Holland v. State

Beasley, Presiding Judge,

dissenting.

No citation of authority need be given for the principle that no person should be punished for an act which is not a crime, or which does not constitute the crime with which he is charged.

An act of sodomy occurs “when [a person] performs or submits to any sexual act involving the sex organs of one person and the mouth *824or anus of another.” OCGA § 16-6-2 (a).1 What “involving” means is that there must be “some . . . actual contact” between the two body parts. It is contact short of penetration. Carter v. State, 122 Ga. App. 21, 23 (176 SE2d 238) (1970); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986).

The indictment charged an act “involving [defendant’s] sex organ and the anus of [the child],” the words of the Code. It did not mention “contact.” The State recited that the evidence would show that the child described to a detective “an incident where [defendant] got on top of her while in his underwear.” The State further recited that, referring to the same incident, defendant “described doing it with her doggie style, but that he had clothes on during that transaction, that he was not nude or in his underwear. She described an incident in which he was in his underwear doing this type of activity. He acknowledged an incident of that nature occurring but claimed that he was wearing clothing at the time.”

After the court heard from both sides, it distinguished the count of aggravated sodomy from the three counts of child molestation and said, “I’ve not heard any factual basis as to the allegation of anal sex.” Defense counsel assured the court that defendant was pleading guilty also to the aggravated sodomy charge because “[t]here was a touching, yes, sir. One time she had her back to him and she said she felt something. He said he had his pants on. She thought he had his underwear on or was — did not have anything on. I believe that’s what both of them had said. And whether or not there was actual contact or not Mr. Holland has been in a position where he’s wanted to plead guilty to the charges, but that’s the actual — [the district attorney] showed me the video [of the child’s statement] so that we would both know what she was going to say. . . . But I believe that’s the gist of the evidence is she is not sure and Mr. Holland said that he had his pants on.”

The factual basis presented does not show sodomy, that is, “actual contact” by defendant’s penis with the child’s anus, although it does show a touching through some clothing, either underwear or pants. Even if defendant is not permitted to say he was unaware of the words of the indictment because he signed it in open court, he would not know from the words that to constitute the crime, “involving” had to be an actual touching, skin-to-skin.2 So his acknowledgment of guilt would simply be in conformity with the recitations of what the evidence would show.

*825This is not a case where the factual basis is not spread on the record, which under Ford v. State, 248 Ga. 241, 242 (2) (282 SE2d 308) (1981), would not be reversible. Nor is it a case where the court did not make an inquiry on the record to satisfy itself that there was a factual basis, as urged by USCR 33.9.3 It is rather a case where the factual basis is set out and shows the absence of the crime. The factual basis was insufficient to establish that for which defendant was sentenced to serve, in effect, three years more than was imposed for the molestations. To accept a plea under such circumstance is error under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Breland v. Smith, 247 Ga. 690, 691-692 (2) (279 SE2d 204) (1981); Watt v. State, 204 Ga. App. 839, 840 (1) (420 SE2d 769) (1992).

The factual basis is crucial to the assurance of a valid plea, as demonstrated in Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230) (1989). There it was stated: “Although the trial court did not make a determination concerning the factual basis for appellant’s plea, as urged by Rule 33.9 of the Uniform Rules for the Superior Courts, we have held that it is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when the transcript presents evidence that the trial court was aware of the factual basis. Clark v. State, 186 Ga. App. 106, 107-108 (2) (366 SE2d 361) (1988).” The court proceeded to examine the district attorney’s summary of the evidence the State was prepared to present at trial, which showed the factual basis.

In Clark, too, although the trial court did not make a determination concerning the factual basis, this court reviewed the State’s summary of evidence and assured itself that there was indeed one. We concluded: “Since the transcript contained a factual basis for appellant’s plea; it was not necessary for the trial court to affirmatively state that a factual basis existed. There was no error in accepting appellant’s plea. Brannon v. State, 176 Ga. App. 49 (2) (335 SE2d 163) (1985).” Id. at 108.

The same is true of Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990), where the court stated: “At the outset we note that the trial judge did not state on the record that he was satisfied that a factual basis existed for appellant’s plea of guilty. However, such an *826express finding is unnecessary as the record establishes that the trial judge was aware of the factual basis, because of the prosecutor’s summarization of the operative facts on the record.”

Decided July 16, 1993. Winn, Price & Winn, Frank C. Winn, for appellant. David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

In Goodman v. Davis, 249 Ga. 11, 16 (2) (287 SE2d 26) (1982), the trial court and this court were assured of the factual basis for the plea, that the evidence that would be presented at trial would show the elements of the crime to which the defendant was entering a plea of guilty. In Goodman, the facts constituted the offense and the defendant merely misunderstood its elements, so the plea was deemed valid.

In this case, the transcript affirmatively shows that there is not a factual basis showing aggravated sodomy. Compare McGuire v. State, 209 Ga. App. 813 (434 SE2d 802) (1993), where the facts were held to constitute aggravated child molestation.

The plea cannot stand. It was error to reject defendant’s motion to withdraw his plea of guilty to the charge of aggravated sodomy.

In this case defendant is charged with aggravated sodomy because the alleged act was against a child, so the force and against-will elements, which elevate sodomy into aggravated sodomy, were conclusively proved by her age.

Whether the use of a condom could constitute a defense is not before us.

We have “strongly urged” that trial judges follow the imploring of USCR 33.9. See, e.g., Scurry v. State, 194 Ga. App. 165, 167 (390 SE2d 255) (1990). It may be time to require that the factual basis appear on the record, just as the record must affirmatively show that defendant’s plea was intelligent and voluntary. Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). How can a defendant have “a full understanding of what the plea connotes and of its consequence,” Boykin, supra at 244, if he or she does not understand what the elements of the crime are and that the expected evidence establishes them?