☢ test - Í

[defendant] of his Sixth Amendment right to testify at trial if he so desired, as the trial court did here, [fn] in no manner alerted [defendant] of his right, guaranteed by the Fifth Amendment, not to testify during the plea proceeding that he committed the acts charged in the indictment.” Emphasis added here. Focus is on right against self-incrimination at plea entry, rather than at trial. Distinguished, Rogers (November 2, 2009), above (telling defendant that he has “the right not to testify” at jury trial is adequate to convey right against self-incrimination). State v. Cooper, 281 Ga. 63, 636 S.E.2d 493 (October 4, 2006). In habeas petition, voluntariness of guilty plea is determined not based solely on colloquy with court, but on all evidence in the record. “Whether the trial court establishes on the record a factual basis for the guilty plea does not enter into the determination of the constitutional validity of the plea under Boykin. As the habeas court itself recognized, that requirement is only imposed on the trial court pursuant to Uniform Superior Court Rule (USCR) 33.9. See State v. Evans, 265 Ga. 332 (454 S.E.2d 468) (1995). Although USCR 33.9 ‘applies in a guilty plea hearing, this is a habeas corpus proceeding, and that Rule does not apply here because it is not of constitutional magnitude. ’ Britt v. Smith, [274 Ga. 611, 615 (556 S.E.2d 435) (2001)]. ‘We cannot elevate the provisions of that Rule to the status of requirements of constitutional dimension, by ignoring the controlling principle that “habeas corpus is available to review constitutional deprivations only....” [Cit.]’ Britt v. Smith, supra at 612. Therefore, the habeas court erred in predicating the grant of relief upon the trial court’s failure to establish on the record a factual basis for Cooper’s guilty pleas.” Guilty plea petition showed that defendant knowingly waived his Boykin rights. Accord, Brown v. State , 290 Ga. 50, 718 S.E.2d 1 (November 7, 2011). Beckworth v. State, 281 Ga. 41, 635 S.E.2d 769 (October 2, 2006). Denial of habeas petition reversed; written waiver form referencing “only one of the three Boykin rights” (right to jury trial, but not right to confrontation or right against self-incrimination) was insufficient to establish voluntariness of defendant’s plea. Accord, Nickerson v. State , 287 Ga.App. 617, 652 S.E.2d 208 (September 24, 2007) (trial court erred in accepting guilty plea to reckless driving without review of any of the Boykin rights or factual basis). Gibson v. State, 281 Ga.App. 607, 636 S.E.2d 767 (September 20, 2006). Trial court improperly injected itself into plea negotiations with this statement to defendant who was wavering about pleading guilty versus going to trial: “ If you are asking me will I give you that same consideration after you have put the state on trial, they have brought in witnesses at their expense, these citizens have listened to evidence over four or five days, will I give you the same consideration versus saving the taxpayers money? No. ” “Comments by the trial judge which reinforce the unmistakable reality that a defendant who rejects a plea offer and instead opts to go to trial will likely face a greater sentence have been held by this Court to unlawfully insert the judge into the plea process. See Skomer v. State, 183 Ga.App. 308, 309 (358 S.E.2d 886) (1987). See also Cherry [ v. State, 240 Ga.App. 41, 43-44(2) (522 S.E.2d 540) (1999)]. Cf. McDaniel [ v. State, 271 Ga. 552, 553(2) (522 S.E.2d 648) (1999)]. This Court has recognized ‘an enormous difference between simply being aware or even being reminded by the state that rejection of a plea proposal may result in a greater punishment and being told by the trial judge that a rejection of a plea proposal will result in greater punishment in the event of a conviction by a jury.’ (Emphasis in original.) Skomer, 183 Ga.App. at 309. The latter results in the judge becoming a participant in the plea bargaining, which in turn ‘brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is a present reminder whether referred to or not. A defendant needs no reminder from the court that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence.’ Id. (citations and punctuation omitted).” “We are bound by precedent … to hold that the trial judge improperly inserted himself into the plea bargaining process when he … advised Gibson that he would not give him the same sentence considerations in the event that he opted to proceed to trial rather than accept the proposed plea. Skomer, 183 Ga.App. at 309. Immediately following this exchange, the oft-wavering Gibson agreed to the entry of his guilty plea. We must conclude under these circumstances that there was a substantial likelihood that Gibson was unduly influenced to plead guilty by the judge’s comments. Consequently, the trial court erred in refusing to allow Gibson to withdraw his guilty plea.” Compare Ray v. State , 292 Ga.App. 575, 665 S.E.2d 345 (June 12, 2008) (defendant can’t complain that trial court inserted itself into plea negotiations where defendant didn’t accept plea deal). Accord, Works v. State , 301 Ga.App. 108, 686 S.E.2d 863 (November 17, 2009) (trial judge didn’t engage in improper plea negotiations when she “only advised the parties as to a plea she would find unacceptable and one she would accept.” “Here, the trial judge made no statement as to the sentence that would be imposed if Works did not accept a plea proposal. Nor did the trial court threaten Works with a stricter sentence if he decided to exercise his right to go to trial instead of pleading guilty.”); Pride (June 13, 2011); above ; McCranie (February 2, 2016), above. David v. State, 631 Ga.App. 714, 631 S.E.2d 714 (May 8, 2006). “‘The question is not whether the trial court followed the letter of USCR 33.8 but whether the record, as a whole, affirmatively shows [David’s] plea was knowing and

Made with FlippingBook Ebook Creator