                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 22, 2019




In the Court of Appeals of Georgia
 A19A1015. THE STATE v. ATHEY.

      COOMER, Judge.

      Sabrina Jeanette Athey was charged with one count of felony theft by

shoplifting. As elements of the felony shoplifting charge, the accusation listed five

prior offenses of theft by shoplifting. Athey challenged the State’s ability to use her

prior offenses, alleging that she had not been represented by counsel for the prior

convictions and she had not knowingly and intelligently waived her right to counsel.

After a hearing, the trial court ordered that the accusation be quashed. The State

appeals, contending that the trial court erred by failing to give proper consideration

to the presumption of regularity, by not following the correct case law, and by

allowing Athey’s testimony to outweigh the presumption of regularity. For the

reasons that follow, we affirm.
      On April 25, 2018, Athey was charged with one count of felony theft by

shoplifting (OCGA § 16-8-14). Specifically, the accusation stated that Athey “did

unlawfully take possession of a bracelet, merchandise being the property of Belk, a

store, with a value of less than $500, with the intent to appropriate said property to

her own use without paying said owner for said property; and said accused, prior to

committing the above-charged offense, had been convicted of” five prior offenses of

theft by shoplifting.

      Under OCGA § 16-8-14 (a) (1), a “person commits the offense of theft by

shoplifting when such person . . . with the intent of appropriating merchandise to his

or her own use without paying for the same . . . takes possession of the goods or

merchandise of any store[.] OCGA § 16-8-14 (b) (1) (C) provides as follows:

      Upon conviction of a fourth or subsequent offense for shoplifting, where
      the prior convictions are either felonies or misdemeanors, or any
      combination of felonies and misdemeanors, as defined by this Code
      section, the defendant commits a felony and shall be punished by
      imprisonment for not less than one nor more than ten years; and the first
      year of such sentence shall not be suspended, probated, deferred, or
      withheld.


      Athey challenged the accusation, contending that she had not been represented

by counsel in any of the shoplifting convictions relied upon for the felony shoplifting

                                          2
charge and that she did not knowingly and intelligently waive her right to counsel. At

a hearing, Athey testified that she had a ninth grade education; that in her prior

shoplifting convictions, she did not have an attorney representing her; and that she

was using drugs at the time of her prior shoplifting convictions. She further testified

that she did not remember being advised that her misdemeanor convictions could be

used in aggravation of any sentence she might receive and that no one advised her

that there is a mandatory minimum on shoplifting cases if she accumulated a certain

number of convictions. Athey acknowledged signing forms for each of the prior

convictions waiving her right to be represented by an attorney, and, for one of the

convictions, Athey testified that a judge advised her of her rights. However, she

testified that she did not read the waiver forms when she signed them, and that she

signed them “just to get it over with.” Athey further testified that she did not know

what she was doing when she signed the waiver forms. After hearing Athey’s

testimony and argument by both parties, the trial court ruled that Athey’s prior

shoplifting offenses could not be used to enhance the shoplifting charge to a felony.

      The State filed a motion for reconsideration asking the trial court to reconsider

its ruling on whether Athey’s prior shoplifting offenses could be used in aggravation.

With the motion for reconsideration, the State submitted copies of the four

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convictions at issue. Athey filed a response motion in opposition to the State’s motion

for reconsideration and the re-opening of evidence. After considering the parties’

supplemental material, the trial court found that Athey’s previous uncounseled

convictions could not be used to enhance the misdemeanor offense of shoplifting to

felony shoplifting and ordered that the accusation be quashed.

      The State contends that the trial court erred by failing to give proper

consideration to the presumption of regularity, by not following the correct case law,

and by giving too much weight to Athey’s testimony. We disagree.

      For a felony shoplifting offense,

      the State bears the burden of showing both the existence of the prior
      guilty pleas and that the defendant was represented by counsel when
      [she] entered the pleas. If the defendant was not represented by counsel,
      the State can meet its burden by showing that the defendant waived this
      right. 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. Once the State has shown that the
      defendant either was represented by counsel or waived the right to
      representation, a “presumption of regularity” attaches to the plea
      proceedings and the burden shifts to the defendant to show any alleged
      irregularities.




                                          4
Beck v. State, 283 Ga. 352, 353-354 (2) (658 SE2d 577) (2008) (citations omitted).

See also Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999); Simmons v. State,

278 Ga. App. 372, 375 (2) (d) (629 SE2d 86) (2006).

      Defendant can attempt to meet [her] burden of production with a
      transcript, with testimony regarding the taking of the plea, or with other
      affirmative evidence. A silent record or the mere naked assertion by an
      accused that [her] prior counseled plea was not made knowingly and
      intelligently is insufficient. If the defendant is able to present evidence
      that a constitutional infirmity exists, then the burden of proving the
      constitutionality of the plea shifts to the State.


Nash, 271 Ga. at 285 (citations and punctuation omitted).

      The State will meet its burden of proof if it introduces a “perfect”
      transcript of the taking of the guilty plea, one which reflects a colloquy
      between judge and defendant wherein the defendant was informed of
      and specifically waived [her] right to trial by jury, [her] privilege against
      self incrimination, and [her] right to confront [her] accusers. If the State
      introduces anything less than a “perfect” transcript, the judge then must
      weigh the evidence submitted by the defendant and by the State to
      determine whether the State has met its burden of proving that
      defendant’s prior guilty plea was informed and voluntary, and made with
      an articulated waiver of the three Boykin1 rights.


      1
       Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). “The
United States Supreme Court held in Boykin that several federal constitutional rights

                                           5
Id. (citation and punctuation omitted).

       Here, the State introduced evidence that Athey had signed waivers of her right

to counsel in each of the prior convictions. By doing so, the State met its burden of

showing that the right to counsel was waived. See Beck, 283 Ga. at 353-354 (2).2 The

presumption of regularity therefore attached, and the burden shifted to Athey to show

any alleged irregularities. See Nash, 271 Ga. at 285.

       At the hearing, Athey presented evidence that her prior guilty pleas had not

been entered into knowingly and voluntarily. She testified about her limited education

and her drug use, and that she did not read the forms for the prior convictions waiving

her right to be represented by an attorney or understand what they meant. Because

Athey presented evidence that her guilty pleas were not knowing and voluntary, the

burden of proving the constitutionality of the plea shifted to the State. See Nash, 271

Ga. at 285.


are involved in a waiver that takes place when a plea of guilty is entered in a state
criminal trial. These rights are the privilege against compulsory self-incrimination,
the right to trial by jury, and the right to confront one’s accusers.” Foster v. State, 319
Ga. App. 815, 816 (2) (738 SE2d 651) (2013) (citations and punctuation omitted).
       2
       The State appears to argue that the trial court did not properly consider Beck.
However, the State called the trial court’s attention to Beck both at the hearing on the
demurrer and in its brief in support of its motion for reconsideration, , and we have
no reason to conclude that the trial court did not properly consider Beck.

                                            6
      The State would have met its burden of proof if it had introduced a “perfect”

transcript of the taking of the guilty plea. See Nash, 271 Ga. at 285. The State did not

do so. Nor did the State present any other evidence. Consequently, the trial court had

the responsibility to weigh the evidence submitted by Athey and by the State to

determine whether the State met its burden of proving that Athey’s prior guilty pleas

were informed and voluntary, and made with an articulated waiver of the three Boykin

rights. Id. The State argues that Athey’s testimony was biased and vague and was

insufficient to overcome the presumption of regularity. However, this argument goes

to the credibility of the witness and the weight to be given to her testimony, which are

matters within the purview of the trial court. See Branch v. State, 182 Ga. App. 818,

819 (1) (357 SE2d 136) (1987) (where judge sits as trier of fact, “credibility and

weight, and the resolution of conflicts within the testimony of a witness, are matters

to be determined by the judge.” (citation omitted)). Thus, the trial court was

authorized find that Athey’s prior guilty pleas were not informed and voluntary.

Accordingly, the trial court did not err in finding that Athey’s previous uncounseled

convictions could not be used to enhance the misdemeanor offense of shoplifting to

that of felony shoplifting and quashing the accusation.

      Judgment affirmed. Doyle, P. J., and Markle, J., concur.

                                           7
