August 13, 2014
Sentence. Newton Superior Court. Before Judge Wynne.
Michael W. Tarleton, James C. Bonner, Jr., for appellant.
Layla H. Zon, District Attorney, Candice L. Branche, Assistant District Attorney, for appellee.
RAY, Judge. Andrews, P. J., and McFadden, J., concur.
A jury found James Lee Bell guilty of theft by shoplifting. At his sentencing hearing, the State introduced certified copies of guilty pleas that Bell had entered in four prior shoplifting cases for purposes of recidivist punishment under OCGA § 16-8-14 (b) (1) (C). On appeal, Bell argues that the trial court erred in sentencing him as a recidivist because the State failed to sufficiently establish that he had waived his right to counsel in two of the prior shoplifting convictions. For the reasons that follow, we affirm.
In recidivist sentencing, the State bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas. See Nash v. State, 271 Ga. 281, 285 (519 S.E.2d 893) (1999). If the defendant was not represented by counsel at the time of the guilty pleas, the State can satisfy its burden by showing that the defendant had waived his right to counsel. See Beck v. State, 283 Ga. 352, 353-354 (2) (658 S.E.2d 577) (2008). " The State can do this by introducing a transcript of the plea hearing, a docket entry or another document affirmatively showing that the right to counsel was waived." Id. at 354 (2). When the State is able to show that the defendant waived his right to counsel, a " presumption of regularity" attaches to the plea proceedings and the burden then shifts to the defendant to show any irregularities in the proceedings. Id.
Bell contends that the State should have the additional burden of proving that he knowingly and voluntarily waived his right to counsel. Specifically, Bell argues that the State must prove that he was aware at the time of the waiver that his guilty pleas could later be considered, for recidivist sentencing purposes, if he committed future shoplifting offenses. However, the presumption of regularity [328 Ga.App. 814] which final judgments enjoy necessitates that the State only be required to show evidence that the defendant waived his right to counsel. Beck, supra at 354 (2). Once such evidence is shown, it is presumed that the defendant waived his right knowingly and intelligently and that the plea would not have been accepted by the trial court otherwise. Id.
With respect to the two pleas at issue here, the State introduced documents showing that Bell had waived his right to counsel. Those documents were sufficient to meet the State's initial burden, whereupon the burden
shifted to Bell to produce evidence that the pleas were invalid. Nash, supra at 285. A defendant can attempt to meet his burden by relying on a plea transcript or by providing testimony or other affirmative evidence regarding the taking of the plea. Id. " A silent record or the mere naked assertion by an accused that his prior ... plea was not made knowingly and intelligently is insufficient." Id.
Here, Bell has offered no evidence to show that the pleas were invalid. As Bell failed to satisfy his burden, the trial court was authorized to rely on the guilty pleas at issue for the purpose of sentencing Bell as a recidivist. Beck, supra.
Andrews, P. J., and McFadden, J., concur.