Caldwell v. State , 213 Ga. App. 531 ( 1994 )

213 Ga. App. 531 (1994) 445 S.E.2d 560

CALDWELL
v.
THE STATE.

A94A0781.

Court of Appeals of Georgia.

Decided June 10, 1994.

J. D. Rasnick, Richard L. Montgomery, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Daniel A. Hiatt, Assistant District Attorneys, for appellee.

BEASLEY, Presiding Judge.

Caldwell pled guilty to an indictment for burglary which charged that he entered a school without authority and with the intent to commit a theft. OCGA § 16-7-1. His motion to withdraw the guilty plea was denied.

1. Caldwell asserts that his plea was not freely and voluntarily made because he received ineffective assistance of counsel. He also contends that the trial court failed to ascertain on the record whether a factual basis existed for the plea, in violation of USCR 33.9. We need not address the assertion of ineffective assistance of counsel.

The purpose of USCR 33.9 is to "ensure that the trial court is satisfied that a factual basis does exist for the plea." Evans v. State, 212 Ga. App. 805, 807 (443 SE2d 296) (1994). There is no indication anywhere in the record that the trial court was so satisfied at the time it accepted the plea. The transcript of the acceptance of the guilty plea does not indicate any inquiry into the factual basis, and the remainder of the record does not suggest any awareness of a factual basis. When the record fails to show that the court ascertained a factual basis, there is no affirmative showing in the record that the plea was knowingly and voluntarily entered. Id.

A defendant's challenge to the validity of his guilty plea imposes on the State the burden of establishing that the plea was knowingly and voluntarily made. Collum v. State, 211 Ga. App. 158, 159 (438 SE2d 401) (1993). Where "the record does not show that the trial court determined that a factual basis existed for the guilty plea . . . the State did not meet its burden of showing affirmatively by the record that appellant's guilty plea was knowingly and voluntarily entered. [Cit.]" Id. at 160. Consequently, as in Collum, the trial court should have granted appellant's motion to withdraw the guilty plea.

2. Caldwell's other enumerations of error are moot.

Judgment reversed. Johnson, J., concurs. Andrews, J., concurs in the judgment only.