Nash v. State

503 S.E.2d 23 (1998)

233 Ga. App. 75

NASH v. The STATE.

No. A98A0316.

Court of Appeals of Georgia.

May 26, 1998.

Reconsideration Denied June 24, 1998.

Certiorari Granted November 6, 1998.

Pete, Pete & Associates, Anthony T. Pete, Athens, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Nash was convicted in 1996 of aggravated assault on Iris Johnson for assaulting her with a knife when he became enraged with Johnson during a visit to her mother's home. OCGA § 16-5-21.

1. Nash contends the court erred in admitting testimony concerning several threatening telephone calls allegedly made by him to the victim's mother in that insufficient evidence to prove he made the calls resulted in the absence of a proper foundation for this testimony.

Inasmuch as Nash conceded at trial that a proper foundation had been laid and then objected to it on grounds that its prejudicial effect outweighed its probative value, the foundation issue has not been preserved *24 for appellate review.[1] Regardless, there was ample evidence identifying Nash as the caller.

2. Nash enumerates as error the trial court's consideration, in aggravation of punishment, of his 1991 conviction based on a guilty plea to a felony and two misdemeanors.

At sentencing, the prosecuting attorney submitted a certified copy of the conviction for felony obstruction, terroristic threats, and criminal damage to property. The purpose was to warrant recidivist punishment under OCGA § 17-10-7(a). He urged that under the statute, the court was required to give Nash the maximum 20-year sentence for aggravated assault, although any part could be probated. Accordingly, the court imposed the maximum 20-year sentence, with the last 12 years probated.

When Nash challenged the voluntariness of the guilty plea, the State was unable to produce a transcript of the plea proceeding. Evidence did show that Nash's guilty plea hearing was reported but not transcribed.

To fill the void, the State submitted the testimony of the attorney who had prosecuted the case. Although he had no independent recollection of Nash's plea, he testified that he was certain and had "no doubt whatsoever" that the plea was knowingly and voluntarily entered because in every case it was his practice, as well as that of the presiding judge, both to inform the defendants of all the rights they were waiving and the consequences of their pleas and to ensure that the pleas were knowingly and voluntarily entered. He explained the procedure used and the rights articulated.

Defendant offered no evidence whatsoever to rebut this or to show he did not enter a proper plea. Following argument, the court found that the State had proved a valid plea and ruled that the conviction could be considered in arriving at a sentence.

Nash's position is squarely seated on the requirements established by the United States Supreme Court in Boykin v. Alabama.[2] The Court held that federal constitutional due process requires that after a defendant raises the question of the validity of his plea of guilty, the burden is on the State to affirmatively show that the plea was intelligently and voluntarily entered. It may be accomplished by one of two means: (1) the record of the plea shows the prisoner was aware of the rights he was waiving and the consequences of the plea; and (2) extrinsic evidence shows the same.[3]

Boykin involved direct review of a conviction allegedly based on an uninformed guilty plea. In 1992 the United States Supreme Court had before it a case similar to Nash's, Parke v. Raley,[4] in that both challenged their state court's use of prior guilty pleas so as to impose persistent offender sentences. The issue was whether due process imposed the same burden of proof on the State when a prior guilty plea is offered to enhance a sentence pursuant to a recidivist statute. The Court distinguished this situation from Boykin, pointing out that Raley "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.]"[5]

The Court reasoned further that on collateral review, "it defies logic to presume *25 from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In 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."[6] Consequently, it held, "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."[7]

The trial court in Nash's case did place the burden on the State, and the State accepted it, presumably on the authority of Boykin. Clearly there was no recognition of Parke. In any event, the State's proof of validity was not assailed by Nash, much less undermined, other than by objection to its sufficiency, and Nash was not deprived of the right upon which he stands. He had an opportunity to present contrary evidence and did not do so, counting instead on the absence of a guilty plea transcript and what he considered to be deficient extrinsic evidence. He, too, missed Parke.

On appeal, Nash still ignores that controlling authority. All of the cases he relies on are bottomed on Boykin. Some, like Gadson v. State,[8]Gadson v. State again,[9] and Pope v. State,[10] are pre-Parke collateral attacks on sentence enhancement use, as Nash has undertaken.[11] Although Miller v. State[12] is also such a case but is post-Parke, it fails to take Parke into account and erroneously considered the burden to be on the State to prove the sentence-enhancing plea's validity per Boykin, without the presumption of regularity. No harm was done because the State showed the plea was valid.

Other cases which Nash cites, like State v. Germany,[13]Johnson v. State,[14]Spurgeon v. State,[15]Bowens v. State,[16]Lopez v. State,[17] and Parks v. State[18] are direct appeals and thus properly apply Boykin.[19]

Nash also presents two habeas corpus cases, Bowers v. Moore[20] and Roberts v. Greenway,[21] which Bowers follows. Both of these cases impose Boykin's burden of proof requirement on the State when the plea is challenged by a prisoner in a habeas corpus proceeding. Although Bowers (but not Roberts ) was decided several years after Parke, the Supreme Court of Georgia did not discuss it even though the issue arose in a habeas corpus setting as it did in Parke.

Parke was a Kentucky warden against whom Raley brought a federal habeas corpus action after the state trial court, and the state appellate court on direct appeal, rejected his contention that his prior guilty pleas should have been suppressed in sentencing. His reasoning was that they were invalid under Boykin in that the records did not contain transcripts of the plea proceedings and thus did not affirmatively show the pleas were knowing and voluntary.

Bowers differs from Parke only in that the collateral nature of the attack is solely by *26 way of the habeas corpus proceeding itself, whereas Raley's primary collateral attack was his motion to suppress evidence of the guilty plea for sentence enhancement; it was the state courts' rejection of his position that led to the habeas corpus proceeding, which itself was a collateral attack. Nevertheless, in Parke, the United States Supreme Court discussed habeas corpus challenges of guilty pleas in the same vein as efforts to undermine guilty pleas to heighten sentence. Both are collateral attacks in which the presumption of regularity applies and due process does not require a presumption of invalidity.[22]

Bowers is bottomed on Boykin and not on state grounds (such as the due process provision of the Georgia Bill of Rights). Consequently it does not govern disposition of Nash's case; Parke does.

The trial court did not deprive Nash of due process of law, as protected by the Fourteenth Amendment, by admitting in evidence his prior guilty plea so as to make him eligible for a recidivist sentence. The court was authorized to, but did not, apply the presumption of regularity which is "deeply rooted in our [American] jurisprudence"[23] and in Georgia is codified in OCGA § 24-4-24(b)(1).[24] The plea was shown to represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant."[25]

Nash has presented neither in the trial nor here any independent state ground, either by way of state constitutional basis, statute, or common law. OCGA § 17-10-7, the statute which calls for enhanced punishment for repeaters and constituted the authority for his sentence, does not provide otherwise.

Judgment affirmed.

ANDREWS, C.J., McMURRAY, BIRDSONG and POPE, P.JJ., JOHNSON,

BLACKBURN, SMITH and ELDRIDGE, JJ., and HAROLD R. BANKE, Senior Appellate Judge, concur.

[1] See Brantley v. State, 177 Ga.App. 13, 14(1), 338 S.E.2d 694 (1985).

[2] 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

[3] Beck v. State, 222 Ga.App. 168, 473 S.E.2d 263 (1996), and cits. This is a judicially fashioned Georgia rule of evidence methodology. See Roberts v. Greenway, 233 Ga. 473, 475(1), 211 S.E.2d 764 (1975). Boykin focuses on the contemporaneous record method but impliedly does not preclude the extrinsic method. Id. at 244, 89 S. Ct. at 1713.

[4] 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992).

[5] Id. at 29, 113 S. Ct. at 523 .

[6] Id. at 30, 113 S. Ct. at 523-24.

[7] Id. at 34, 113 S. Ct. at 525-26.

[8] 197 Ga.App. 315, 398 S.E.2d 409 (1990).

[9] 202 Ga.App. 417, 414 S.E.2d 332 (1992) (same Gadson, on second appeal following resentencing).

[10] 256 Ga. 195, 209(17), 345 S.E.2d 831 (1986).

[11] Although the second Gadson appeal was decided the same year as Parke, the Court of Appeals of Georgia decided Gadson in January and the United States Supreme Court decided Parke the following December.

[12] 214 Ga.App. 393, 394(2), 448 S.E.2d 20 (1994).

[13] 245 Ga. 326, 265 S.E.2d 13 (1980).

[14] 227 Ga.App. 390(1), 489 S.E.2d 138 (1997).

[15] 214 Ga.App. 227, 447 S.E.2d 164 (1994).

[16] 194 Ga.App. 391(2), 390 S.E.2d 634 (1990).

[17] 207 Ga.App. 554(1), 428 S.E.2d 448 (1993).

[18] 223 Ga.App. 694, 479 S.E.2d 3 (1996).

[19] The Supreme Court of Georgia anticipated the problem of proof for later collateral proceedings in Germany.

[20] 266 Ga. 893, 471 S.E.2d 869 (1996).

[21] 233 Ga. at 475(1), 211 S.E.2d 764.

[22] Parke, 506 U.S. at 29-30, 113 S. Ct. 517.

[23] Id. at 20, 113 S. Ct. 517.

[24] See also Touchton v. Stewart, 229 Ga. 303, 190 S.E.2d 912 (1972).

[25] North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970).