☢ test - Í
factual basis existed for plea); Bess v. State, 235 Ga.App. 372, 374(2), 508 S.E.2d 664 (1998) (judge entitled to rely upon his own recollection of facts established at bond hearing in determining same).” Thompson v. State, 294 Ga.App. 768, 670 S.E.2d 226 (November 21, 2008). Trial court properly considered defendant’s prior pleas on sentencing; State met its burden by showing that defendant was represented by counsel, and defendant never challenged the voluntariness of the pleas. Thus, “the State had no burden to establish a valid waiver sufficient to satisfy Boykin. ” Ransom v. State, 293 Ga.App. 651, 667 S.E.2d 686 (September 23, 2008). “‘The fact that ... the guilty plea inquiries were addressed to the defendant by the district attorney instead of the trial court is not a ground for reversal.’ State v. Germany, 245 Ga. 326, 328-329, 265 S.E.2d 13 (1980); see also Freeman v. State, 211 Ga.App. 716, 717(1), 440 S.E.2d 490 (1994).” Sweeting v. State, 291 Ga.App. 693, 662 S.E.2d 785 (May 28, 2008). Defendant couldn’t challenge factual basis for his guilty plea on basis that he wasn’t put under oath at plea hearing, thus contending that the conviction was based only on unsworn testimony. “The failure to object to unsworn testimony at the time the testimony is given constitutes a waiver of the requirements of an oath. See Hogue v. State, 219 Ga.App. 69, 70-71(2) (464 S.E.2d 30) (1995); Hilson v. State, 204 Ga.App. 200, 203(1) (418 S.E.2d 784) (1992); Belcher v. State, 173 Ga.App. 509, 510(1) (326 S.E.2d 857) (1985).” Ruffin concurs specially, pointing out that “there does not appear to be any specific legal requirement that a defendant be placed under oath during a guilty plea hearing,” citing USCR 33.1 et seq., but encouraging it as the better practice. Leary v. State, 291 Ga.App. 754, 662 S.E.2d 733 (May 7, 2008). “Although the trial court did not also inform Leary that he would be ineligible for parole, we will not overturn a guilty plea based upon the court’s failure to inform a defendant of such collateral consequences of a guilty plea. See Hildreth v. State, 256 Ga.App. 832, 835-836(3) (570 S.E.2d 49) (2002). The fact that the trial court allegedly misinformed Leary about his eligibility for sentence review does not change the result, as eligibility to have a sentence reviewed is also a collateral rather than direct consequence of pleading guilty. See Reed v. State, 251 Ga.App. 606, 607 (554 S.E.2d 792) (2001).” Davis v. State, 289 Ga.App. 526, 657 S.E.2d 609 (February 7, 2008). Convicted of burglary at trial, defendant then pled guilty to possession of firearm by convicted felon. Defendant’s burglary conviction was overturned on appeal; defendant thus moves to withdraw the guilty plea on the firearm charge, “because he only pled guilty to avoid incurring consecutive sentences, and that without the burglary conviction his plea was not voluntary.” Held, record shows that defendant’s plea was made knowingly and voluntarily; defendant was specifically advised “that he was giving up … his right to appeal if he were found guilty.” Smith v. State, 289 Ga.App. 742, 658 S.E.2d 156 (February 6, 2008). Trial court has no duty under Boykin v. Alabama, 395 U.S. 238 (89 S.Ct. 1709, 23 L.Ed.2d 274) (1969) to determine that defendant’s decision to plead not guilty was “knowing and voluntary.” “Because a guilty plea involves a waiver of at least three constitutionally protected rights – the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront one’s accusers – due process requires that the waiver of these rights be knowing and voluntary. Id. at 243. No such waiver of rights occurs when a defendant pleads not guilty. Echols v. State, 167 Ga.App. 307, (308 306 S.E.2d 324) (1983). The defendant who pleads not guilty and opts for trial instead invokes a constitutional right – the right to trial by jury. Boykin is therefore inapposite.” Sutton v. Sanders, 283 Ga. 28, 656 S.E.2d 796 (January 28, 2008). Habeas court erred in denying defendant’s petition challenging the voluntariness of his 1993 guilty plea: “The transcript of the 1993 plea colloquy affirmatively shows that Sutton was advised of his constitutional rights against self-incrimination and to confront his accusers, but it does not show that he was advised of his constitutional right to a jury trial.” State presents no extrinsic evidence on the issue . State v. Hemdani, 282 Ga. 511, 651 S.E.2d 734 (October 9, 2007). Habeas court properly granted relief from guilty plea entered without being informed of right to counsel at trial and right against self-incrimination. “First, it is undisputed that the trial court did not fully inform Hemdani of his Boykin rights during his plea hearing. Second, there is no evidence of record that the trial court entered into any colloquy with Hemdani to ensure that he read and fully understood the plea agreement which he signed. Third, there is no evidence that Hemdani’s trial counsel discussed his
Made with FlippingBook Ebook Creator