dissenting.
Boykin v. Alabama was rendered in 1969. 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The United States Supreme Court held in that case that it is error for a state trial court to accept a defendant’s guilty plea without an affirmative showing on the face of the record that the plea was intelligent and voluntary: “[presuming waiver from a silent record is impermissible.” Id. at 242. Because a record of the guilty plea hearing helps to ensure that the State can meet its burden of proof on the voluntariness of the plea and to enable reviewing courts to determine that the rights of the accused have been protected, see State v. Germany, 245 Ga. 326, 328 (265 SE2d 13) (1980), this Court since 1982 has expressly required that the record of a guilty plea hearing must be adequate for a reviewing court to determine whether the mandate of Boykin v. Alabama was followed. Goodman v. Davis, 249 Ga. 11 (287 SE2d 26) (1982). Reinforcing this mandate, the Uniform Superior Court Rules have required the superior courts of this State since July 1,1985 to make and preserve a verbatim record of the proceedings at which a defendant enters a plea of guilty. USCR 33.10.
Flint pled guilty to a felony offense in Fulton County Superior Court on June 29, 1988, meaning that Boykin v. Alabama had been the law for 19 years; that Goodman and this Court’s requirement of an adequate record of a guilty plea hearing had been the law for six years; and that USCR 33.10 had for 12 months almost to the day mandated the making and preservation of a verbatim record of guilty plea proceedings. Yet it is uncontroverted that the only record of Flint’s felony guilty plea proceeding consists of indecipherable notes made by a court reporter who was a “pen writer and not a machine shorthand reporter,” i.e., someone who hand wrote the proceedings by means of a personal shorthand. According to Melanie Fisher, a *44current Fulton County Superior Court court reporter who inquired into the matter:
The court reporter who took the Flint plea was a Ms. Helen Clark, who was a pen writer and not a machine shorthand reporter. She is no longer available to transcribe the plea proceeding.
The style of court reporting employed by Ms. Clark has not been commonly used for approximately 20 years.
I contacted a reporter in South Georgia who is one of the few remaining pen writers that I know of to inquire if she could perhaps transcribe it as requested. She informed me that she would not feel comfortable making such an attempt because pen writing was such a personal style of reporting. She, therefore, would not feel comfortable about the accuracy of producing a typed transcript from someone else’s notes.
I was also unable to find any backup tape recording of the proceedings.6
According to a supplemental brief from the State that is contained in the record,7 the trial judge who presided over Flint’s guilty plea hearing
is a retired octogenarian. He now lives in senior citizens housing and suffers from declined health. ... The octogenarian court reporter retired some almost [sic] 20 years ago and no longer lives in the state of Georgia. Any court notes would be in the shorthand of the above-referenced court reporter who cannot be located for the purposes of deciphering and authentication.
It thus appears that the court reporter has not been “available” for “some almost 20 years.”8 No explanation was provided why this particular court reporter was allowed to become unavailable before she had provided some manner of a transcript capable of being deciphered by persons other than herself.
*45OCGA § 9-14-48 (e) places the burden on the State to make a “particularized showing” as to the reasons why it has been “prejudiced in its ability to respond to the petition [as the result of] delay in its filing.” Under the plain language of this statute, the burden shifts to the petitioner only after the State has made this particularized showing. I respectfully dissent to the majority’s affirmance of the habeas court’s conclusion that the State carried its burden under OCGA § 9-14-48 (e). At the time of Flint’s plea hearing, the law was crystal clear that the State had a constitutional obligation to make and preserve a verbatim record of the proceedings at which a defendant enters a plea of guilty. Regardless of the questionable wisdom of a court of record allowing a court reporter to make a verbatim record of a guilty plea hearing in such a “personal” manner that no one else could transcribe it, a court of record clearly fails in its mandate to preserve a record of guilty plea hearing proceedings for appellate review when it allows such personal notes to serve as the sole record of the proceedings without concurrently maintaining a means of deciphering those notes. By utilizing a court reporter whose shorthand notes could not be read by any other person and allowing that court reporter to become unavailable before those shorthand notes were preserved in a manner enabling others to transcribe them, the State failed to ensure that it would be able to meet its burden of proof on the voluntariness of the plea and to enable reviewing courts to determine that the rights of the accused have been protected.9
Moreover, as the State’s admission in its supplemental brief establishes, this is not a case in which the transcript has been lost over time: this transcript has been lost for “some almost 20 years,” when the court reporter, who transcribed the hearing in such a “personal” manner that no one else can decipher it, retired and moved out of state without leaving behind any means for another to transcribe her notes. The evidence adduced by the State establishes uncontrovertedly that no other record of Flint’s guilty plea hearing exists; it also establishes uncontrovertedly that even another pen writer could not read this court reporter’s notes, thereby eliminating any possibility that someone closer in time to the court reporter’s retirement might have been able to decipher her notes. It thus appears, based on the uncontroverted evidence, that the State never established that the record of Flint’s guilty plea was ever available. It seems that the only thing Flint could have accomplished by filing his *46petition earlier would have been to reveal sooner rather than later the total unavailability of the guilty plea hearing transcript.10
Decided October 18, 2010. Lorenzo E. Flint, Jr., pro se. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, David K. Getachew-Smith, Assistant District Attorneys, for appellee. Sarah L. Gerwig-Moore, Leigh S. Schrope, amici curiae.Given this uncontroverted evidence that the State could not have been prejudiced by Flint’s delay in filing his petition, I would hold that the habeas court clearly erred as a matter of fact when it concluded that Flint’s delay in filing his petition had any adverse impact on the State’s ability to provide a transcript of the guilty plea hearing.
I am authorized to state that Justice Thompson joins in this dissent.
Fisher then speculated that, even had she found such a recording, it “probably would not be a viable option” because “more likely than not” it would be unusable due to its age.
Although the trial court at the hearing reiterated some of this information in its comments and the majority cites it as evidence, none of this information is present in the record in the form of any sworn document or testimony.
It is well established that a party in a criminal proceeding may make admissions in judicio in pleadings, motions, and briefs. See Bannister v. State, 202 Ga. App. 762 (1) (b) (415 SE2d 912) (1992).
It is mere speculation whether, had Flint filed his petition earlier, the State could have recreated the hearing proceedings through the recollection of the trial judge, the ADA and defense counsel.
Moreover, the State failed to prove that the participants to the proceedings (other than Flint) lacked all memory of the proceedings as it adduced evidence only as to the assistant district attorney (no memory) and defense counsel (deceased).