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                                                                 November 16, 2016

In the Court of Appeals of Georgia
 A16A1362, A16A1363. RAHEEM v. THE STATE.

      BARNES, Presiding Judge.

      In these companion appeals, the trial court granted Haneef Abdul Raheem’s

motions for out-of-time appeals of his 1981 conviction for motor vehicle theft and his

1982 burglary conviction. Following our review and finding that the record does not

establish that he was fully advised of his rights under Boykin v. Alabama, 395 U. S.

238, 243-244 (89 SCt 1709, 23 LE2d 274) (1969), we reverse the convictions.

      In Raheem v. State, 333 Ga. App. 821 (777 SE2d 496) (2015) (Raheem I),

Raheem appealed from the trial court’s denial of his motion for out-of-time appeals

of his 1982 conviction for burglary, 1981 conviction for motor-vehicle theft, and

1985 conviction for armed robbery. The relevant facts as presented in Raheem I

establish that

      [i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run.
      The next year, he pleaded guilty to burglary, and in 1985, to armed
      robbery. Decades later, in 2013, Raheem filed a pro se motion for an
      out-of-time appeal from all of these convictions, arguing that his guilty
      pleas were involuntary because, in each plea proceeding, he was not
      advised of his right to a jury trial, his right to confront the witnesses
      against him, or his right against self-incrimination. Raheem further
      argued that the essential elements of each of his offenses were not
      explained to him prior to entering his guilty pleas. . . . Raheem
      contend[ed] that he is entitled to an out-of-time appeal from each
      conviction because his guilty pleas were not knowing and voluntary and
      neither the trial court nor his trial counsel advised him of his limited
      appellate rights. The State moved to dismiss Raheem’s motion, arguing
      that, as to at least two of his cases, the plea transcripts show that his
      guilty pleas were indeed freely and voluntarily entered. The trial court
      denied the State’s motion, noting that there were no transcripts of any
      of Raheem’s plea hearings. Raheem then amended his motion for an
      out-of-time appeal, reiterating the arguments he made in his original
      motion and asserting that his failure to file a timely appeal in each case
      was due to ineffective assistance of counsel, rather than any fault of his
      own. Thereafter, Raheem was appointed counsel to represent him at the
      hearing on his motion.


(Footnote omitted.) 333 Ga. App. at 822.

      Following a hearing on his motion for an out-of-time appeal, the trial court

found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for

appeal because there was no evidence that, during the plea proceedings, he was

informed of his right to confront his accusers or his right against compulsory

self-incrimination,” but found that the record demonstrated that the plea in the 1985


                                          2
case was knowing and voluntary. Raheem I, 333 Ga. App. at 822-823. The trial court

then “found that Raheem was not entitled to an out-of-time appeal from any of his

convictions because he had not shown that he was prejudiced. . . . [because] there was

no evidence that the result of the proceedings would have been different if Raheem

had taken his case to trial rather than pleading guilty.” Id. at 823.

      Raheem appealed the denial of his motion. In Raheem I, we affirmed the trial

court’s denial of Raheem’s motion for an out-of-time appeal of the 1985 armed-

robbery conviction. 336 Ga. App. at 827-828 (2). We further agreed with the trial

court that the record demonstrated that during Raheem’s 1981 and 1982 plea

proceedings, he was only advised of one of the three constitutional rights he was

waiving by pleading guilty pursuant to Boykin, namely, the right to a jury trial, but

not informed of his right against self-incrimination or the right to confront his

accusers. Raheem I, 333 Ga. App. at 824-825 (1). However, we reversed the trial

court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and

1982 convictions, upon finding that the trial court had denied the motion “without

resolving the determinative issue of whether the failure to pursue a timely direct




                                           3
appeal was attributable to trial counsel or to Raheem himself.”1 (Footnotes omitted.)

Id. at 826 (1). We “remand[ed] the case with direction that the court conduct the

requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding

who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.”

Id.

      Upon remand, and following a hearing, the trial court found that Raheem’s

failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his

attorney’s failure to advise him that he had the right to appeal and that he had a

legitimate issue for appeal, given that the record failed to establish that he was

informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s

motion for an out-of-time appeal of the two convictions.

      1. Although the State contends that the trial court erred in granting Raheem’s

motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an

out- of-time appeal are not before us. Tyner v. State, 289 Ga. 592, 594 (3) (714 SE2d


      1
         “An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State, 276
Ga. 525, 526 (579 SE2d 735) (2003). “The disposition of a motion for out-of- time
appeal hinges on a determination of who bore the ultimate responsibility for the
failure to file a timely appeal.”(Citations omitted.) Glass v. State, 248 Ga. App. 91,
92 (1) (545 SE2d 360) (2001).

                                           4
577) (2011), overruled in part on other grounds, Lejeune v. McLaughlin, 296 Ga. 291,

297 (2) (766 SE2d 803) ( 2014). There is “no basis for the State to appeal the order

granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in

this case] it did neither. See OCGA § 5-7-1 (limiting the matters the State may appeal

in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at

594 (3). 2

      2. Raheem raises identical arguments on appeal in cases A16A1362 and

A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were

not knowingly and voluntarily entered because he was not informed of the

constitutional rights required under Boykin before he entered his plea. Raheem asserts

that the State did not meet its burden of establishing by the record that he was advised

of the three Boykin rights he was waiving by pleading guilty.

             The entry of a guilty plea involves the waiver of three federal
      constitutional     rights:    the   privilege     against    compulsory
      self-incrimination, the right to trial by jury, and the right to confront
      one’s accusers. It is the duty of a trial court to establish that the


      2
        We disapprove of the following cases to the extent that they could be relied
upon to stand for the proposition that the State can timely appeal from an order
granting an out-of-time appeal: Fineza v. State, 255 Ga. App. 835 (567 SE2d 17)
(2002); Towns v. State, 228 Ga. App. 267 (491 SE2d 497) (1997).

                                           5
      defendant understands the constitutional rights being waived, and the
      record must reveal the defendant’s waiver of those constitutional rights..
      . . . [A]ny defendant who pleads guilty will be able to secure a reversal
      of his conviction if the record does not show that he was specifically
      advised of each of the three Boykin rights and he properly presents the
      issue to a reviewing court. Nevertheless, our Supreme Court has
      recognized that nothing in Boykin requires the State during a guilty plea
      proceeding to use any precisely-defined language or ‘magic words.


(Citations and punctuation omitted.) Childs v. State, 311 Ga. App. 891, 891-892 (1)

(717 SE2d 509) (2011). The State bears the burden on direct review to establish that

the plea was knowingly and voluntarily entered. King v. State, 270 Ga. 367, 369 (509

SE2d 32) (1998).

      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 his right to trial by jury, his privilege against
      self incrimination, and his right to confront his 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 Boykin rights.




                                          6
(Citation and punctuation omitted.) Nash v. State, 271 Ga. 281, 285 (519 SE2d 893)

(1999).

      Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In

both cases, there is a pre-printed form included in the record labeled “Transcript.”

The only Boykin right acknowledged on the form is the right to a jury trial. Trial

counsel for the 1982 plea testified that “the Boykin rights weren’t specifically

considered at that time because the court system was unaware of it or didn’t use the

Boykin case in their plea process.” The State concedes that the record on its face does

not demonstrate that Raheem was advised of and waived all three Boykin rights, but

asserts that any such deficiency was harmless because Raheem never claimed that he

would have chosen to go to trial instead of taking a plea, had he be fully advised of

all of his Boykin rights.3

      Regardless of the practices in place at that time,

      [t]he requirement that a plea of guilty must be intelligent and voluntary
      to be valid has long been recognized. Rather, the procedural element
      added in Boykin was the requirement that the record must affirmatively


      3
        The State asserts this argument within the context of its claim that trial
counsel was not ineffective and thus that the motion for the out-of-time appeals
should not have been granted. As noted in Division 1, any challenge to that order is
not before us on review.

                                          7
      disclose that a defendant who pleaded guilty entered his plea
      understandingly and voluntarily. Thus, Boykin imposed a constitutional
      record-keeping requirement on the states if they hoped to insulate state
      guilty pleas from future attacks on federal constitutional grounds.


(Footnotes and punctuation omitted; emphasis supplied.) Wiley v. Miles, 282 Ga. 573,

575-576 (2) (652 SE2d 562) (2007) (establishing that Boykin applies to guilty pleas

entered after June 2, 1969).

      Our appellate courts have “interpreted this 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, 289 Ga. at 595 (4).4

Here it is undisputed that the record does not disclose that Raheem was advised of his

right against self-incrimination or the right to confront witnesses.

                   Accordingly, because Raheem was not a fully advised of the rights

he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not



      4
         Per the holding in Lejeune v. McLaughlin, 296 Ga. 291 (766 SE2d 803)
(2014), the burden now shifts in habeas corpus cases to the defendant to prove that
his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune
remotely suggesting that the State no longer has the burden of demonstrating, in the
context of a direct appeal from a judgment of conviction, that a defendant’s guilty
plea was voluntary, knowing, and intelligent.”Raheem I, 333 Ga. App. at 821 (1) n.
13.

                                          8
substantiate that his pleas were knowingly and voluntarily. Thus, his guilty pleas are

invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to

the trial court for further proceedings consistent with this decision. See Vera v. State,

329 Ga. App. 177 (764 SE2d 427) (2014).

      Judgments reversed. Doyle, C.J., Andrews, P.J., Miller, P.J., Ellington, P.J.,

and Phipps, PJ., Dillard, McFadden, Boggs, Ray, Branch, McMillian, and Peterson,

JJ concur. Rickman, and Mercier, JJ concur in judgment only.




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