Wharton v. Henry , 266 Ga. 557 ( 1996 )

Benham, Chief Justice.

In 1989, Charles Henry pled guilty to distribution of cocaine and received a 20-year sentence, with 90 days to serve in custody and the remainder on probation. That probation was revoked in June 1991 after Henry committed armed robbery and aggravated assault. In April 1995, acting pro se, Henry filed an application for a writ of habeas corpus in which he contended, among other things, that his 1989 guilty plea was involuntary because the court which accepted his guilty plea failed to ascertain the factual basis for the plea.¹

At a hearing on the application for habeas relief, it was established that no transcript of the guilty plea hearing exists, and that Henry was not represented by counsel when he tendered his guilty plea to the trial court. The trial court accepted the guilty plea using a pre-printed order which stated that the court had “affirmatively determined that. . . there is a factual basis for the plea of guilty. . . .” However, none of the documents placed before the trial court established any of the facts of the offense to which Henry pled guilty. At the habeas hearing, the former assistant district attorney (ADA) who had represented the State when Henry pled guilty testified that he and his secretary had reviewed the acknowledgment and waiver of rights form with Henry, and that the former ADA had informed the trial court of the factual basis for the plea. The former ADA testified that he had told the trial court that Henry had distributed cocaine to a confidential informant or undercover police officer. Relying on this Court’s recent decisions in Evans v. State, 265 Ga. 332 (454 SE2d 468) (1995) and Green v. State, 265 Ga. 263 (454 SE2d 466) (1995), the habeas court determined that the guilty plea record was insufficient to establish the existence of a factual basis for the guilty plea, and ordered that Henry be allowed to withdraw his guilty plea. The Warden appeals from the habeas court’s order (S96A0080), and Henry has filed a cross-appeal, claiming that the habeas court should have ordered his immediate release (S96X0081).

1. In Evans, supra, 265 Ga. at 334, we held that the provisions of Uniform Superior Court Rule 33.9 are mandatory, i.e., a trial court must make itself aware of the factual basis for the guilty plea before entering judgment thereon and, in so doing, produce a record which can be reviewed for abuse of discretion. In Green, supra, 265 Ga. at 264, we determined that a pre-printed plea petition containing standard questions which did not elicit the facts of the charges against the defendant did not provide a sufficient factual basis for the plea. Here, the trial court’s summary statement that there is a factual basis for the plea when the record of the guilty plea hearing provides none of the facts underlying the charge is similarly deficient as it does not provide the factual basis for the plea necessary for a review for abuse of discretion.

2. 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. Evans, supra, 265 Ga. at 336. In undertaking the manifest injustice analysis, the reviewing court is authorized to examine evidence that was not part of the guilty plea hearing. Id. In Evans, we based our conclusion that there was no manifest injustice in need of correction on the existence of an investigator’s affidavit which recounted the victim’s statements and provided an adequate factual basis for the crime. Today, we hold that a reviewing court conducting the manifest injustice analysis is not limited to the record of the guilty plea, but may consider subsequent evidence presented to the reviewing court. Stated another way, review for determination of whether there was a factual basis for a guilty plea is limited to the record created at the guilty plea hearing, while the manifest injustice review may take into consideration other evidence before the reviewing court as well as the evidence placed before the trial court accepting the guilty plea. The differing parameters of the evidentiary bases for the two examinations are justified by the rationale set forth in Evans at 336: limiting the pleader’s ability to assert a tactical change of heart; avoiding the difficulty of undoing what has been done by the State in accordance with the accepted plea; and giving finality, within constitutional limitations, to an accepted guilty plea.

3. Because the habeas court granted relief to the petitioner without undertaking the “manifest injustice” analysis, we remand the case to the habeas court in order that it might determine whether withdrawal of Henry’s guilty plea is necessary to correct a manifest injustice.

Case remanded with direction.

All the Justices concur, except Thompson, J., who dissents.

1 At the habeas hearing, Henry was permitted to amend his petition to allege that his incarceration resulting from the revocation of his parole was unlawful because he was not afforded counsel at the revocation hearing. The habeas court postponed an evidentiary hearing on the amendment in light of the court’s concerns about the existence of a factual basis for Henry’s plea.