Thompson v. State , 276 Ga. 701 ( 2003 )

CARLEY, Justice,

dissenting.

I respectfully submit that the majority erroneously bases its decision entirely on a misreading of the State’s “concession” regarding Thompson’s prior habitual violator convictions and on a misunderstanding of the trial court’s statement with respect to its use of those convictions.

The prosecutor did not concede that the previous convictions could not be considered at all in the setting of the sentence in this case. Instead, he contended that those convictions were admissible for the purpose of determining how much of the sentence should be probated. Indeed, prior convictions are admissible for that purpose if they are constitutionally valid even if they cannot be used to lengthen a subsequent sentence. Stillwell v. State, 161 Ga. App. 230, 232 (288 SE2d 295) (1982). See also Dotson v. State, 179 Ga. App. 233, 234 (3) (345 SE2d 871) (1986). If, on the other hand, prior convictions are constitutionally invalid due to the denial of assistance of counsel, they clearly are not admissible even in determining the amount of probation. Stillwell v. State, supra; People v. McIntosh, 695 P2d 795, 798 (Colo. App. 1985). Therefore, the Assistant District Attorney could not have meant that Thompson was denied his constitutional right to counsel during the guilty pleas which resulted in the prior habitual violator convictions.

Furthermore, the context of the entire colloquy shows that counsel for the State did not admit that there was a constitutional deprivation of the right to counsel with respect to the guilty pleas. The trial court clearly did not understand the prosecutor’s concession in that way because it questioned defense counsel as to whether he was contending that Thompson was not aware of his right to counsel. Thompson’s lawyer responded that there was no evidence that Thompson knowingly, intelligently, and voluntarily waived his right to counsel. Thus, the trial court’s ensuing reliance on the certification of the convictions can be taken to mean only that Thompson’s written waivers of the right to an attorney constituted admissible evidence of the waiver. Contrary to defense counsel’s assertion, the only evidence which was absent was any rebuttal by the' defendant of the written waivers of counsel.

Notwithstanding the conclusory analysis of the majority, nothing in the trial court’s oral ruling during the sentencing hearing indicates that it considered the prior convictions in fixing the length of Thompson’s sentence. See Williams v. State, 165 Ga. App. 553, 554 (3) (301 SE2d 908) (1983). To the contrary, the trial court wanted to impose a sentence which would be stronger than was the probation of the entirety of the three previous sentences. The length of each of those prior sentences was five years. In making a stronger sentencing decision, the trial court could not and did not use the previous convictions to lengthen the sentence beyond five years. OCGA § 40-5-58 (c) (providing for a maximum of five years imprisonment). Thus, the trial court utilized the convictions in deciding to probate only a portion of the current five-year sentence and thereby to strengthen it beyond the prior sentences in the sole way which the law permitted. The trial court’s oral ruling can be read only to mean that, after reviewing the previous habitual offender convictions, it would not consider giving Thompson yet another fully probated sentence. See Williams v. State, supra. Accordingly, the trial court’s ruling, as well as its previous comments, show that it understood that the prosecutor was requesting consideration of the prior convictions in determining the amount of probation and that he was not admitting to the trial court that Thompson had ever been deprived of his constitutional right to counsel. Moreover, even if the assistant district attorney did concede the existence of such a constitutional deprivation, the trial court was not bound by that concession. Young v. State, 214 Ga. App. 585, 586 (448 SE2d 477) (1994).

Through its erroneous construction of the prosecutor’s concession, the ensuing colloquy and the trial court ruling, the majority has failed to answer the question we asked when we granted certiorari in this case. Thompson contends that, under the federal and state constitutional guarantees of the right to counsel, the presumption of regularity in Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992) and Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999) should not apply when a guilty plea is collaterally attacked on the basis of a denial of counsel to an indigent defendant in violation of Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963). However, both state and federal courts have consistently and repeatedly applied Parke in placing on the defendant at least some burden of proving a Gideon violation in order to make a collateral attack on a prior conviction. United States v. McVay, 32 Fed. Appx. 661, 664 (II) (A) (4th Cir. 2002); Cuppett v. Duckworth, 8 F3d 1132, 1137-1138 (II) (7th Cir. 1993); State v. Okland, 941 P2d 431, 434-436 (Mont. 1997); State v. Patterson, 939 P2d 909 (Kan. 1997); State v. Brown, 676 A2d 350, 355 (IV) (Vt. 1996). Furthermore, this Court has already held that the presumption of regularity applies when the State carries its initial burden of proving the existence of the prior guilty pleas and that the defendant either was represented by counsel or waived the right to counsel “by adducing ‘a docket entry or other affirmative statement’ ” to that effect. Nash v. State, supra at 285. Because the record shows affirmative waivers of the right to counsel in each prior guilty plea, and because Thompson did not offer any evidence whatever in rebuttal, the Court of Appeals correctly held that his “mere naked assertion that the earlier pleas were constitutionally infirm is simply not enough to prohibit the consideration of the prior convictions. [Cits.]” Thompson v. State, 256 Ga. App. 776, 783 (9) (569 SE2d 884) (2002). Accordingly, I dissent to the reversal of the Court of Appeals’ judgment and to the remand of this case for resentencing.

Decided June 30, 2003. Kevin R. Gough, for appellant. Stephen D. Kelley, District Attorney, Charles K. Higgins, Gregory C. Perry, Assistant District Attorneys, for appellee.