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to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. ‘Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence.’ State v. Shelton, [621 So.2d 769, 779, fn. 24 (La., 1993)]. ‘ A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient .’ James v. Commonwealth, [18 Va.App. 746, 446 S.E.2d 900, 904 (1994)]. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State. ‘The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a ‘perfect’ transcript, ... the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.’ State v. Shelton, supra, 621 So.2d at 779-780.” Accord, Gillman v. State , 239 Ga.App. 880, 522 S.E.2d 284 (September 9, 1999); Beck v. State , 283 Ga. 352, 658 S.E.2d 577 (March 10, 2008); Williams v. State , 296 Ga.App. 270, 674 S.E.2d 115 (February 23, 2009); Freeman v. State, 244 Ga.App. 393, 535 S.E.2d 349 (June 9, 2000); Brown v. State , 244 Ga.App. 544, 536 S.E.2d 253 (June 22, 2000) (remanded to allow defendant to attempt to carry re-allocated burden of proof, where burden previously placed on State); Rucker v. State , 304 Ga.App. 184, 695 S.E.2d 711 (May 25, 2010) (after State proved existence of prior counseled pleas, defendant failed to carry his burden “to affirmatively show ‘an infringement of his rights or a procedural irregularity in the taking of his plea,’” quoting Nash ); Dunham (May 17, 2012), above; Shields v. State , 328 Ga.App. 100, 761 S.E.2d 516 (July 10, 2014) (trial court entitled to consider prior plea in imposing recidivist sentencing, where defendant failed to show that plea wasn’t voluntary); Wallace v. State , 335 Ga.App. 232, 779 S.E.2d 130 (November 16, 2015). Rutledge v. State, 237 Ga.App. 390, 515 S.E.2d 1 (March 15, 1999). Applies presumption of regularity to prior counseled plea of guilty to felony offenses, based on Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). Prior pleas were used here to impose recidivist sentencing under OCGA § 17-10-7(b)(2). Accord, Wells v. State , 237 Ga.App. 109, 514 S.E.2d 245 (March 18, 1999); Harris v. State , 238 Ga.App. 452, 519 S.E.2d 243 (June 7, 1999). See also Nash (July 6, 1999), above, where Georgia Supreme Court adopts this same view. 9. PRIOR CONVICTIONS – USED BOTH TO AGGRAVATE SENTENCE AND TO PROVE NEW OFFENSE Hillman v. Johnson, 297 Ga. 609, 774 S.E.2d 615 (June 29, 2015). Habeas court erred in part by denying Hillman relief. Trial court erred by sentencing defendant as a recidivist for possession of a firearm by a convicted felon; as the Court of Appeals correctly ruled in “ King v. State, 169 Ga.App. 444, 313 S.E.2d 144 (1984), OCGA § 17–10–7(a), which requires courts to sentence defendants with a prior felony conviction to the maximum time authorized for any subsequent conviction, does not apply to violations of OCGA § 16–11–131,” relating to possession of a firearm by convicted felon. Such as reading would make meaningless the provision of OCGA § 16-11-131 which provides for a sentencing range of 1-5 years. Overrules other decisions, however, which interpreted King to mean that prior convictions can’t be used to support both recidivist sentencing (on offenses for which felon status isn’t an element of the offense) and felon status (on offenses for which felon status is an element of the offense). Accord, Morris v. State , 297 Ga. 426, 774 S.E.2d 665 (June 29, 2015). Pardon v. State, 322 Ga.App. 393, 745 S.E.2d 658 (June 25, 2013). Forgery and related convictions affirmed; trial court erred by using defendant’s prior rape offense both to convict for failure to register as a sex offender and to impose recidivist sentencing. Based on King v. State , 169 Ga.App. 444, 313 S.E.2d 144 (1984) (prior felony couldn’t be used to convict of felon in possession of firearm and recidivist sentencting). Similar to King , “the crime of failure to register as a sex offender under OCGA § 42–1–12(n), which prescribes a sentencing range of one to thirty years for the first offense. If the State was allowed to apply the prior conviction of every defendant as a recidivist charge under OCGA § 17–10–7(a), the range of one to thirty years would be eviscerated, and all defendants would be sentenced instead to thirty years. [Cit.] Such a result would ignore the legislature's stated penalty range for failure to register as a sex offender, and it contravenes the requirement that penal statutes be construed strictly against the State. [Cit.]” Nor could other charges associated with the prior rape be used to impose recidivist sentencing: “the legislature specifically stated otherwise within the OCGA § 17–10–7(d): ‘[f]or the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.’” This seems consistent with the Supreme Court’s interpretation of King, see Hillman (June 29, 2015), above.
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