Walker v. Hopper , 234 Ga. 123 ( 1975 )

Ingram, Justice,

dissenting.

I dissent as this case comes too close to the "assembly-line” procedure which the majority opinion eschews approving as acceptable. It is difficult for me to believe that a decision to plead guilty can be knowingly (intelligently) and voluntarily made by an illiterate layman on the basis of a quick consultation with counsel appointed "only a matter of minutes before the plea is entered.”

There is no doubt that the lawyer appointed in this case is an able lawyer and was conscientious in the short time he had before the plea was entered. However, counsel himself testified at the subsequent habeas hearing that "his handling of fee paid cases is different.” To my mind, this means that the majority opinion recognizes and approves two standards of effective assistance of counsel — one highly effective in fee paid cases and one that is less effective in appointed cases.

The result of approving only quick consultations before guilty pleas are entered may well lead us into unequal justice for the poor and illiterate who must depend upon appointed counsel. I think we have to be assured that each accused who pleads guilty does it knowingly as well as voluntarily. This means the lawyer must know the facts of the case and the accused must know the legal elements involved before a voluntary and intelligent decision can be made.

In my opinion, the Constitution of the United States and of Georgia both require that counsel must actually and substantially assist his client in deciding whether to plead guilty. This should be the test applied to the facts of each case when a question arises about the effective assistance of counsel on a guilty plea. This question can be answered without much trouble in a later habeas corpus inquiry if the record of the guilty plea hearing shows at least some summary of exactly what counsel did to assist the client in deciding what plea to enter in the case.

In the absence of including at least a statement by the lawyer in the presence of his client as a part of the record made at the time the plea is entered, the circumstances must he reconstructed later. This is often unfair to counsel who thought he was effective but finds that his former client is now disputing it. For relevant cases dealing with the issues of guilty pleas and also counsel, see McCarthy v. United States, 394 U. S. 459, 466; Walker v. Caldwell, 476 F2d 213, 214 (4); MacAuliffe v. Rutledge, 231 Ga. 1 (200 SE2d 100); Pitts v. Glass, 231 Ga. 638 (203 SE2d 515); Wilkins v. Hopper, 232 Ga. 796, 797 (209 SE2d 147); and, see Code Ann. § 2-105 (Art. I, Sec. I, Par. V, Georgia Constitution.)

I dissent in the present case because I do not believe the able lawyer appointed to represent this defendant had sufficient time to assist the client in making a voluntary and intelligent decision to plead guilty.