Johnson v. State , 227 Ga. App. 390 ( 1997 )

McMurray, Presiding Judge,

dissenting.

I respectfully dissent since I believe defendant was adequately advised of the consequences “of entering a non-negotiated plea of guilty to a second possession with intent to distribute and a second sale of cocaine.” The transcript shows that the trial court was initially unaware that the prosecutor had served notice upon defendant of intent to seek enhanced punishments based upon defendant’s prior convictions of similar offenses. Thus, while initially informing defendant of the possible sentence, reference was made to the minimum sentences applicable to first offenders. Nonetheless, the life sentence for second offenses pursuant to the then applicable version of OCGA § 16-13-30 (d) was also stated. Defendant was correctly informed of the consequences of his plea and was well aware that any possibility of a reduction in sentence was contingent upon his making a bargain and providing cooperation to the State, a goal which was not accomplished by defendant.

The record affirmatively shows that the substantive requirements of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) concerning the defendant’s guilty plea were met. Additionally, defendant consulted with counsel regarding his case, so that it may be presumed, following rejection of defendant’s claims of ineffective assistance of counsel, that counsel in fulfilling his role in the adversary process has rendered adequate assistance to defendant including advising his client regarding the meaning and effect of the plea subsequently entered. In this regard I note, contrary to the assertion contained in the majority opinion, that there is no procedural requirement that the trial judge personally make the inquiry required under USCR 33.8 (C), which pursuant to the provisions of the rule may be developed by questions from the judge, the district attorney or defense counsel, or a combination of any of these. Although the trial court did not specifically address each issue found in USCR 33.8, I would find the determination of voluntariness clearly supported by the record. McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235); Brown v. State, 216 Ga. App. 312, 313 (1) (454 SE2d 596).

In my view, the majority imposes an unrealistic goal upon the trial court, to serve virtually as the counselor of any person submitting a guilty plea. The trial court’s duty included determining whether defendant had an understanding of the consequences of his plea. Having observed defendant being informed that a life sentence would be imposed for second offenses of the crimes with which he was charged, the trial court was authorized to conclude that defendant understood that information. The trial court’s duty did not extend to counseling the defendant by speculating concerning the consequences of uncertain future contingencies.

Decided July 16, 1997. Megan C. DeVorsey, for appellant. Lewis R. Slaton, District Attorney, Leigh A. DuPre, Carl P Greenberg, Assistant District Attorneys, for appellee.

I am authorized to state that Chief Judge Andrews and Judge Eldridge join in this dissent.