FIFTH DIVISION
DILLARD, C. J.,
REESE and BETHEL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 12, 2018
In the Court of Appeals of Georgia
A16A0588. HAYES v. THE STATE.
DILLARD, Chief Judge.
Following a guilty plea to charges of burglary, possession of tools for the
commission of a crime, and misdemeanor obstruction of a law enforcement officer,
Marion Hayes appealed to this Court (proceeding pro se), contending that (1) the trial
court improperly participated in the guilty-plea proceedings, (2) the plea was not
entered into voluntarily, and (3) his decision to proceed pro se was invalid. And in
Hayes v. State,1 we held that the trial court improperly participated in the guilty-plea
proceedings, reversing Hayes’s convictions without considering his additional
enumerations of error.2 But the Supreme Court of Georgia reversed our decision in
1
337 Ga. App. 280 (786 SE2d 539) (2016)
2
See 337 Ga. App. at 283.
State v. Hayes,3 and remanded for this Court to consider Hayes’s two remaining
enumerations of error. Having done so, we vacate our earlier opinion, adopt as our
own the opinion and judgment of the Supreme Court of Georgia as to Hayes’s first
enumeration of error, and affirm his convictions.
The record reflects that Hayes entered into an Alford4 plea and was sentenced
by the trial court to 20 years to serve 7 years with the balance on probation on count
1 (burglary); five years on count 3 (possession of tools for the commission of a
crime), to run concurrent with count 1; and 12 months on count 4 (misdemeanor
obstruction of a law enforcement officer), also to run concurrent with count 1. Almost
four years later, the trial court granted Hayes’s pro se motion for an out-of-time
appeal to his convictions and the accompanying sentence after the State filed no
response. This appeal follows.
A timely filed direct appeal from a judgment entered on a guilty plea is “a
prescribed means by which a defendant may challenge a guilty plea [when] the
3
301 Ga. 342 (801 SE2d 50) (2017).
4
See North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).
2
question on appeal is one which may be resolved by facts appearing in the record[.]”5
And on direct review, the State has the burden “to show that the plea was intelligently
and voluntarily entered,” which it may do “by showing on the record of the guilty
plea hearing that the defendant was aware of the rights being waived and the
consequences of the plea.”6 With these guiding principles in mind, we will now
5
Caine v. State, 266 Ga. 421, 421 (467 SE2d 570) (1996) (punctuation
omitted); accord Carey v. State, 293 Ga. 624, 624 (748 SE2d 891) (2013). Once
again, Hayes filed a motion for an out-of-time appeal, which the trial court granted
after the State failed to respond to the motion. Generally, an out-of-time appeal is
granted in Georgia when “a defendant has the right to file a direct appeal, but is
denied that right due to ineffective assistance of counsel.” Smith v. State, 269 Ga. 21,
21 (494 SE2d 668) (1998).While Hayes’s appeal contains no argument with regard
to any alleged ineffective assistance of counsel causing his failure to file a timely
appeal (although he made such an argument in his motion for out-of-time appeal), the
State has not contested that Hayes is entitled to an out-of-time appeal.
6
Hicks v. State, 281 Ga. 836, 837 (642 SE2d 31) (2007) (punctuation omitted);
accord King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998). In stark contrast to
the merits brief it filed with the Supreme Court of Georgia, the State’s brief to this
Court contains almost no citations to authority or argument applying the controlling
law to the relevant facts. Suffice it to say, this fails to comply with our rules. See
COURT OF APPEALS RULE 25 (b) (2) (“Part Two shall contain appellee’s argument and
the citation of authorities as to each enumeration of error. It shall also include the
standard of review if different from that contended by the appellant.”). In cases that
present issues of sufficient gravity to warrant review by the Supreme Court of
Georgia (like this one), it is not unreasonable for this Court to expect the State to
prepare its briefs to this Court with the same care and attention, or something
approaching the same degree of care and attention, as it applies to the briefs filed with
our Supreme Court.
3
address Hayes’s contentions that (1) his plea was not entered voluntarily, and (2) his
decision to proceed pro se was invalid.
1. Hayes argues that his plea was not entered into voluntarily because it was
not made knowingly. In doing so, he repeats and relies upon many of the contentions
made in his argument that the trial court improperly participated in the plea
proceedings. But that argument, as discussed supra, was rejected by our Supreme
Court. Nevertheless, even looking beyond this argument to the remainder of the
record before us, we disagree that Hayes entered into the guilty plea unknowingly or
involuntarily.
It is well established that to “properly form the basis for a judgment of
conviction, a guilty plea must be ‘voluntary, knowing, and intelligent.’”7 And as the
Supreme Court of the United States explained in Boykin v. Alabama,8 a defendant
who enters into a guilty plea must be advised of three federal constitutional rights:
“the privilege against compulsory self-incrimination, the right to trial by jury, and the
7
Raheem v. State, 333 Ga. App. 821, 824 (1) (777 SE2d 496) (2015)
(punctuation omitted); accord Lejeune v. McLaughlin, 296 Ga. 291, 291 (1) (766
SE2d 803) (2014); see also Hicks v. State, 281 Ga. 836, 837 (642 SE2d 31) (2007)
(“With a few limited exceptions, a plea of guilty generally waives all defenses except
that based on the knowing and voluntary nature of the plea.” (punctuation omitted)).
8
395 U.S. 238 (89 SCt 1709, 23 LE2d 274) (1969).
4
right to confront one’s accusers.”9 Thus, when a criminal defendant challenges the
validity of his guilty plea, the State “must demonstrate that the defendant intelligently
and voluntarily entered the plea,”10 which the State may do by “showing on the record
of the plea hearing that the defendant understood the rights he was waiving and the
consequences of his plea[.]”11
Here, the record reveals that prior to the trial court’s acceptance of Hayes’s
plea, there was an extensive and thorough colloquy with Hayes, in which the court
discussed with him, inter alia, his competency to enter into a guilty plea; his
understanding of the charges; his review of the guilty-plea form with the assistance
of counsel; his discussion of the underlying facts and potential defenses with counsel;
his satisfaction with counsel’s representation; his understanding of the potential
sentence as to each charge, including the minimum and maximum sentence; his
understanding that the trial court was not bound to accept the State’s
9
Raheem, 333 Ga. App. at 824 (1) (punctuation omitted); Foster v. State, 319
Ga. App. 815, 816 (2) (738 SE2d 651) (2013); Childs v. State, 311 Ga. App. 891, 891
(1) (717 SE2d 509) (2011); see also Boykin, 395 U.S. at 243.
10
Smith v. State, 311 Ga. App. 483, 484 (716 SE2d 549) (2011); accord Rocha
v. State, 287 Ga. App. 446, 448-49 (2) (651 SE2d 781) (2007).
11
Smith, 311 Ga. App. at 484 (punctuation omitted); accord Blackmon v. State,
297 Ga. App. 99, 99 (1) (676 SE2d 413) (2009).
5
recommendation; his understanding of the rights waived by entering into a guilty
plea, including each of the three Boykin rights; and his understanding of the collateral
consequences of pleading guilty. The State then provided a detailed recitation of the
factual basis for the guilty plea before offering its sentencing recommendation.
The record, then, establishes that Hayes understood the nature of the charges
against him, the rights he was waiving, and the consequences of the plea. As a result,
Hayes’s plea was entered into knowingly and voluntarily, and this enumeration of
error is without merit.12
2. In his final enumeration, Hayes argues that he was presented with the choice
of proceeding with counsel he no longer wished to retain or proceeding pro se, thus
rendering his decision to proceed pro se invalid. He also maintains that his decision
to proceed pro se was invalid because no waiver of counsel appears in the record. But
as the State rightly points out, this enumeration of error is a nonstarter because Hayes
entered into his guilty plea with the assistance of counsel and was not acting pro se.
12
See Belcher v. State, 304 Ga. App. 645, 648 (1) (b) (i) (697 SE2d 300)
(2010); see also McDaniel v. State, 271 Ga. 552, 553 (2) (522 SE2d 648) (1999)
(“Making a knowing and voluntary plea requires an understanding of the nature of
the charge, the rights being waived, and the consequences of the plea.”).
6
Indeed, as discussed supra, the record reflects that, prior to accepting Hayes’s
plea, the trial court inquired as to his examination of the guilty-plea form with the
assistance of counsel; his discussion of the underlying facts and potential defenses
with counsel; and his satisfaction with counsel’s representation. Furthermore, at a few
points during the guilty-plea hearing, Hayes conferred with his attorney, Hayes’s
attorney interjected questions when the trial court made inquiry into Hayes’s
competency to enter into a guilty plea, and Hayes answered in the affirmative when
asked if his attorney was standing next to him. Accordingly, there is no merit to
Hayes’s contention that his decision to proceed pro se was invalid because he was
represented by an attorney during his guilty-plea hearing.
For all these reasons, we affirm Hayes’s convictions.
Judgment affirmed. Reese and Bethel, JJ., concur.
7