In this habeas corpus case, Christopher D. Green, who is currently incarcerated in federal prison, challenges a guilty plea which he entered in 1992, and which is being used to enhance his federal sentence.1 Following a hearing, the habeas court rejected Green’s challenge. We granted Green’s application for a certificate of probable cause and posed this question: “Whether the habeas court erred in determining that petitioner knowingly and voluntarily entered a plea of guilty after waiving his constitutional rights.” We find that the habeas court did so err and, therefore, we reverse. 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, and the trial court has a duty to ensure that the defendant understands the constitutional rights being waived. The record must disclose the accused’s voluntary waiver of those constitutional rights since waiver will not be presumed from a silent record. In a habeas proceeding, the State has the burden of establishing the plea was knowingly, intelligently, and voluntarily entered, and may do so by showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or . . . filling a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. Citations and punctuation omitted. Foskey v. Battle , 277 Ga. 480, 481-482 591 SE2d 802 2004. The record is devoid of a guilty plea transcript so we have no way of knowing the extent of any colloquy between Green and the sentencing court. However, the record does contain a two-page form entitled “transcript of proceedings,” as well as the affidavit of the attorney who represented Green at the guilty plea hearing. Like the pre-printed form in Foskey , supra, the “transcript of proceedings” in this case notified Green only that he had the right to plead not guilty and to be tried by a jury. It did not advise Green of the privilege against self-incrimination or the right to confront his accusers. In his affidavit, Green’s attorney averred, in pertinent part: “In preparation for the eventual plea of guilty entered by Christopher D. Green, I know that I would have personally advised . . . Green that he had the right to a trial by jury, that he had the right not to testify against himself at . . . trial and that I, as his attorney, would have the right to confront the witnesses brought against him by the prosecution during the trial.”
The habeas court acknowledged that the ” ‘transcript of proceedings’, standing alone, did not satisfy the dictates of Boykin v. Alabama , 395 U. S. 238 89 SC 1709, 23 LE2d 274 1969,” which mandates that a defendant must be advised fully of his constitutional rights, including the right to trial by jury, the right to confront witnesses, and the right against self-incrimination. Nevertheless, the habeas court concluded that Green was advised of his constitutional rights and that he voluntarily, knowingly, and intelligently waived those rights. That conclusion was based on the affidavit of Green’s attorney, and the lack of any definitive assertion by Green that he was not informed of his constitutional rights.2
