dissenting.
In Strickland v. Washington, 466 U. S. 668, 689 (III) (A) (104 SC 2052, 80 LE2d 674) (1984), the Supreme Court of the United States cautioned that
[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Cit.]
The record in this case shows that the habeas corpus court fully complied with this admonition, by “judging] the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland v. Washington, supra at 690 (III) (A). Today, however, this Court ignores the express warning in Strickland, and does indeed conduct its own de novo hindsight assessment of trial counsel’s performance. Based solely upon that improper analysis, the majority “conclude^] that trial counsel was ineffective in failing to recognize and fully investigate a double jeopardy claim, and in failing to reasonably inform petitioner of the merits of that defense prior to the entry of his guilty plea ....” Majority opinion, pp. 641-642.1 submit that such a conclusion is not only contrary to the undisputed facts of this case, it is also inconsistent with the well-established legal principles applicable to an ineffective assistance of counsel claim.
Moreover, and maybe more important from an overall perspective of habeas corpus jurisprudence, today’s opinion is completely inconsistent with the well-recognized principle that,
“[i]n a habeas corpus hearing there is a presumption in favor of the conviction or judgment unreversed, and that the decision of the court convicting the prisoner was well founded, . . . and the burden is upon the prisoner to overcome this presumption.” [Cit.]
Broome v. Matthews, 223 Ga. 92, 94 (2) (153 SE2d 721) (1967). The habeas court found that Gerisch did not produce any probative *647documentary evidence to rebut the presumption that his state court conviction was valid, and that he even failed to prove the relevant facts and circumstances of his municipal court conviction upon which he based his claim of a double jeopardy violation. He submitted only uncertified and inadmissible copies of an incident report and disposition sheet, even though a “certified copy of a conviction is primary evidence, . . . and is the best proof. [Cits.]” Howard v. State, 204 Ga. App. 743 (1) (420 SE2d 594) (1992). The majority concedes that there was not any documentary evidence to support the claim, but, relying entirely on Gerisch’s own testimony, it nevertheless reverses the habeas court’s conclusion that he failed to carry his burden of proof. Thus, the habeas courts of this state should be apprised that, from this day forward, they are no longer authorized to enforce the rules of evidence and to make credibility determinations, but that, as a matter of law, they must now accept the self-serving oral testimony of a petitioner, standing alone, as sufficient to shift the evidentiary burden to the respondent to prove that the conviction and sentence are constitutional. I submit that this is a radical departure from controlling authority and, in effect, creates an entirely new presumption that a conviction is invalid and places on the respondent the burden of overcoming this presumption of invalidity. I further submit that, when the proper standard of review and the correct analysis are applied to the evidence that appears in the record in this case, it is absolutely clear that the denial of habeas corpus relief should be affirmed.
In the municipal court, Gerisch pled guilty to disorderly conduct for fighting. In the superior court, he subsequently entered guilty pleas to several state charges, including aggravated battery. The municipal and state charges are based upon the same incident. Under the circumstances, however, the more expansive principle of statutory double jeopardy does not apply, because the initial conviction was for a municipal offense. State v. Burroughs, 244 Ga. 288, 289 (1) (260 SE2d 5) (1979), vacated on other grounds, Burroughs v. Georgia, 448 U. S. 903 (100 SC 3044, 65 LE2d 1134) (1980), on remand, 246 Ga. 393 (271 SE2d 629) (1980). Thus, all double jeopardy issues raised by Gerisch are controlled by the more limited constitutional standard. State v. Burroughs, supra at 289-291 (2), (3).
The habeas court determined that Gerisch did not have a viable double jeopardy claim under the Fifth Amendment, because he pled guilty in the superior court. By this holding, the habeas court correctly applied the principle that where, as here, a constitutional double jeopardy violation is not apparent on the face of the existing record, “ ‘a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.’ ” United States v. Broce, 488 U. S. 563, 574 *648(II) (A) (109 SC 757, 102 LE2d 927) (1989). Since Gerisch waived his constitutional double jeopardy defense, he does not have a viable habeas claim unless he proved that that waiver was the result of a violation of his Sixth Amendment right to effective assistance of trial counsel. “A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce, supra at 574 (II) (A).
To prevail on an ineffective assistance of counsel claim, Gerisch was required to show that his attorney’s performance in connection with the double jeopardy defense was deficient and that, but for that deficient performance, there is a reasonable probability that he would not have pled guilty. Strickland v. Washington, supra. The habeas court specifically determined that Gerisch’s claim of ineffective assistance of counsel in the plea proceeding was without merit. In Division 3, the majority concludes that, notwithstanding the habeas court’s findings, Gerisch made a sufficient showing of trial counsel’s deficient performance, because “she relied on the advice from the district attorney who was prosecuting Gerisch in superior court, and counsel’s own misapprehension that the prosecution in city court could not provide a basis for a valid double jeopardy claim.” Majority opinion, p. 645. What this pronouncement of counsel’s deficiency lacks, however, is any proof that the prosecutor’s advice or the attorney’s own concern about the viability of the double jeopardy defense was misplaced. If the District Attorney and defense counsel were correct and Gerisch did not have a viable double jeopardy defense, then there was certainly no deficiency in recommending that he plead guilty to the aggravated battery charge. Nothing cited in the majority opinion remotely points to the conclusion that the double jeopardy defense Gerisch waived was valid.
The constitutional prohibition is against being twice placed in jeopardy for the “same offense.” . . . “ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....’” [Cit.]
State v. Burroughs, supra at 290 (3). As the habeas court correctly noted, Gerisch failed to submit any credible evidence as to his prosecution for the municipal offense, even with regard to the terms of the ordinance that he was alleged to have violated. “The proper method of proving a city ordinance is by production of the original or *649of a properly certified copy. [Cit.]” Police Benevolent Assn. of Savannah v. Brown, 268 Ga. 26, 27 (2) (486 SE2d 28) (1997). The majority concedes that Gerisch’s testimony cited in Division 1 constitutes evidence only as to the “conduct” which led to the initiation of the disorderly conduct charge against him. Majority opinion, p. 643. As such, that testimony is completely irrelevant to the issue of whether, as a matter of constitutional law, his prosecution for that crime was for the “same offense” as the aggravated battery to which he pled guilty. The dispositive issue is not his “conduct,” but the elements of the offense which underlay his prosecution in the municipal court. There was no proof that the physical injury to the victim which formed the basis of the subsequent charge of aggravated battery was an element of the previously prosecuted crime of disorderly conduct. Such documentary evidence as Gerisch did produce regarding the proceedings in the municipal court was hearsay and lacking in any probative value. Brown v. State, 274 Ga. 31, 32 (1) (549 SE2d 107) (2001) (narrative portions of police reports inadmissible, nonprobative hearsay). Therefore, on the record before the habeas court and now before this Court, it is simply impossible to determine whether “disorderly conduct,” as defined in the ordinance, is the “same offense” as “aggravated battery,” as defined in OCGA § 16-5-24. Compare State v. Burroughs, supra at 290 (3). Moreover, absent some probative evidence of what actually transpired in the municipal court, it cannot be said that any evidence necessary to prove an element of aggravated battery was “used up” in proving the violation of the disorderly conduct charge. Thus, Gerisch completely failed to show that he had a valid constitutional double jeopardy defense. If he did not have such a defense, his attorney was not ineffective for recommending that he not pursue it. Moreover, absent a showing of a double jeopardy claim which was viable, there is no “reasonable” probability that he would have rejected the State’s plea bargain and entered a not guilty plea. The anomalous result of today’s opinion is that habeas relief is now available in this state to a petitioner who simply claims that he or she would not have pled guilty because plea counsel did not fully inform the petitioner about a possibly viable defense.
Furthermore, even assuming that Gerisch had proved that he waived a valid double jeopardy defense, that still would not necessarily show that his attorney’s performance was deficient. The Constitution only guarantees effective, not errorless, counsel. Jackson v. State, 276 Ga. 94, 96 (6) (575 SE2d 447) (2003). Here, Gerisch’s trial lawyer testified that, after she investigated the double jeopardy issue and concluded that it was unlikely to prevail, she so advised her client, and apprised him that, if it was not successful, the State would withdraw its offer of a plea bargain, which encompassed all of the *650offenses and not just aggravated battery. However, she also informed Gerisch that she would assert the defense if he was prepared to forgo the prosecution’s offer. After receiving all of this information, Gerisch decided to enter a plea.
Decided October 25, 2004 Reconsideration denied November 22, 2004. Keith E. Gerisch, pro se. Thurbert E. Baker, Attorney General, Julie A. Adams, Assistant Attorney General, for appellee.This undisputed evidence of record clearly supports the habeas court’s finding that counsel was not ineffective.
Counsel has a duty to investigate and to provide informed legal advice to the client and “first must evaluate potential avenues and advise the client of those offering possible merit.” [Cit.] However, after having been informed, the defendant, and not his attorney, makes the ultimate decision about, for example, what line of defense to pursue, [cit.] ...
Morrison v. State, 258 Ga. 683, 686 (3) (373 SE2d 506) (1988). As the habeas court correctly noted, Gerisch “was given his options and he decided to plead guilty to aggravated battery.” Accordingly, even assuming for the sake of argument that trial counsel may have been wrong in her assessment of the viability of the double jeopardy defense, that does not constitute a basis for setting aside Gerisch’s guilty plea. “ ‘Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight (or) result.’ [Cit.]” Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998). The decision either to plead guilty and accept the State’s plea bargain or to gamble and risk losing a plea of constitutional double jeopardy was a fundamental matter of strategy and tactics. It is entirely understandable that Gerisch’s attorney was circumspect in assessing the validity of the double jeopardy claim, since the defense would not be judged under the more expansive statutory provisions, but would have to satisfy the stricter constitutional standard. The majority errs in engaging in hindsight and second-guessing so as to characterize that strategic and tactical decision as ineffectiveness on the part of defense counsel who appears to have been a conscientious, competent and well-intentioned advocate for her client. Therefore, I respectfully dissent to the reversal of the judgment of the habeas corpus court.
*651James C. Bonner, Jr., Sarah L. Gerwig, Mark A. Rogers, amici curiae.