Nash v. State , 271 Ga. 281 ( 1999 )

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 SC 1709, 23 LE2d 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 SE2d 23) (1998). We granted certiorari to consider whether Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 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 SE2d 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, 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.

In an attempt to comply with Boykin, this Court held in Pope v. State, 256 Ga. at 209 (17), in regard to the sentencing phases of death penalty trials, that

[a] plea of guilty that is invalid under Boykin may not be used to enhance punishment in a subsequent trial. . . . [W]e conclude that once the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.

Subsequent to Pope, the United States Supreme Court rendered its opinion in Parke v. Raley, supra, addressing the question whether due process permitted Kentucky to place the burden of proof on recidivism defendants to attack previous convictions based on guilty pleas as invalid under Boykin, supra. The Parke Court, however, found Boykin inapplicable in such collateral proceedings. The Parke Court held that

Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. [Raley], however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. [Cit.]

Id. at 29. 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, 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. 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 “even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. [Cit.]” Id. at 31. 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 “requires the defendant to produce evidence of inválidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. [Cits.]” Id. at 33. The Parke Court did not find any of these practices constitutionally infirm, id. at 33-34, 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.

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 SE2d 219) (1998) (State has burden of proving a valid waiver before conviction may be used in aggravation of sentence during the sentencing phase of death penalty case); Waldrip v. State, 267 Ga. 739 (21) (482 SE2d 299) (1997) (guilty plea convictions were adequate on their face to prove voluntariness; misstatement by prosecutor regarding who had burden of proving'voluntariness of guilty plea conviction was properly cured by trial court’s instruction that burden of proof rests with State); Bright v. State, 265 Ga. 265 (20) (455 SE2d 37) (1995) (citing Pope, supra, holds that failure to object waived any problem with State’s proving the voluntariness of collateral guilty plea convictions); Spencer v. State, 260 Ga. 640 (10) (398 SE2d 179) (1990) (voluntariness of plea could be determined from evidence adduced by State although no Pope objection had been raised to admission of plea); Potts v. State, 259 Ga. 96 (14) (376 SE2d 851) (1989) (in absence of trial transcript, requirement of Pope satisfied by testimony of witnesses from original trial to prove commission of crime). 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 SE2d 782) (1998), decided 11 weeks after Nash, supra; Manker v. State, 223 Ga. App. 3 (5) (476 SE2d 785) (1996); Dowdy v. State, 209 Ga. App. 95 (3) (432 SE2d 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 systern 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 S2d 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 SE2d 861) (1970); Newton v. Newton, 222 Ga. 175 (149 SE2d 128) (1966); Jones v. State, 226 Ga. App. 608 (487 SE2d 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 SE2d 32) (1998); Knight v. Sikes, 269 Ga. 814 (504 SE2d 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, 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.

This determination requires us to revise our previous scheme regarding the allocation of burdens of proof. In determining what burden of proof to impose, we have surveyed the foreign jurisdictions reviewed by the U. S. Supreme Court and more recent holdings. See, e.g, State v. Payne, 504 SE2d 335, 338 (S.CApp. 1998); People v. Carpentier, 521 NW2d 195 (IV) (Mich. 1994); James v. Commonwealth, 446 SE2d 900, 904 (Va.App. 1994); State v. Shelton, supra, 621 S2d at 779 (La. 1993); Fairbanks v. State, 629 A2d 63 (Md. 1993); State v. Triptow, 770 P2d 146, 149 (Utah 1989). We find most persuasive and consonant with Georgia law the “middle position,” which “requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. [Cits.]” Parke, supra, 506 U. S. at 33. This procedure most realistically balances the various policies at issue, in that on one hand it gives effect to the presumption of regularity while fully protecting the defendant’s right to counsel, and on the other hand it recognizes that in establishing a Boykin violation “the defendant is the one best situated to know” whether his or her rights were infringed in the earlier proceedings. State v. Triptow, supra, 770 P2d at 149. Accordingly, we hold that the burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted. See Nichols v. United States, 511 U. S. 738 (114 SC 1921, 128 LE2d 745) (1994); Burgett v. Texas, 389 U. S. 109 (88 SC 258, 19 LE2d 319) (1967); see also Fairbanks v. State, supra, 629 A2d at 68 (State carries burden of proving counseled plea by adducing “a docket entry or other affirmative statement that the defendant waived the right to counsel. If the record does not so show, the State bears the burden of showing waiver”). Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. “Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence.” State v. Shelton, supra, 621 S2d at 779, fn. 24. “A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient.” James v. Commonwealth, supra, 446 SE2d at 904. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State.

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.

State v. Shelton, supra, 621 S2d at 779-780.

Although the Court of Appeals failed to follow the controlling authority of Pope v. State, supra, 256 Ga. at 195 (17), for the reasons set forth above we affirm its application of Parke v. Raley. However, reviewing the record in light of the procedure we have adopted, we find that while the State in this case has submitted sufficient proof of the existence of the prior guilty plea and that the defendant was represented by counsel at the time it was taken, the parties were operating under Pope and thus no evidence was adduced by Nash to carry his burden of proving a constitutional infirmity in the earlier plea. Accordingly, we remand this case to allow Nash an opportunity to attempt to meet his burden of production at a hearing to be held consistent with this opinion.

Judgment affirmed in part, remanded in part.

All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J, who concur specially.

1 Pope remains the controlling authority as to the admission of guilty pleas in the sentencing phase of death penalty cases.