Haneef Abdul Raheem v. State , 339 Ga. App. 859 ( 2016 )

WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
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November 16, 2016
In the Court of Appeals of Georgia
A16A1362, A16A1363. RAHEEM v. THE STATE.
BARNES, Presiding Judge.
In these companion appeals, the trial court granted Haneef Abdul Raheem’s
motions for out-of-time appeals of his 1981 conviction for motor vehicle theft and his
1982 burglary conviction. Following our review and finding that the record does not
establish that he was fully advised of his rights under Boykin v. Alabama, 395 U. S.
238, 243-244 (89 SCt 1709, 23 LE2d 274) (1969), we reverse the convictions.
In Raheem v. State, 333 Ga. App. 821 (777 SE2d 496) (2015) (Raheem I),
Raheem appealed from the trial court’s denial of his motion for out-of-time appeals
of his 1982 conviction for burglary, 1981 conviction for motor-vehicle theft, and
1985 conviction for armed robbery. The relevant facts as presented in Raheem I
establish that
[i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run.
The next year, he pleaded guilty to burglary, and in 1985, to armed
robbery. Decades later, in 2013, Raheem filed a pro se motion for an
out-of-time appeal from all of these convictions, arguing that his guilty
pleas were involuntary because, in each plea proceeding, he was not
advised of his right to a jury trial, his right to confront the witnesses
against him, or his right against self-incrimination. Raheem further
argued that the essential elements of each of his offenses were not
explained to him prior to entering his guilty pleas. . . . Raheem
contend[ed] that he is entitled to an out-of-time appeal from each
conviction because his guilty pleas were not knowing and voluntary and
neither the trial court nor his trial counsel advised him of his limited
appellate rights. The State moved to dismiss Raheem’s motion, arguing
that, as to at least two of his cases, the plea transcripts show that his
guilty pleas were indeed freely and voluntarily entered. The trial court
denied the State’s motion, noting that there were no transcripts of any
of Raheem’s plea hearings. Raheem then amended his motion for an
out-of-time appeal, reiterating the arguments he made in his original
motion and asserting that his failure to file a timely appeal in each case
was due to ineffective assistance of counsel, rather than any fault of his
own. Thereafter, Raheem was appointed counsel to represent him at the
hearing on his motion.
(Footnote omitted.) 333 Ga. App. at 822.
Following a hearing on his motion for an out-of-time appeal, the trial court
found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for
appeal because there was no evidence that, during the plea proceedings, he was
informed of his right to confront his accusers or his right against compulsory
self-incrimination,” but found that the record demonstrated that the plea in the 1985
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case was knowing and voluntary. Raheem I, 333 Ga. App. at 822-823. The trial court
then “found that Raheem was not entitled to an out-of-time appeal from any of his
convictions because he had not shown that he was prejudiced. . . . [because] there was
no evidence that the result of the proceedings would have been different if Raheem
had taken his case to trial rather than pleading guilty.” Id. at 823.
Raheem appealed the denial of his motion. In Raheem I, we affirmed the trial
court’s denial of Raheem’s motion for an out-of-time appeal of the 1985 armed-
robbery conviction. 336 Ga. App. at 827-828 (2). We further agreed with the trial
court that the record demonstrated that during Raheem’s 1981 and 1982 plea
proceedings, he was only advised of one of the three constitutional rights he was
waiving by pleading guilty pursuant to Boykin, namely, the right to a jury trial, but
not informed of his right against self-incrimination or the right to confront his
accusers. Raheem I, 333 Ga. App. at 824-825 (1). However, we reversed the trial
court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and
1982 convictions, upon finding that the trial court had denied the motion “without
resolving the determinative issue of whether the failure to pursue a timely direct
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appeal was attributable to trial counsel or to Raheem himself.”1 (Footnotes omitted.)
Id. at 826 (1). We “remand[ed] the case with direction that the court conduct the
requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding
who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.”
Id.
Upon remand, and following a hearing, the trial court found that Raheem’s
failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his
attorney’s failure to advise him that he had the right to appeal and that he had a
legitimate issue for appeal, given that the record failed to establish that he was
informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s
motion for an out-of-time appeal of the two convictions.
1. Although the State contends that the trial court erred in granting Raheem’s
motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an
out- of-time appeal are not before us. Tyner v. State, 289 Ga. 592, 594 (3) (714 SE2d
1
“An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State, 276
Ga. 525, 526 (579 SE2d 735) (2003). “The disposition of a motion for out-of- time
appeal hinges on a determination of who bore the ultimate responsibility for the
failure to file a timely appeal.”(Citations omitted.) Glass v. State, 248 Ga. App. 91,
92 (1) (545 SE2d 360) (2001).
4
577) (2011), overruled in part on other grounds, Lejeune v. McLaughlin, 296 Ga. 291,
297 (2) (766 SE2d 803) ( 2014). There is “no basis for the State to appeal the order
granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in
this case] it did neither. See OCGA § 5-7-1 (limiting the matters the State may appeal
in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at
594 (3). 2
2. Raheem raises identical arguments on appeal in cases A16A1362 and
A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were
not knowingly and voluntarily entered because he was not informed of the
constitutional rights required under Boykin before he entered his plea. Raheem asserts
that the State did not meet its burden of establishing by the record that he was advised
of the three Boykin rights he was waiving by pleading guilty.
The entry of a guilty plea involves the waiver of three federal
constitutional rights: the privilege against compulsory
self-incrimination, the right to trial by jury, and the right to confront
one’s accusers. It is the duty of a trial court to establish that the
2
We disapprove of the following cases to the extent that they could be relied
upon to stand for the proposition that the State can timely appeal from an order
granting an out-of-time appeal: Fineza v. State, 255 Ga. App. 835 (567 SE2d 17)
(2002); Towns v. State, 228 Ga. App. 267 (491 SE2d 497) (1997).
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defendant understands the constitutional rights being waived, and the
record must reveal the defendant’s waiver of those constitutional rights..
. . . [A]ny defendant who pleads guilty will be able to secure a reversal
of his conviction if the record does not show that he was specifically
advised of each of the three Boykin rights and he properly presents the
issue to a reviewing court. Nevertheless, our Supreme Court has
recognized that nothing in Boykin requires the State during a guilty plea
proceeding to use any precisely-defined language or ‘magic words.
(Citations and punctuation omitted.) Childs v. State, 311 Ga. App. 891, 891-892 (1)
(717 SE2d 509) (2011). The State bears the burden on direct review to establish that
the plea was knowingly and voluntarily entered. King v. State, 270 Ga. 367, 369 (509
SE2d 32) (1998).
The State will meet its burden of proof if it introduces a “perfect”
transcript of the taking of the guilty plea, one which reflects a colloquy
between judge and defendant wherein the defendant was informed of
and specifically waived his right to trial by jury, his privilege against
self incrimination, and his right to confront his accusers. If the State
introduces anything less than a “perfect” transcript, the judge then must
weigh the evidence submitted by the defendant and by the State to
determine whether the State has met its burden of proving that
defendant’s prior guilty plea was informed and voluntary, and made with
an articulated waiver of the three Boykin rights.
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(Citation and punctuation omitted.) Nash v. State, 271 Ga. 281, 285 (519 SE2d 893)
(1999).
Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In
both cases, there is a pre-printed form included in the record labeled “Transcript.”
The only Boykin right acknowledged on the form is the right to a jury trial. Trial
counsel for the 1982 plea testified that “the Boykin rights weren’t specifically
considered at that time because the court system was unaware of it or didn’t use the
Boykin case in their plea process.” The State concedes that the record on its face does
not demonstrate that Raheem was advised of and waived all three Boykin rights, but
asserts that any such deficiency was harmless because Raheem never claimed that he
would have chosen to go to trial instead of taking a plea, had he be fully advised of
all of his Boykin rights.3
Regardless of the practices in place at that time,
[t]he requirement that a plea of guilty must be intelligent and voluntary
to be valid has long been recognized. Rather, the procedural element
added in Boykin was the requirement that the record must affirmatively
3
The State asserts this argument within the context of its claim that trial
counsel was not ineffective and thus that the motion for the out-of-time appeals
should not have been granted. As noted in Division 1, any challenge to that order is
not before us on review.
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disclose that a defendant who pleaded guilty entered his plea
understandingly and voluntarily. Thus, Boykin imposed a constitutional
record-keeping requirement on the states if they hoped to insulate state
guilty pleas from future attacks on federal constitutional grounds.
(Footnotes and punctuation omitted; emphasis supplied.) Wiley v. Miles, 282 Ga. 573,
575-576 (2) (652 SE2d 562) (2007) (establishing that Boykin applies to guilty pleas
entered after June 2, 1969).
Our appellate courts have “interpreted this advice and waiver of the three
Boykin rights as a strict constitutional requirement, with reversal the automatic
consequence if any deviation is found to have occurred.”Tyner, 289 Ga. at 595 (4).4
Here it is undisputed that the record does not disclose that Raheem was advised of his
right against self-incrimination or the right to confront witnesses.
Accordingly, because Raheem was not a fully advised of the rights
he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not
4
Per the holding in Lejeune v. McLaughlin, 296 Ga. 291 (766 SE2d 803)
(2014), the burden now shifts in habeas corpus cases to the defendant to prove that
his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune
remotely suggesting that the State no longer has the burden of demonstrating, in the
context of a direct appeal from a judgment of conviction, that a defendant’s guilty
plea was voluntary, knowing, and intelligent.”Raheem I, 333 Ga. App. at 821 (1) n.
13.
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substantiate that his pleas were knowingly and voluntarily. Thus, his guilty pleas are
invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to
the trial court for further proceedings consistent with this decision. See Vera v. State,
329 Ga. App. 177 (764 SE2d 427) (2014).
Judgments reversed. Doyle, C.J., Andrews, P.J., Miller, P.J., Ellington, P.J.,
and Phipps, PJ., Dillard, McFadden, Boggs, Ray, Branch, McMillian, and Peterson,
JJ concur. Rickman, and Mercier, JJ concur in judgment only.
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