In the Supreme Court of Georgia



                                                  Decided: November 24, 2014


                     S14A1155. LEJEUNE v. McLAUGHLIN.


       BLACKWELL, Justice.

       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,1 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 SCt 1463, 25 LE2d 747) (1970). See also Hicks v. State, 281


       1
        Lejeune timely filed an application for a certificate of probable cause to appeal from
the decision of the habeas court, see OCGA § 9-14-52, and we granted that application.
Ga. 836, 837 (642 SE2d 31) (2007). For a plea to be knowing and intelligent,

the accused must have “sufficient awareness of the relevant circumstances and

likely consequences” of 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 SCt 2041, 36 LE2d 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

forego them.” (Footnote omitted.)). See also Loyd v. State, 288 Ga. 481, 485 (2)

(b) (705 SE2d 616) (2011). As the United States Supreme Court explained in

Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 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.2

       2
        Lejeune never alleged that his plea was not a voluntary expression of his own choice,
that he did not understand the nature of the case against him, nor that he entered his plea
without understanding the other constitutional rights that he would have been afforded at

                                             2
      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,


trial. His habeas petition was based exclusively on the allegation that he never was
adequately advised of his privilege against self-incrimination.

                                         3
Lejeune contends that a number of these earlier events on which the habeas

court relied do not actually support its finding, and we agree.

      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 SE2d 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 SE2d 359) (2012);

Adams v. State, 285 Ga. 744, 746 n.3 (1) (683 SE2d 586) (2009). But see Hawes

v. State, 281 Ga. 822, 825 (642 SE2d 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 SE2d 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

                                         4
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 because, during the time Steel represented

                                         5
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 added.) 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 SE2d 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

                                        6
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 SE 32) (1897), and criminal

judgments of conviction were no different. See Wells v. Pridgen, 154 Ga. 397,

399 (114 SE 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, 601 (134

SE2d 600) (1964); Stanforth v. Balkcom, 217 Ga. 816, 816 (125 SE2d 505)

(1962); Solesbee v. Balkcom, 207 Ga. 352, 353 (1) (61 SE2d 471) (1950);

                                         7
Wilcoxon v. Aldredge, 193 Ga. 661, 668 (19 SE2d 499) (1942). And this Court

historically treated the presumption as especially warranted when the judgment

of conviction was based upon a plea of guilty. See, e.g., Sharpe v. Smith, 225

Ga. 52, 54 (6) (165 SE2d 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 SE2d 833) (1966) (“There

is a presumption in favor of the validity of sentences and this is especially true

where, as here, they are based on pleas of guilty.” (Citations omitted.)).

Generally speaking, this Court has held to the presumption of regularity, and we

have continued in most every context to put the burden upon the petitioner in

habeas to show the irregularity of his conviction. See, e.g., Humphrey v.

Walker, 294 Ga. 855, 859-860 (II) (A) (757 SE2d 68) (2014); St. Lawrence v.

Bartley, 269 Ga. 94, 97 (1) (495 SE2d 18) (1998); Turpin v. Todd, 268 Ga. 820,

828-830 (2) (b) (493 SE2d 900) (1997); Gaither v. Gibby, 267 Ga. 96, 97 (1)

(475 SE2d 603) (1996).

      But beginning with Purvis, we departed from the usual and settled rule in

habeas cases in which the petitioner claims that his plea was not voluntary,

                                        8
knowing, and intelligent because he entered it without an adequate

understanding of an essential constitutional protection, such as the privilege

against self-incrimination. Just a few years before Purvis, the United States

Supreme Court held in Boykin that the United States Constitution requires the

State to bear the burden of showing on direct review that a plea was voluntary,

knowing, and intelligent. See 395 U. S. at 242-244. In Purvis, we extended this

allocation of the burden to habeas cases. Relying exclusively on Boykin, we

held in Purvis that the United States Constitution forbids Georgia courts to

indulge the usual presumption of regularity in a habeas case in which the

petitioner contends that his plea was not voluntary, knowing, and intelligent:

      We are aware of cases in this state holding that 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 is
      upon the prisoner. However, this presumption can no longer be
      indulged with the advent of the Boykin case . . . .

227 Ga. at 767 (citations omitted). We failed in Purvis, however, to

acknowledge that Boykin was no habeas case — it was a direct appeal from a

judgment of conviction, see 395 U. S. at 240-241 — and the United States

Supreme Court said nothing in Boykin about the burden in habeas proceedings

or the presumption of regularity with respect to final judgments of conviction.

                                      9
Considering that failure, the soundness of our reasoning in Purvis always was

debatable. In the years after Purvis, although we adhered to its holding in a

handful of cases, we never elaborated on its reasoning, nor did we articulate any

alternative basis for its holding. Instead, in those few cases in which we

mentioned Purvis, we simply restated its holding without additional comment.

See, e.g., Knight v. Sikes, 269 Ga. 814, 816 (2) (504 SE2d 686) (1998); Bowers

v. Moore, 266 Ga. 893, 895 (1) (471 SE2d 869) (1996); Glover v. Jones, 245

Ga. 848, 849 (268 SE2d 156) (1980); Roberts v. Greenway, 233 Ga. 473, 475

(2) (211 SE2d 764) (1975).

      In the meantime, the United States Supreme Court decided Parke v. Raley,

506 U. S. 20 (113 SCt 517, 121 LE2d 391) (1992), making clear in its decision

that Boykin did not, in fact, abrogate the presumption of regularity that attaches

to final judgments, and nothing about Boykin requires that the State bear the

burden of proving the voluntariness of a plea in the context of a collateral attack

upon a final judgment:

      To import Boykin’s presumption of invalidity into this very
      different context [of a collateral attack on a conviction] would, in
      our view, improperly ignore another presumption deeply rooted in
      our jurisprudence: the “presumption of regularity” that attaches to


                                        10
       final judgments, even when the question is waiver of constitutional
       rights.

506 U. S. at 29 (II) (B) (citation omitted).3 After Parke, it was apparent that the

rule of Purvis and its progeny was based on a misunderstanding of federal

constitutional law. But when Parke was brought to our attention in Byrd v.

Shaffer, 271 Ga. 691 (523 SE2d 875) (1999), a majority of the Court decided

nevertheless to adhere to Purvis and its progeny. The majority did so, however,

without any meaningful explanation of its decision. The majority instead just

stated summarily that the respondent bears the burden in habeas of proving that

a plea was voluntary, knowing, and intelligent, citing authority derived from


       3
           To be sure, Parke involved a recidivist sentencing proceeding in which an earlier
judgment of conviction fell under collateral attack, and Parke does not directly address the
burden of proof with respect to the voluntariness of a plea in habeas. But like the collateral
attack in Parke, a proceeding in habeas corpus “is a collateral attack that is separate and
distinct from direct review, and occurs only after a prisoner has failed to obtain relief by
direct appeal. It is not an extension of direct appeal: Habeas corpus always has been a
collateral remedy, providing an avenue for upsetting judgments that have otherwise become
final. . . .” Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999) (citation omitted;
emphasis in original). More important, in speaking of the presumption of regularity in Parke,
the United States Supreme Court made clear that it was speaking of the same presumption
long recognized in habeas proceedings: “Although we are perhaps most familiar with this
principle in habeas corpus actions, it has long been applied equally to other forms of
collateral attack.” Parke, 506 U. S. at 29-30 (II) (B) (citations omitted; emphasis supplied).
A number of other courts have recognized that the holding of Parke extends to habeas
proceedings. See, e.g., Skaftouros v. United States, 667 F3d 144, 158 (B) (1) (2d Cir. 2011);
Little v. Crawford, 449 F3d 1075, 1080 (III) (A) (9th Cir. 2006); United States v. Custis, 988
F2d 1355, 1363 (III) (4th Cir. 1993).

                                             11
Purvis,4 and without any citation to Parke.5 See Byrd, 271 Ga. at 692-693 (2).

Justices Carley and Hines dissented, relying on Parke, and arguing that “the

petitioner in a habeas corpus proceeding bears the burden of overcoming the

presumption of the validity of the conviction and sentence entered on his guilty

plea.” Id. at 696 (Carley, J., dissenting) (citations omitted). Since Byrd, we have

reaffirmed in a number of cases that the respondent has the burden in habeas to

prove that a plea was voluntary, knowing, and intelligent, but we never have

articulated any basis for that rule other than our original reasoning in Purvis.

See, e.g., Tyner v. State, 289 Ga. 592, 593 (2) (714 SE2d 577) (2011); Wilson

v. Kemp, 288 Ga. 779, 779 (727 SE2d 90) (2011); Sentinel Offender Svcs. v.

Harrelson, 286 Ga. 665, 666 (1) (690 SE2d 831) (2010); Sanders v. Holder, 285

Ga. 760, 761 (684 SE2d 239) (2009); Bullard v. Thomas, 285 Ga. 545, 545 (1)

(678 SE2d 897) (2009); State v. Hemdani, 282 Ga. 511, 511 & n. 1 (651 SE2d

734) (2007); Arnold v. Howerton, 282 Ga. 66, 66 (646 SE2d 75) (2007); Hawes


       4
         The Byrd majority cited Bowers, 266 Ga. at 895 (1). Like Byrd, Bowers summarily
stated that the burden is on the State to show that a plea is voluntary, and Bowers cited only
Roberts, 233 Ga. at 475 (2), for that proposition. Roberts relied on Purvis.
       5
         Justice Hunstein concurred, acknowledging that no constitutional law required the
State to bear the burden in habeas, but accepting that allocation of the burden as reflecting
“the better policy position.” Byrd, 271 Ga. at 693.

                                             12
v. State, 281 Ga. 822, 822-823 (642 SE2d 92) (2007); Beckworth v. State, 281

Ga. 41, 42 (635 SE2d 769) (2006); Green v. State, 279 Ga. 687, 688 (620 SE2d

788) (2005); Baisden v. State, 279 Ga. 702, 702 (620 SE2d 369) (2005); State

v. Futch, 279 Ga. 300, 300 (1) (612 SE2d 796) (2005); Foskey v. Battle, 277 Ga.

480, 482 (1) (591 SE2d 802) (2004); Britt v. Smith, 274 Ga. 611, 616-617 (1)

(556 SE2d 435) (2001); Wetherington v. Carlisle, 273 Ga. 854, 855 (547 SE2d

559) (2001).

       As we noted earlier, that reasoning is quite clearly erroneous. Throughout

our history, Georgia law has presumed the regularity of final judgments of

conviction, even when those judgments were challenged by way of a petition for

a writ of habeas corpus. In Purvis, we departed from the presumption of

regularity, but only because we concluded from Boykin that the United States

Constitution required such a departure.6 Parke made clear that we had misread

Boykin, and the United States Constitution does not, in fact, abrogate the

presumption of regularity. As a rule of federal constitutional law, the rule of




       6
         To the extent that the dissent points to the Georgia Constitution, neither Purvis nor
any of its progeny suggests that the Purvis rule is one of state constitutional law.

                                             13
Purvis and its progeny is simply wrong, and the dissent does not even attempt

to argue otherwise.

      Instead, our dissenting colleagues would adhere to Purvis and its progeny

as a matter of stare decisis. But even the venerable doctrine of stare decisis does

not permit us to persist in an error of federal constitutional law. See Oregon v.

Hass, 420 U. S. 714, 719 (II) (95 SCt 1215, 43 LE2d 570) (1975) (on questions

of federal constitutional law, state courts must adhere to the decisions of the

United States Supreme Court). And in any event, “stare decisis is not an

inexorable command.” State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757)

(2010) (citation and punctuation omitted). “When we consider whether an

earlier decision ought to be reexamined, we consider a number of factors,

including the age of the precedent, the reliance interests involved, the

workability of the prior decision, and most importantly, the soundness of its

reasoning.” Smith v. State, 295 Ga. 120, 122 (757 SE2d 865) (2014) (citation

and punctuation omitted). We also consider the ease with which the People and

their elected representatives might overrule our precedents, if they think them

incorrect. See Georgia Dept. of Nat. Resources v. Center for a Sustainable

Coast, 294 Ga. 593, 601 (2) (755 SE2d 184) (2014) (“The doctrine of stare

                                        14
decisis is always important, but it is less compelling when, as in this case, the

issue is the meaning of a constitutional provision. That is because it is much

harder for the democratic process to correct or alter our interpretation of the

Constitution than our interpretation of a statute or regulation.” (Citation

omitted.)).

      A consideration of the factors that inform the application of stare decisis

leads to the conclusion that Purvis and its progeny ought to be overruled. First,

because those precedents are based on a misunderstanding of federal

constitutional law, their error is not capable of correction by the People of this

State. Second, the reasoning of those precedents is quite obviously unsound, as

shown by Parke. Third, when the courts speak of reliance interests in the context

of stare decisis, they refer to contract interests, property rights, and other

substantive rights. Jackson, 287 Ga. at 658 (5). See also State v. Hudson, 293

Ga. 656, 661 (748 SE2d 910) (2013). The rule of Purvis and its progeny

implicates no such substantive rights. Fourth, the usual rule in habeas cases —

that the petitioner bears the burden of proof — is more workable than the rule

of Purvis and its progeny, inasmuch as, “in establishing a Boykin violation[,] the

[petitioner] is the one best situated to know whether his or her rights were

                                       15
infringed in the earlier proceedings.” Nash v. State, 271 Ga. 281, 285 (519 SE2d

893) (1999) (citation and punctuation omitted). The only factor that points

toward continuing adherence to Purvis and its progeny is the age of Purvis. But

without more, that we have been wrong for many years and in many cases is no

reason to persist in the error. See, e.g., Center for a Sustainable Coast, 294 Ga.

at 601 (2) (overruling precedent that was “less than 20 years old,” and citing

cases in which the Court overruled precedents that were 29 and 90 years old);

Hudson, 293 Ga. at 656-657 (unanimous decision overruling 38 year old

precedent to account for more recent developments in federal constitutional

law). We now overrule Purvis and its progeny.7

       3. “We recognize that, given the clear, though incorrect, mandate of our

overruled case law, [Lejeune] may be caught somewhat by surprise with this



       7
         The dissent suggests that our overruling of Purvis and its progeny is some sort of
novel departure from the usual rule of stare decisis. But this Court — unanimously, in most
cases — has not hesitated to overrule longstanding precedents when it has become apparent
that they are out of step with recent developments in federal constitutional law, even when
our precedents were not themselves, strictly speaking, precedents of federal constitutional
law, and instead were only influenced by our understanding of federal constitutional law.
See, e.g., Hudson, 293 Ga. at 656-657; Sosniak v. State, 292 Ga. 35, 37-40 (2) (734 SE2d
362) (2012). The rule of Purvis and its progeny was not just influenced by our
(mis)understanding of federal constitutional law; that rule is a rule of federal constitutional
law, having been adopted only because we thought that Boykin required it.

                                             16
opinion.” Sosniak v. State, 292 Ga. 35, 40 (3) (734 SE2d 362) (2012). In the

proceedings below, Lejeune and the habeas court both proceeded from the

premise that the Warden had the burden of proof. That premise was wrong, and

it is Lejeune who has the burden of proving that his plea was not voluntary,

knowing, and intelligent. To afford Lejeune a fair opportunity to carry that

burden, and to permit the habeas court in the first instance to consider the

evidence with a proper understanding of the burden (and without the findings

we have held to be clearly erroneous in Division 1), we vacate the decision of

the habeas court, and we remand for a new evidentiary hearing consistent with

this opinion.8


       8
         We express no opinion about the nature or quality of the evidence required to carry
the burden, and in particular, the extent to which a plea transcript alone, extrinsic evidence,
or some combination of the two may be sufficient. See Parke, 506 U. S. at 30 (suggesting that
extant transcript that is “suspiciously silent on the question [of] whether the defendant
waived constitutional rights” might be enough to overcome the presumption of regularity and
make out a case that the plea was not voluntary, knowing, and intelligent). We also need not
determine at this point whether we should reconsider our recent precedents holding that the
failure to advise a pleading defendant of one of the “three Boykin rights” can never be
deemed harmless error, precedents which appear inconsistent with an earlier decision of this
Court, see Goodman v. Davis, 249 Ga. 11, 13-14 (1) (287 SE2d 26) (1982), and which also
have been subject to some criticism more recently. See Tyner, 289 Ga. at 595-596 (4)
(opinion of Nahmias, J.); Wilson, 288 Ga. at 781-782 (Carley, P.J., dissenting). To reach and
decide the merits in this case, the dissent would sweep away Goodman as an “anomaly,”
without any discussion of the soundness of its reasoning (including its conformity to the
decisions of the United States Supreme Court) or the other factors that inform the application
of stare decisis as they relate to Goodman, a precedent that has been on the books for nearly

                                             17
       Judgment vacated and case remanded with direction. All the Justices

concur, except Hines, P. J., Benham and Hunstein, JJ., who dissent.




as long as Purvis. The inconsistency of our more recent cases with Goodman will have to be
resolved some day, and perhaps in this case, but that is better done on a record following a
hearing at which everyone understood the proper allocation of the burden. We remand for
development of such a record, and we decline at this point to further address the apparent
inconsistency between Goodman and the other cases on which the dissent relies.

                                            18
                  S14A1155. LEJEUNE v. McLAUGHLIN.


      HINES, Presiding Justice, dissenting.

      I respectfully dissent because the opinion of the majority upturns well-

established and well-founded Georgia precedent, and, under the facts of this

case, will result in a legal distinction without an effective difference.

      Lejeune was indicted for two counts of malice murder, felony murder,

aggravated assault, concealing the death of another, and possession of a firearm

during the commission of a crime, and the State sought the death penalty.

Lejeune’s first trial ended in a mistrial, and it was in the midst of his second trial

that Lejeune entered his negotiated plea of guilty to one count of malice murder

and was sentenced to life without the possibility of parole. Brian Steel and

August Siemon represented Lejeune at both trials, with Steel acting as lead

counsel. However, Steel withdrew from the case prior to Lejeune entering his

guilty plea, and Siemon alone represented Lejeune at the plea hearing. Lejeune

filed the present habeas corpus petition, alleging that his guilty plea was not

entered into voluntarily and intelligently because the trial court failed to advise

him of all of the constitutional rights he would be waiving by entering the plea.
Following a hearing on the petition, the habeas court rejected Lejeune’s

challenge to the plea and denied the requested relief. This Court granted

Lejeune’s application for a certificate of probable cause to appeal the denial of

his petition for a writ of habeas corpus expressly to determine whether the

habeas court properly concluded that Lejeune’s plea was knowingly and

voluntarily entered. And, that is what this Court should do.

       When a criminal defendant challenges the constitutionality of his guilty

plea, it is the State’s burden to show that the plea was informed and voluntary,

including that the defendant made an articulated waiver of the three

constitutional rights set forth in Boykin v. Alabama, 395 U.S. 238 (89 SCt 1709,

23 LE2d 274) (1969), which are the right to trial by jury, the privilege against

self-incrimination, and the right to confront one's accusers. Lewis v. State, 293

Ga. 544, 545 (748 SE2d 414) (2013).1 For more than 40 years this Court has

       1
         The State’s burden can be met by showing on the record that the defendant was aware
of his rights and that he waived those rights, or by using extrinsic evidence that shows
affirmatively that the defendant entered the guilty plea knowingly and voluntarily. Bazemore
v. State, 273 Ga. 160, 161 (1) (535 SE2d 760) (2000). If the State does not make this
showing, the defendant’s guilty plea will be deemed invalid. Id. It should be noted that more
than 30 years ago, Goodman v. Davis, 249 Ga. 11 (287 SE2d 26) (1982), issued from this
Court. In that case, following pleas of guilty to burglary and aggravated assault on a peace
officer, the defendant filed a petition for habeas corpus challenging the validity of his pleas
on the bases that at the time he tendered his pleas, the plea court failed to advise him of his
right against self-incrimination, and therefore, his pleas were not voluntarily entered. He

                                              2
firmly held that this is so specifically in the context of a habeas corpus

proceeding. Indeed, in 1971, in Purvis v. Connell, 227 Ga. 764 (182 SE2d 892)

(1971), this Court acknowledged the general burden of the petitioner in a habeas

proceeding, but made the deliberate decision to have the State, in a Boykin

challenge, bear the responsibility of showing voluntariness of the plea not only

on direct appeal but also in habeas cases. Purvis v. Connell, at 767. As

acknowledged by the majority, since Purvis, this Court has issued a legion of



maintained that under Boykin the plea court's failure to determine, on the record, whether he
knowingly waived his right against self-incrimination prior to accepting his guilty pleas
required reversal and invalidation of the pleas. This Court stated that it did “not read Boykin
as requiring the invalidation of a voluntarily made guilty plea where the record clearly
reflects that the accused fully understands the nature of the charges against him and the
consequences of entering a guilty plea, but the court fails to specifically advise him that he
has a right to remain silent prior to accepting the guilty plea.” Id. at 13. (Emphasis supplied.)
 The Court went on to state that it construed Boykin as requiring that there be a sufficient
record of the plea proceeding to determine whether the defendant had freely and voluntarily
entered the plea, and understood the nature of the charges against him and the consequences
of his plea; that Goodman did not allege that he was in any way prejudiced by the failure of
the plea court to advise him of his right to remain silent; and that any error in failing to advise
Goodman of his right against self-incrimination was, under the facts of the case, harmless.
Id. at 14. The Court concluded that the record showed that Goodman’s pleas were voluntarily
entered, and “decline[d] to adopt a rule which would demand that failure to advise an
accused of his right against self-incrimination invalidates a guilty plea in a case where the
record reflects that the central considerations of Boykin have otherwise been met.” Id. Since
Goodman, this Court has consistently viewed “advice and waiver of the ‘three Boykin rights’
as a strict constitutional requirement, with reversal the automatic consequence if any
deviation is found to have occurred.” Tyner v. State, 289 Ga. 592, 595 (4) (714 SE2d 577)
(2011). Thus, to the extent that Goodman is an anomaly, it should be disapproved.


                                                3
decisions adhering to the determination to have the Boykin burden remain the

State’s in a habeas proceeding. See, e.g., Tyner v. State, 289 Ga 592, 593 (2)

(714 SE2d 577) (2011); Wilson v. Kemp, 288 Ga. 779 (727 SE2d 90) (2011);

Sentinel Offender Services, LLC v. Harrelson, 286 Ga. 665, 666 (1) (690 SE2d

831) (2010); Sanders v. Holder, 285 Ga. 760, 761, (684 SE2d 239) (2009);

Bullard v. Thomas, 285 Ga. 545 (1) (678 SE2d 897) (2009); State v. Hemdani,

282 Ga. 511 (651 SE2d 734) (2007); Arnold v. Howerton, 282 Ga. 66, 67-68

(646 SE2d 75) (2007); Hawes v. State, 281 Ga. 822 (642 SE2d 92) (2007); State

v. Cooper, 281 Ga. 63, 64 (1) (636 SE2d 493) (2006); Beckworth v. State, 281

Ga. 41, 42 (635 SE2d 769) (2006); Green v. State, 279 Ga. 687 (620 SE2d 788)

(2005); Baisden v. State, 279 Ga. 702 (620 SE2d 369) (2005); State v. Futch,

279 Ga. 300, 301 (1) (612 SE2d 796) (2005); Foskey v. Battle, 277 Ga. 480, 482

(591 SE2d 802) (2004); Britt v. Smith, 274 Ga. 611, 612 (556 SE2d 435) (2001);

Bazemore v. State, 273 Ga. 160, 161 (1) (535 SE2d 760) (2000); Byrd v. Shaffer,

271 Ga. 691, 692 (2) (523 SE2d 875) (1999); Knight v. Sikes, 269 Ga. 814 (504

SE2d 686) (1998); Glover v. Jones, 245 Ga. 848 (268 SE2d 156) (1980); Mason

v. Banks, 242 Ga. 292 (248 SE2d 664) (1978); Andrews v. State, 237 Ga. 66 (1)

(226 SE2d 597) (1976).

                                       4
       This Court’s position was not diminished by the Supreme Court’s 1992

decision in Parke v. Raley, 506 U.S. 20 (113 SCt 517, 121 LE2d 391) (1992),

which dealt with a collateral attack in a recidivist proceeding. In fact, post

Parke v. Raley, this Court in Byrd v. Shaffer, supra., confirmed its intent to

require the State to show the voluntariness of a plea in habeas cases.2 Indeed,

the argument for shifting the evidentiary burden was made and soundly

rejected. Id. at 693 (2). And, while 15 years ago I joined then Justice Carley’s

dissent in Byrd v. Shaffer, I recognize that imposing opposite burdens in a




       2
          The majority opinion concludes that Purvis and its progeny incorrectly apply federal
constitutional law, and criticizes this dissent as not attempting to argue otherwise. But, the
linchpin of the majority’s conclusion that this Court has for decades misapplied federal
constitutional law is its unbounded reading of Parke v. Raley as a mandate to burden shift
when a Boykin challenge is made in a habeas proceeding. Moreover, the majority’s criticism
fails to take into account any impact of the constitutional law of this State. A state high court
certainly has the right to interpret its State Constitution to grant individuals more rights than
those provided by the Federal Constitution. Powell v. State, 270 Ga. 327, 331 (n. 3) (510
SE2d 18) (1998). As noted earlier, Boykin identifies three federal constitutional rights that
are waived when a plea of guilty is entered in a state criminal trial, i.e., the privilege against
self-incrimination, the right to trial by jury, and the right to confront one’s accusers. The
Constitution of the State of Georgia also guarantees those three rights. See Ga. Const. of
1983, Art. I, Sec. 1, Par. XVI (privilege against self-incrimination); Art. I, Sec. 1, Par. XI
(right to trial by jury); Art. I, Sec. 1, Par. XIV (right to confront adverse witnesses). Indeed,
this Court has held that the Georgia Constitution affords broader protection than the federal
constitution in regard to the privilege against self-incrimination. Green v. State, 260 Ga. 625,
627 ( 398 SE2d 360) (1990). The protections guaranteed to the citizens of Georgia provide
further support for maintaining that the State bear the responsibility for showing the
voluntariness of a plea in habeas cases.

                                                5
Boykin challenge on direct appeal and on habeas may be problematic as a matter

of policy and practice.

      As noted by Justice Hunstein in her concurrence in Byrd v. Shaffer, a

habeas corpus proceeding filed by a defendant who pled guilty to the challenged

conviction may be different from the situation of a recidivist defendant, in that

a habeas petitioner challenging the voluntariness of a guilty plea can raise the

issue only if it has not been procedurally defaulted; when a timely direct appeal

was not brought from a conviction on a guilty plea, habeas corpus is the only

remedy for a criminal defendant who subsequently asserts that his plea was not

knowingly and voluntarily entered based on a matter which requires

examination of evidence outside the record. Byrd v. Shaffer at 694. In such a

situation, the habeas petitioner essentially is in the same position as a defendant

who has directly appealed his guilty plea. Id. at 695.

      Equally problematic is the majority’s abandonment of precedent in this

case as it is in flagrant disregard of the important principle of stare decisis and

promotes a practice of singular case rule. This Court, and in fact the author of

the majority, most recently affirmed the great significance of stare decisis in our

system of justice:

                                         6
      As a general rule, American courts adhere to the principle of stare
      decisis, which directs the courts to stand by their prior decisions.
      We have noted that [t]he application of the doctrine of stare decisis
      is essential to the performance of a well-ordered system of
      jurisprudence. As the United States Supreme Court has explained,
      [v]ery weighty considerations underlie the principle that courts
      should not lightly overrule past decisions. Among these are the
      desirability that the law furnish a clear guide for the conduct of
      individuals, to enable them to plan their affairs with assurance
      against untoward surprise; the importance of furthering fair and
      expeditious adjudication by eliminating the need to relitigate every
      relevant proposition in every case; and the necessity of maintaining
      public faith in the judiciary as a source of impersonal and reasoned
      judgments.


Smith v. State, 295 Ga. 120, 121-122 (757 SE2d 865) (2014) (Blackwell, J.)

Certainly, there may be compelling reasons to reexamine an earlier decision. Id.

at 122. But, there is no such urgent need in this case; our original interpretation

of the mandate of Boykin is nearly half a century old, and the fifteen-year-old

controlling precedent confirming that decision has been imminently workable,

and takes into account the important policy considerations outlined above. Smith

v. State, at 121-122. It also is an acknowledgment of the gravity of a Boykin

challenge, for advice and waiver of the three Boykin rights is a strict

constitutional requirement. Tyner v. State, supra at 595 (4).



                                         7
       Even if we were to overrule our long standing precedent in this regard,

and shift the burden to the petitioner this is not the appropriate vehicle in which

to do so, and remand the case for yet another hearing, in that the undisputed

record shows a Boykin violation. Regardless of who technically had the burden,

there was an extensive hearing below, and neither the record of the plea

proceeding nor the offered extrinsic evidence permits the legal conclusion that

Lejeune was advised of the right against self-incrimination.

       As the habeas court expressly concluded, the transcript of the guilty plea

hearing clearly reflects that the plea court informed Lejeune of his rights to trial

by jury and to confront witnesses against him, and that Lejeune waived these

rights. But, the record also plainly reveals that while the plea court did inform

Lejeune that he would be giving up the right to testify during a jury trial, it did

not tell him that he would be forfeiting the privilege not to incriminate himself

upon entering a guilty plea.3 Merely informing a defendant of his Sixth


       3
        The plea judge testified by deposition in the habeas corpus proceeding that she was
not aware of any conversations during which Lejeune would have been advised of the rights
he was waiving by entering the guilty plea; that if a plea was entered in the midst of a trial,
the typical practice was to have any conversations prior to entry of the plea outside the
judge’s presence and to then “go on the record” for entry of the plea; and that the judge
would not participate in pre-trial negotiations or discussions, and would not have off-the-
record conversations about “who gets told what” during the course of the plea.

                                              8
Amendment right to testify at trial if the defendant so wishes is insufficient to

alert a defendant of his Fifth Amendment right not to incriminate himself.

Hawes v. State, 281 Ga. 822, 825 (642 SE2d 92) (2007). Nevertheless, the

habeas court concluded that after consideration of the guilty plea hearing

transcript along with the record, it was “convince[d]” that Lejeune was informed

that he was waiving his right not to incriminate himself, was aware of his right

against self-incrimination, and knowingly waived that right by entering the

guilty plea. In addition, the habeas court concluded that by making the strategic

decision to testify during his first trial in 2005, Lejeune understood that he could

choose not to testify, and therefore, remain silent at trial. Relying on Parke v.

Raley,4for the proposition that a defendant’s prior experience with the criminal

justice system is relevant to the question of whether the defendant knowingly

waived constitutional rights, the habeas court held that the record and Lejeune’s

experience throughout the criminal case sufficiently demonstrated that he was



       4
        In so doing, the habeas court acknowledged that this Court has rejected the
proposition that the State may demonstrate the voluntariness of a plea by showing that the
defendant had prior experience in the criminal justice system. See State v. Futch, supra at
301 (2); Foskey v. Battle, supra at 482 (1); Bazemore v. State, supra at 162 (1).



                                            9
aware of the rights he was waiving by entering the guilty plea, and therefore, his

guilty plea was knowingly, intelligently, and voluntarily entered.

       The habeas court’s conclusions were premised upon express findings,

which included in relevant part: prior to Lejeune’s initial jury trial and at three

separate hearings pursuant to the Unified Appeal Procedure at which Lejeune

was present, his counsel informed the trial court that Lejeune would exercise his

rights under the Fifth Amendment and remain silent; in preparation for the first

trial, Lejeune was informed that it was his choice whether to testify; in

preparation for the second trial, counsel again discussed with Lejeune whether

he would choose to testify and in that exchange “did discuss what we would call

Boykin . . . rights with [Lejeune]”; prior to the guilty plea, attorney Siemon

advised Lejeune that he would be waiving certain rights by entering the guilty

plea; Siemon discussed with Lejeune what would happen when they went before

the judge . . . that [Lejeune] would be asked certain questions; Siemon would

“say something about . . . that by entering a guilty plea that would end the trial

and there are certain rights associated with the trial that he would waive,

although [Siemon] wouldn’t necessarily enumerate the rights without a written

plea form”; after having done hundreds of pleas, Siemon did not have a clear

                                        10
recollection of what he advised [Lejeune]; Siemon “agree[d]” that by entering

a guilty plea constitutional rights are waived; Siemon would have advised

Lejeune “generally that was the case,” advised him “of what he was pleading

guilty to,” and would talk about the sentence, Siemon stating “I know we did in

this case . . . and I think I did all of that.” 5

       This Court reviews a habeas court’s findings of fact for clear error, and as

the majority concedes, certain pivotal findings of fact by the habeas court in this

case do not survive such a standard of review. See Denson v. Frazier, 284 Ga.

858, 860 (672 SE2d 625) (2009). Furthermore, the habeas court’s legal analysis

is flawed.

       First, as stated in the majority, the habeas court’s findings regarding

Lejeune’s exercise of his Fifth Amendment right to remain silent at hearings


       5
         At the habeas hearing, Siemon testified that other than possible sentences, he was
“not sure” of what else he advised Lejeune regarding entry of the guilty plea; that he
“essentially” told Lejeune that he would be waiving certain rights by entering the plea but
did not “recall specifically” what he advised Lejeune “in terms of any rights that he would
have been waiving”; and that as a general practice, he relied on plea forms to advise clients
of the specific rights they were about to waive upon entering a guilty plea. In this case, there
is no plea form in the record before the habeas court. When asked what he would do without
a plea form, Siemon said “I can’t, I don’t think there’s – I don’t think I have a usual practice
for when there’s no plea form because it’s so rare not to have a plea form. I think if I had a
case where there was no plea form, I would figure that the judge was going to read all of
those rights in the record, on the record, and that’s why there was no plea form.”

                                              11
prior to his first trial do not support the habeas court’s conclusions as a matter

of law. The phrases “right to remain silent” and “right against

self-incrimination” can be synonymous for the purpose of satisfying Boykin if

it is evident that the reference is to the right to remain silent at trial. Campos v.

State, 292 Ga. 83, 85 (734 SE2d 359) (2012). That is plainly not the situation

here. The cited invocations were before Lejeune’s first trial, the most recent

made nearly two and a half years prior to the entry of his plea. More

significantly, they were made by Lejeune’s attorney in direct response to the

trial court’s inquiries as to whether Lejeune was satisfied with the services of his

counsel. As previously noted and acknowledged by the habeas court, mere

familiarity with the criminal justice system will not support the determination

that a plea was knowing and voluntary. See footnote 4, supra.

      Second, the habeas court’s finding that Lejeune was informed about his

choice to testify prior to his first trial does not lend legal support for sustaining

the guilty plea. Again, for the purposes of Boykin, informing a defendant of his

Sixth Amendment right to testify at trial does not equate to knowledge by him

of his Fifth Amendment privilege against self-incrimination which is being

waived by the plea proceeding. Hawes v. State, supra at 825.

                                         12
      The cited statements about attorney Siemon’s conversations with Lejeune

are at best vague, general, and speculative, and therefore, do not serve as a legal

basis for upholding the plea under Boykin. See Lawrence v. State, 234 Ga. App.

603 (507 SE2d 490) (1998).

      Finally, as also conceded by the majority, the facially favorable finding

by the habeas court that in discussion with Lejeune in preparation for his second

trial, attorney Steel “did discuss what we would call Boykin . . . rights with

[Lejeune]” does not withstand scrutiny either.       The habeas court expressly

noted that the discussion was in the context of whether Lejeune would testify at

trial, which might well be insufficient to satisfy the requirements of Boykin with

respect to the right not to incriminate oneself. Hawes v. State, supra at 825.

Even more significantly, as highlighted by the majority, examination of this

fragment of a deposed statement by Steel in the context of the complete sentence

and of Steel’s entire deposition testimony makes plain that it was not intended

to be an affirmative statement, but quite the contrary, and that at no point did he

advise Lejeune that by entering a guilty plea he would waive certain rights. The

cross-examination of Steel left no doubt that Steel’s direct testimony was

negative on the question of whether he had advised Lejeune of the Boykin rights.

                                        13
Thus, the habeas court’s positive finding in regard to the statement is clearly

erroneous, and therefore, not valid factual support for the plea.

       In a guilty plea proceeding, there must be affirmative evidence that a

defendant’s rights were conveyed to him, including that the right against

compulsory self-incrimination would be waived by pleading guilty. State v.

Hemdani, supra at 512. This is warranted because,

      [t]he waiver of constitutional rights that occurs when a plea of
      guilty is entered is so great that it demands that utmost solicitude of
      which courts are capable in canvassing the matter with the accused
      to make sure he has a full understanding of what the plea connotates
      and of its consequences.


Bowers v. Moore, 266 Ga. 893, 894 (1) (471 SE2d 869) (1996) (internal

citations and quotation marks omitted).      In this case, there was no affirmative

evidence that either the plea court or trial counsel entered into a colloquy with

Lejeune and explained, even in essence, his right against self-incrimination.

     Thus, even if the evidentiary burden was Lejeune’s, he has carried it, and

the judgment of the habeas court should not stand for that reason. The majority

seeks to justify remand, in part, to “afford Lejeune a fair opportunity” to once

again “carry that burden.” This is disingenuous at best. And, it is difficult to


                                        14
fathom the fairness, or indeed reasonableness, in requiring either the prisoner or

the State to again plow the same ground of a plea made nearly a decade ago, the

circumstances of which have not changed. Neither the case at bar nor the

judicial process is served by further hearing in this matter.

      I am authorized to state that Justice Benham and Justice Hunstein join in

this dissent.




                                       15
