sister." Accordingly, there was no basis from which the trial court could discern that "the facts alleged by the state actually satisfied the elements of the charges to which [Shabazz] was pleading guilty."8 Reversal is required on Shabazz's conviction for the offense of incest.
2. Shabazz also claims he received ineffective assistance of counsel during his plea hearing because "counsel failed to effectively assist him during the taking of his plea."
[W]here, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. In challenging the competency of an attorney in a claim of ineffective assistance, a criminal defendant must show ... that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.9
With the advice and aid of trial counsel, Shabazz pled guilty to incest and received a 20-year sentence thereon. We have no difficulty in finding that, had counsel informed Shabazz that the State could not as a matter of law prove the offense of incest because—based on the prosecutor's statement of the evidence expected to be produced at trial—Shabazz's relationship to the victim was not included within the statutory scheme for such offense, he would not have pled guilty and would have insisted on going to trial. We find that advising and aiding Shabazz in the entry of a guilty plea to an offense for which as a matter of law there was no factual basis fall outside the range of competence demanded of attorneys in criminal cases. Accordingly, Shabazz did not enter his guilty plea with the aid of competent counsel.
In so finding, we are constrained to point out that the instant result could be seen as a reflection more upon the method in which the guilty plea hearing was conducted, than in the ultimate abilities of counsel. While a mass guilty plea hearing is not impermissible,10 the procedure followed in this case would appear ripe for error, especially in those cases involving felony offenses where, as here, lengthy sentences can be imposed. In this case, general, plea-related questions were asked of the defendants as a group and answers were given as a group by each defendant in seriatim; the prosecutor related, one after another, the fact bases for all of the defendants' pleas; and none of the defendants were individually questioned about waiver-related issues.11 Clearly, serial answers by multiple defendants to general court-imposed questions make it difficult to ascertain the veracity of the answers given by any individual defendant so as to fulfill the trial court's obligation to determine whether trial rights are knowingly and voluntarily waived.12 Further, serial factual scenarios in support of numerous counts of numerous indictments involving numerous defendants leave, as in this case, little room for evidentiary development...
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Adams v. State
...by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial. 5. To the extent Shabazz v. State, 259 Ga.App. 339, 340(1), 577 S.E.2d 45 (2003) holds to the contrary, it is hereby 6. Accordingly, we need not address the State's contention that appellant was no......
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...909 (evidence was sufficient concerning charge of incest between father and adoptive daughter, citing Edmonson ). In Shabazz v. State, 259 Ga.App. 339, 577 S.E.2d 45 (2003) (overruled on other grounds, Adams v. State, 285 Ga. 744, 748, 683 S.E.2d 586 (2009)), however, this Court held that s......
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... ... the greatest sentences, "undermine[d] the voluntariness and the validity of the plea as to [the remaining] counts of the indictment." Shabazz v. State, 259 ... Ga.App. 339, 342(3), 577 S.E.2d 45 (2003) (denial of effective assistance of counsel to defendant in entering guilty plea on incest ... ...
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...have been criticized. See Cazanas v. State, 270 Ga. 130, 508 S.E.2d 412 (1998) (Sears, J., concurring); Shabazz v. State, 259 Ga.App. 339, 341(2), 577 S.E.2d 45 (2003). But, group plea hearings are not per se impermissible. See Lamb v. State, 278 Ga.App. 97, 100(2), 628 S.E.2d 165 (2006). T......
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