Acting pursuant to a plea bargain, Marion Cooper entered guilty pleas to two drug charges in 1992. After conducting a hearing, the trial court accepted the pleas and imposed the negotiated sentences. In 2005, Cooper petitioned for a writ of habeas corpus, alleging that the 1992 convictions were invalid and were being used to enhance his sentence for a federal offense. The habeas court granted Cooper’s petition, finding that he was not adequately advised of his constitutional rights when he entered his guilty pleas and that he did not thereby make a knowing, voluntary, and intelligent waiver of those rights, and that the trial court failed to establish on the record the factual basis for the pleas . . . . Pursuant to OCGA § 9-14-52 c, the State appeals from the habeas court’s order. 1. “A plea of guilty that is invalid under Boykin v. Alabama , 395 U. S. 238 89 SC 1709, 23 LE2d 274 1969 may not be used to enhance punishment in a subsequent trial. Cit.” Pope v. State , 256 Ga. 195, 209 17 345 SE2d 831 1986, overruled on other grounds, Nash v. State , 271 Ga. 281 519 SE2d 893 1999. Boykin establishes that 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 cit., and the trial court has a duty to ensure that the defendant understands the constitutional rights being waived. Cits. The record must disclose the accused’s voluntary waiver of those constitutional rights since waiver will not be presumed from a silent record. Cits. Foskey v. Battle , 277 Ga. 480, 481-482 1 591 SE2d 802 2004. Thus, the burden was on the State “to address Cooper’s challenge and show that the ‘”guilty pleas were informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Cit.’ Cit.” Emphasis in original. Britt v. Smith , 274 Ga. 611, 612 556 SE2d 435 2001.
Whether the trial court establishes on the record a factual basis for the guilty plea does not enter into the determination of the constitutional validity of the plea under Boykin . As the habeas court itself recognized, that requirement is only imposed on the trial court pursuant to Uniform Superior Court Rule USCR 33.9. See State v. Evans , 265 Ga. 332 454 SE2d 468 1995. Although USCR 33.9 “applies in a guilty plea hearing, this is a habeas corpus proceeding, and that Rule does not apply here because it is not of constitutional magnitude.” Britt v. Smith , supra at 615. “We cannot elevate the provisions of that Rule to the status of requirements of constitutional dimension, by ignoring the controlling principle that ‘habeas corpus is available to review constitutional deprivations only . . . .’ Cit.” Britt v. Smith , supra at 612. Therefore, the habeas court erred in predicating the grant of relief upon the trial court’s failure to establish on the record a factual basis for Cooper’s guilty pleas.
