Foster v. State

738 S.E.2d 651, 319 Ga. App. 815, 2013 Fulton County D. Rep. 374, 2013 WL 617074, 2013 Ga. App. LEXIS 79
CourtCourt of Appeals of Georgia
DecidedFebruary 20, 2013
DocketA12A2355
StatusPublished
Cited by6 cases

This text of 738 S.E.2d 651 (Foster v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. State, 738 S.E.2d 651, 319 Ga. App. 815, 2013 Fulton County D. Rep. 374, 2013 WL 617074, 2013 Ga. App. LEXIS 79 (Ga. Ct. App. 2013).

Opinion

McFADDEN, Judge.

After a jury trial, Larry Foster was convicted of felony theft by shoplifting, see OCGA § 16-8-14 (b) (1) (C), and sentenced as a recidivist. The trial court denied his motion for new trial. Foster challenges his treatment as a recidivist, but the trial court did not err in considering, for purposes of sentencing, his conviction on a prior offense to which he had pled guilty. He also challenges the effectiveness of his trial counsel, but he has not shown that he was prejudiced by deficiencies in his counsel’s performance. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that on November 9, 2006, Foster entered a Dollar General store carrying a bag, placed items inside his jacket and left the store [816]*816without paying for those items. A store employee witnessed Foster take the items and called the police. Shortly thereafter, law enforcement officers apprehended Foster near the store. They found Foster’s bag, containing the stolen merchandise, nearby. Similar transaction witnesses testified to other occasions where Foster had entered stores, placed merchandise inside his jacket, left without paying for the items, and then stashed the items in a bag.

2. Recidivist sentence.

The trial court sentenced Foster as a recidivist under OCGA § 17-10-7 (c), after the state presented evidence of three prior felony convictions. Foster objected to the admission of one of the prior convictions on the ground that it stemmed from a constitutionally invalid guilty plea.

To support a recidivist sentence, a guilty plea must be valid under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). See State v. Cooper, 281 Ga. 63 (1) (636 SE2d 493) (2006). The United States Supreme Court held in Boykin that “[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.” 395 U. S. at 243. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Beckworth v. State, 281 Ga. 41, 42 (635 SE2d 769) (2006). The record must show that a defendant entering a guilty plea was specifically advised of the three Boykin rights. See Childs v. State, 311 Ga. App. 891, 891-892 (1) (717 SE2d 509) (2011).

(a) Foster claims that he was not specifically advised of one of the Boykin rights —• the right to a jury trial — during the plea proceeding on the prior offense. The record of the plea proceeding in the prior case belies Foster’s claim that he was not adequately advised of this right.

During the plea colloquy, the court first mentioned Foster’s right to jury trial while informing him that he could withdraw his guilty plea after sentencing: “[I]f when we’re through here I announce a sentence which is more severe than what you bargain for then the law gives you the right if you want to at that time to withdraw your plea of guilty, or your tender of a plea of guilty and go to trial before a jury [.]” Later in the colloquy, Foster indicated that he understood that at any point during the plea proceeding he could change his plea and “[h] ave a trial.” The transcript also shows that the prosecutor referred to the right to a jury trial while informing Foster about rights inherent in a jury trial that he would waive by pleading guilty. The prosecutor identified those rights as the right to confront his accuser, the right to cross-examine the state’s witnesses, the right to subpoena [817]*817witnesses, and the right either to testify in his own behalf or to remain silent, and he stated that a guilty plea “means that you will not have a jury trial, and there are certain rights that you can only use if you do have a jury trial and we want to make sure you understand what you’re going to be giving up.” Foster indicated that he understood this. The prosecutor then asked Foster if he wanted to “waive those rights, give up those rights that you would have if you had a jury trial, and go ahead with your plea of guilty here.” Foster replied “[y]es.”

Foster argues that the information given him in the plea colloquy was insufficient because the phrase “right to a jury trial” was not used, except in the limited context of withdrawing his plea after sentencing, and he analogizes this case to Wilson v. Kemp, 288 Ga. 779, 779-780 (727 SE2d 90) (2011), in which our Supreme Court held that the trial court’s discussion of a defendant’s “right to remain silent” was specifically limited to the plea hearing itself, rather than at trial, and did not comply with the Boykin requirements. But “[njothing in Boykin requires the use of any precisely-defined language or ‘magic words’ during a guilty plea proceeding.” (Citation omitted.) Brown v. State, 290 Ga. 50, 52 (2) (718 SE2d 1) (2011).

[A]s long as the trial court, in explaining the three constitutional rights an accused must waive in order to enter a valid guilty plea, makes sure the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language of those three rights as set forth in Boykin[.]

(Citations and punctuation omitted.) Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92) (2007). The court in Wilson noted that “the record in th[e] case fail[ed] to show that any comment by the trial court, or by [the defendant’s] counsel, informed him that by pleading guilty he would waive his privilege against compulsory self-incrimination.” (Citation and punctuation omitted; emphasis supplied.) Wilson, 288 Ga. at 780. Here, in contrast, the statements by the court and prosecutor during the plea colloquy, taken as a whole, conveyed the core principle that if Foster did not enter a plea he could have a jury trial. See Rogers v. State, 286 Ga. 55, 56 (685 SE2d 281) (2009) (underlying purpose of Boykin — to ensure defendant’s receipt of adequate information about his rights so that he can make an intelligent and voluntary decision about pleading guilty — is met if language used during plea proceeding adequately conveyed to him the core principles of the Boykin rights); Hawes, 281 Ga. at 824 [818]*818(“[T]he focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. To hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue between the trial court and the accused.”) (citation omitted). See also Campos v. State, 292 Ga. 83 (734 SE2d 359) (2012) (identifying, as an instance in which the plea court “explicitly informed [the defendant] of his right to trial by jury,” the court’s statement “that a trial had been scheduled for his case, and if he wished, his ‘case would be tried before a jury’ ”).

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738 S.E.2d 651, 319 Ga. App. 815, 2013 Fulton County D. Rep. 374, 2013 WL 617074, 2013 Ga. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-state-gactapp-2013.