Byrd v. Shaffer , 271 Ga. 691 ( 1999 )

Fletcher, Presiding Justice.

The state appeals the grant of habeas corpus relief to Michael John Shaffer. Because the record supports the habeas court’s findings that the state failed to establish that Shaffer waived his constitutional rights in pleading guilty, we conclude that the guilty plea was not knowingly, voluntarily, and intelligently made and affirm.

According to the guilty plea transcript, the state was prepared to show through the testimony of Shaffer’s half-brother Gary that Shaffer got drunk at a bar, displayed a pipe bomb, threatened to blow up the bar, and that Gary then removed the pipe bomb to his house and called the police. During the guilty plea hearing, the trial court did not inform Shaffer of the rights that he would be waiving by pleading guilty, including the right to the presumption of innocence, to remain silent, and to confront the sole witness against him. Towards the end of the guilty plea hearing, Shaffer contended that he did not believe the bomb was real and that although he had the bomb at one point, it was his half-brother who had possession of it that night. The trial court recognized that Shaffer was not admitting guilt, but without inquiring further, sentenced Shaffer to four years’ imprisonment for terroristic threats and twelve months for carrying a deadly weapon.

1. After a hearing at which Shaffer testified and the state presented the guilty plea transcript and the testimony of Shaffer’s counsel, the habeas court found that the state had not shown that Shaffer understood that by pleading guilty, he waived the presumption of innocence and the right to remain silent or to testify. A review of the record shows that the habeas court’s findings regarding Shaffer’s understanding of these consequences of a guilty plea are not clearly erroneous. Shaffer testified that his counsel did not go over the waiver of rights and his counsel testified that his typical practice was to go over the rights being waived. Because there was conflicting evidence regarding what Shaffer’s counsel might have told Shaffer about the consequences of a guilty plea, the habeas court, as the finder of fact, was authorized to resolve the conflicts in the manner in which it did.¹

2. In Bowers v. Moore ² this Court held that the state bears the burden in a habeas proceeding of establishing that the plea was knowingly, voluntarily, and intelligently made. If the state fails to make this showing either through the transcript of the guilty plea hearing or extrinsic evidence, then the guilty plea will be considered invalid.³ Nash v. State⁴ does not change the burden established in Bowers. Nash is inapplicable to habeas proceedings because the holding in that case was specifically limited to recidivism cases where the state is seeking to use a prior guilty plea to enhance punishment.⁵ Nothing in Nash or the cases upon which it relies warrants an extension of its narrow rule to this case.

3. Based on the habeas court’s factual findings, we conclude that the state did not meet its burden of showing that Shaffer knowingly, voluntarily, and intelligently waived his constitutional rights in pleading guilty. Therefore, the habeas court did not err in granting the petition.

Judgment affirmed.

All the Justices concur, except Carley and Hines, JJ, who dissent.

1 Williams v. Caldwell, 229 Ga. 453 (1) (192 SE2d 378) (1972).

2 266 Ga. 893 (471 SE2d 869) (1996).

3 Id. at 895.

4 271 Ga. 281 (519 SE2d 893) (1999).

5 Id. at 284 (we “conclude that the burden of production is on the recidivism defendant . . . when the defendant seeks ... to challenge the validity of a prior guilty plea used to enhance a sentence in such proceedings”).