Habeas corpus. Macon Superior Court. Before Judge Peagler.
Judgment vacated and case remanded with direction.
Adam M. Hames, for appellant.
Samuel S. Olens , Attorney General, Patricia B. Attaway Burton , Deputy Attorney General, Paula K. Smith , Senior Assistant Attorney General, Vicki S. Bass , Assistant Attorney General, for appellee.
Paul L. Howard, Jr. , District Attorney, Paige Reese Whitaker , Assistant District Attorney, amici curiae.
BLACKWELL, Justice. All the Justices concur, except Hines, P. J., Benham and Hunstein, JJ., who dissent.
In November 2005, Michael Lejeune pleaded guilty to murder, was convicted upon his plea, and was sentenced to imprisonment for life without the possibility of parole. Years later, Lejeune filed a petition for a writ of habeas corpus, alleging that his plea was invalid because, he said, he never was advised that, if he instead had insisted upon a trial, he could not have been compelled at that trial to testify against himself. Following an evidentiary hearing, the habeas court denied his petition. Lejeune appeals, and we vacate the decision of the habeas court and remand for further proceedings consistent with this opinion.
1. To properly form the basis for a judgment of conviction, a guilty plea must be voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742, 748 (I) (90 S.Ct. 1463, 25 L.Ed.2d 747) (1970). See also Hicks v. State, 281 Ga. 836, 837 (642 S.E.2d 31) (2007). For a plea to be knowing and intelligent, the accused must have " sufficient awareness of the relevant circumstances and likely consequences" of [296 Ga. 292] his plea. Brady, 397 U.S. at 748 (I). The circumstances and consequences of which the accused must be aware include the essential constitutional protections that the accused would enjoy if he instead insisted upon a trial, protections that he waives by pleading guilty and consenting to judgment without a trial. See Schneckloth v. Bustamonte, 412 U.S. 218, 238 (II) (C) (93 S.Ct. 2041, 36 L.Ed.2d 854)
(1973) (" Guilty pleas have been carefully scrutinized to determine whether the accused knew and understood all the rights to which he would be entitled at trial, and that he had intentionally chosen to forgo them." (Footnote omitted.)). See also Loyd v. State, 288 Ga. 481, 485 (2) (b) (705 S.E.2d 616) (2011). As the United States Supreme Court explained in Boykin v. Alabama, 395 U.S. 238 (89 S.Ct. 1709, 23 L.Ed.2d 274) (1969), among these essential protections is the constitutional privilege against compulsory self-incrimination. See id. at 243. In this case, Lejeune alleged that his plea was invalid because no one advised him of his privilege against self-incrimination.
In its order denying the petition for a writ of habeas corpus, the habeas court proceeded from the premise that the Warden had the burden of proving that Lejeune entered his guilty plea voluntarily, knowingly, and intelligently, and to carry that burden over the allegations of the petition in this case, the habeas court reasoned, the Warden had to show that Lejeune understood at the time of his plea that, if he had insisted upon a trial, he could not have been compelled at trial to testify for the prosecution. The habeas court concluded in the end that the Warden carried that burden. As a basis for its conclusion, the habeas court appears to have relied in significant part on the fact that the prosecution of Lejeune spanned several years, and it involved numerous pretrial hearings, a trial by jury in March 2005 that ended in a mistrial, and a second trial by jury in November 2005 that was underway when Lejeune pleaded guilty. Whether or not Lejeune was advised of his privilege against self-incrimination at or in connection with the proceeding in which he entered his plea, the habeas court found that he already had an adequate understanding of the constitutional privilege by virtue of earlier events in the course of his prosecution. On appeal, Lejeune contends that a number of these earlier events on which the habeas court relied do not actually support its finding, and we agree.
[296 Ga. 293] For instance, the habeas court pointed to three pretrial hearings in which Lejeune (through counsel) asserted his privilege against self-incrimination. But as Lejeune notes, a pretrial hearing is not a trial, and without more, the assertion of the privilege in a pretrial hearing would not necessarily put an accused on notice that he would enjoy the same privilege in other sorts of proceedings, such as a trial. See Wilson v. Kemp, 288 Ga. 779, 780 (727 S.E.2d 90) (2011) (it is the privilege at trial against self-incrimination that is significant for purposes of a guilty plea). See also Campos v. State, 292 Ga. 83, 85 (734 S.E.2d 359) (2012); Adams v. State, 285 Ga. 744, 746 (1), n. 3 (683 S.E.2d 586) (2009). But see Hawes v. State, 281 Ga. 822, 825 (642 S.E.2d 92) (2007). Moreover, the first of these hearings was in December 2001, and the others were in June 2003. Lejeune did not enter his guilty plea until November 2005, nearly two-and-a-half years later. Cf. Bazemore v. State, 273 Ga. 160, 162 (1) (535 S.E.2d 760) (2000) (advice given to petitioner in connection with 1988 pleas did not show that petitioner was aware of his constitutional rights at the time of his 1990 plea). For these reasons, the pretrial hearings on which the habeas court relied do not support its finding that Lejeune understood at the time of his plea that, if he instead insisted upon a trial, he could not be compelled to incriminate himself.
The habeas court also relied on the testimony of attorney Brian Steel -- who represented Lejeune in connection with his second trial, but withdrew prior to Lejeune entering his guilty plea -- which, according to the habeas court, showed that Steel advised Lejeune of his " Boykin rights." But as Lejeune argues on appeal, the habeas court appears to have taken a portion of that testimony out of context and misconstrued it. When Steel was deposed in connection with the habeas proceeding, he was asked on direct
examination about the consultations that he had with Lejeune in connection with the second trial, especially whether he and Lejeune discussed that Lejeune could choose whether to testify at the trial. In response to these questions, Steel said:
It wasn't ripe yet because [Lejeune] didn't actually -- it wasn't the defense case in either trial. I don't know. I mean, I'm very thorough with my clients. So I don't know. I know I did discuss what we would call Boykin... rights with him because he never accepted a guilty plea when I was defending him.
This is the testimony on which the habeas court relied. But Steel subsequently testified that he never advised Lejeune about the constitutional rights that he would waive by virtue of a guilty plea [296 Ga. 294] because, during the time Steel represented Lejeune, " it never got that far." In addition, Steel later testified unequivocally that he had " no memory" of advising Lejeune about his privilege against self-incrimination. And most important, Steel was asked on cross-examination: " And I believe you said on [d]irect that you know that you did not discuss the Boykin rights with [Lejeune]; is that also correct?" (Emphasis supplied.) To this question, Steel replied: " I feel it's very comfortable, yes." From a consideration of the entirety of his testimony, it seems clear to us that Steel misspoke when he testified on direct examination that he discussed the " Boykin rights" with Lejeune in connection with the second trial. The reliance of the habeas court upon that misstatement was clearly erroneous.
2. Because these findings of the habeas court find no support in the record, Lejeune argues that the Warden failed to prove that his plea was voluntary, knowing, and intelligent. Maybe that is so, but it matters only to the extent that the Warden must bear the burden of proving these things. Beginning with Purvis v. Connell, 227 Ga. 764 (182 S.E.2d 892) (1971), we have held in a number of cases that, whenever a habeas petitioner alleges that the plea on which his conviction rests was not voluntary, knowing, or intelligent, the respondent bears the burden of disproving those allegations. That was the premise from which the habeas court proceeded in its consideration of the proof in this case, and it is the premise as well of the argument by Lejeune on appeal that he is entitled to habeas relief. But for the reasons that follow, we now conclude that Purvis and its progeny are based on a misunderstanding of Boykin, and they are inconsistent with the historical understanding in Georgia of the writ of habeas corpus. Accordingly, we overrule Purvis and its progeny, and we hold that Lejeune bears the burden as the petitioner of proving that his plea was not voluntary, knowing, or intelligent.
Our law appears always to have recognized a presumption of regularity with respect to the final judgments of courts of general jurisdiction, see LeMaster v. Orr, 101 Ga. 762, 764 (1) (29 S.E. 32) (1897), and criminal judgments of conviction were no different. See Wells v. Pridgen, 154 Ga. 397, 399 (114 S.E. 355) (1922). When a judgment of conviction was assailed by way of a petition for a writ of habeas corpus, our law presumed the regularity of the judgment, and it was understood that the petitioner bore the burden of overcoming the presumption. See, e.g., Gay v. Balkcom, 219 Ga. 554 (134 S.E.2d 600, 601) (1964); Stanforth v. Balkcom, 217 Ga. 816, 816 (125 S.E.2d 505) (1962); Solesbee v. Balkcom, 207 Ga. 352, 353 (1) (61 S.E.2d 471) (1950); Wilcoxon v. Aldredge, 193 Ga. 661, 668 (19 S.E.2d 499) (1942). And this Court historically treated the presumption as especially warranted when the judgment of conviction was based upon a plea of [296 Ga. 295] guilty. See, e.g., Sharpe v. Smith, 225 Ga. 52, 54 (6) (165 S.E.2d 656) (1969) (" Since there is a presumption in favor of the validity of a sentence, especially where based upon a plea of guilty, the burden of overcoming this presumption is upon the prisoner." (Citation omitted.)); Dutton v. Parker, 222 Ga. 532, 533 (150 S.E.2d 833) (1966) (" There is a presumption in favor of the validity of sentences and this is especially true where, as ...