ALLEN v. DAKER (And Vice Versa) ( 2021 )


Menu:
  • In the Supreme Court of Georgia
    Decided: May 17, 2021
    S21A0091. ALLEN, WARDEN v. DAKER.
    S21X0092. DAKER v. ALLEN, WARDEN.
    NAHMIAS, Presiding Justice.
    At a jury trial in 2012, Waseem Daker was found guilty of
    malice murder and other crimes. Daker had hired or was appointed
    four attorneys, all of whom were allowed to withdraw before or near
    the beginning of the trial; he ultimately elected to expressly waive
    his right to counsel so that he could represent himself (commonly
    referred to as proceeding “pro se”) during the trial. After Daker was
    convicted, however, he repeatedly asked for appellate counsel to be
    appointed to represent him, but those requests were denied, so he
    had to continue to represent himself. His pro se motion for new trial
    was denied, and his pro se direct appeal resulted in his convictions
    being affirmed.
    In 2017, Daker filed a petition for habeas corpus asserting 438
    grounds for relief, all of which the habeas court denied. In his
    subsequent application to this Court for a certificate of probable
    cause to appeal, Daker specifically claimed only that the trial court
    erroneously denied his constitutional right to appellate counsel and
    that his requests for a determination of his indigency status for
    purposes of having counsel appointed were improperly delegated to
    and erroneously denied by the circuit public defender’s office. In
    2019, this Court issued an order granting Daker’s application,
    vacating the habeas court’s order with regard to the two claims that
    Daker had raised in his application, and remanding the case with
    direction to the habeas court to identify which of his 438 grounds
    specifically implicate those claims, consider those grounds based on
    the evidence already presented, and then issue thorough findings of
    fact and conclusions of law as to those grounds.
    On April 29, 2020, the habeas court entered a new final order,
    in which it incorporated verbatim from its original order the findings
    of facts and conclusions of law on Daker’s 438 grounds, all of which
    2
    the court summarily concluded were “without merit.” After
    specifically analyzing the applicable law and the record with regard
    to the two claims that Daker had raised in his application, however,
    the habeas court concluded that “[t]he record does not show that
    [Daker] voluntarily waived the right to counsel on appeal as
    required” and that, in ruling that Daker was not indigent for
    purposes of his post-conviction proceedings, the trial court “relied on
    a previous determination of indigency from over a year earlier.”
    Despite these specific conclusions, the habeas court also said that it
    must remand the case to the trial court to determine if Daker was
    entitled to appellate counsel – and then the habeas court ended the
    order by saying that the entire habeas petition was denied.
    Warden Marty Allen appeals the habeas court’s order, arguing
    that the court erred in remanding the case to the trial court and that
    this Court should remand the case to the habeas court to determine
    if Daker was entitled to appellate counsel. In a cross-appeal, Daker
    argues that the habeas court erred by not granting him a new direct
    appeal based on the improper denial of his constitutional right to
    3
    appellate counsel; he asks this Court to decide that claim without a
    remand to the habeas court.
    As we explain below, regardless of whether Daker was indigent
    at the time of his motion for new trial proceeding and direct appeal,
    the habeas court specifically and correctly concluded based on the
    record that Daker did not validly waive his right to appellate
    counsel. Accordingly, we affirm the habeas court’s order to the
    extent that it is consistent with that conclusion, and we reverse the
    order to the extent that it summarily and inconsistently says that
    Daker’s right-to-counsel claim is meritless or needs to be remanded
    to the trial court and purports to deny the habeas petition as a
    whole. We remand the case to the habeas court with direction to
    grant relief to Daker in the form of a second, out-of-time direct
    appeal so that he may start the post-conviction process anew in the
    trial court, either with the assistance of counsel – appointed counsel
    if Daker has been determined by the circuit public defender’s office
    to be indigent at that time, or retained counsel if Daker has been
    determined not to be indigent – or pro se if the trial court first
    4
    determines that Daker has validly waived his right to appellate
    counsel.
    1. Background.
    The record shows the following. 1
    (a) The pretrial proceedings. On January 15, 2010, Daker was
    arrested on charges related to the murder of Karmen Smith in Cobb
    County in 1995. In a notice dated January 19, 2010, the Cobb County
    Circuit Defender’s Office (CDO) informed Daker that it had
    determined, after an interview of him and an investigation of the
    information recorded on his application for the appointment of an
    attorney, that he did not qualify for appointed counsel because his
    1 As the habeas court noted in its order, the record in this case is
    voluminous and complicated. The order describes the procedural history of the
    case to some extent, although that account includes a few inaccuracies and
    several immaterial date discrepancies, most of which appear to be due to the
    habeas court’s reference to the signing rather than the filing date for various
    trial court orders. At the hearing on the habeas petition, the criminal case
    record from the trial court and other documents were admitted into evidence,
    but only the prosecutor from Daker’s trial testified; the testimony included
    nothing relevant to the claims raised here beyond what is in the trial court
    record, and the habeas court made no specific reference to this testimony in its
    order. We provide a more detailed description of pertinent parts of the record
    as context for the discussion of the legal issues below.
    5
    “income exceed[ed] the guidelines for a court appointed attorney.”2
    On January 28, private attorney Brian Steel filed an appearance to
    represent Daker. On April 1, a Cobb County grand jury indicted
    Daker for malice murder, four counts of felony murder, two counts
    of burglary, false imprisonment, and aggravated assault related to
    Karmen Smith’s death, as well as aggravated battery of Nick Smith
    and attempted aggravated stalking of Loretta Spencer Blatz. On
    April 27, the trial court entered a consent order allowing Steel to
    withdraw due to a “disagreement [with Daker] on how to proceed on
    this case.”
    At a hearing on May 4, 2010, the trial court asked the CDO to
    appoint an attorney for Daker until he decided whether he wanted
    to hire new private counsel; Michael Syrop, a CDO public defender,
    2 OCGA § 17-12-2 (6) (C) defines “indigent person” in pertinent part as:
    A person charged with a felony who earns . . . less than 150 percent
    of the federal poverty guidelines unless there is evidence that the
    person has other resources that might reasonably be used to
    employ a lawyer without undue hardship on the person[ or] his or
    her dependents . . . . In no case shall a person whose maximum
    income level exceeds 150 percent of the federal poverty level . . . be
    an indigent person or indigent defendant.
    6
    then represented Daker at the hearing. On May 12, Syrop moved to
    withdraw at Daker’s request. On June 9, the CDO filed an “Affidavit
    of Indigency,” which said that “[u]pon consideration of the
    Application for Appointment of Counsel, [Daker] is found to be
    indigent” and that on May 28, Syrop had been appointed to
    represent Daker.
    On July 19, 2010, the trial court held a hearing on Syrop’s
    motion to withdraw, at which Daker asked to represent himself and
    requested additional time to prepare his argument for why he
    should be permitted to proceed without counsel. The court granted
    the continuance with the understanding that Syrop would assist
    Daker to prepare his argument. At a hearing on August 9, Syrop
    formally moved to allow Daker to represent himself. The court
    granted the motion after explaining to Daker in detail the
    consequences of his self-representation and finding that he was
    aware of his rights and the consequences of proceeding without an
    attorney at trial; the post-conviction process was not mentioned
    during the court’s colloquy with Daker. Daker then represented
    7
    himself for the remainder of the hearing. During the hearing, the
    court also informed Syrop that it intended to enter an order allowing
    him to withdraw as counsel and appointing him to serve as standby
    counsel; on August 17, the court filed that order.
    In a notice dated September 23, 2010, the CDO informed Daker
    that it had determined, after an interview of him and an
    investigation of the information recorded on his application for the
    appointment of an attorney, that he was ineligible for appointed
    counsel because his “income exceed[ed] the guidelines.” On
    November 15, Daker filed a motion for an interview with the Circuit
    Defender (along with a motion to proceed in forma pauperis and
    motion for replacement of standby counsel). Daker claimed that the
    CDO filed its September 23 notice declaring him not indigent – after
    previously filing the affidavit of indigency on his behalf on June 9 –
    because Daker and Syrop had requested funds from the CDO for
    certified copies of records, and that the determination was based on
    the outdated January 2010 interview following his arrest. In an
    order filed March 25, 2011, the trial court summarily denied all
    8
    three motions and released Syrop from the case. In the same order,
    however, the trial court directed the CDO to investigate Daker’s
    financial status again. On April 4, the CDO filed a notice saying
    that, after an interview of Daker and an investigation of the
    information recorded on his application for the appointment of an
    attorney, the CDO found him not indigent because he had “other
    financial resources available.”
    On December 5, 2011, however, the CDO filed an “Affidavit of
    Indigency,” which said that “[u]pon consideration of the Application
    for Appointment of Counsel, [Daker] is found to be indigent,” and
    that on November 28, 2011, Michael Treadaway had been appointed
    to represent him. On December 9, 2011, the trial court filed an order
    captioned “Redetermination of Indigency” and signed by both a
    judge (apparently not the judge who generally presided over Daker’s
    case) and a CDO representative, which said that Daker had
    previously been “determined to be indigent” on May 28, 2010 and
    that “[a] conflict has occurred and [Daker] will be appointed another
    circuit defender”; the order then said that “it is the finding of this
    9
    court that Michael Syrop be relieved of representation and Michael
    Treadaway . . . be appointed [as] counsel for [Daker].” On February
    2, 2012, Jason Treadaway (who is the son of Michael Treadaway)
    also entered an appearance as standby counsel for Daker.
    On February 14, 2012, however, the CDO filed a notarized
    statement signed by the Circuit Defender, which said the following:
    The defendant, WASEEM ANAS DAKER, was denied a
    court appointed attorney on or about March 16, 2011 after
    an investigation into his financial resources. At that time
    the investigation revealed that Mr. Daker would not
    qualify for court-appointed counsel. As a result of the
    seriousness of the charges against Mr. Daker, it was
    subsequently determined that Mr. Daker might need the
    assistance of stand-by counsel. On November 29, 2011,
    Michael Treadaway was appointed as stand-by counsel
    for Mr. Daker.
    In error, the Affidavit of Indigency generated by the
    Circuit Defender’s Office indicated that there was a
    finding that Mr. Daker was indigent. There was no such
    finding. As a matter of fact, the opposite is true. There
    was a determination by the Cobb County Circuit
    Defender’s Office that Mr. Daker was not indigent.
    Daker’s trial was set to begin on February 20, 2012. On
    February 17, however, at the end of a motions hearing presided over
    by a senior judge, Jason Treadaway informed the court that Daker
    10
    had just told him that Daker was “turning the case over to the
    lawyers.” Treadaway said that they were not ready and were going
    to have Daker evaluated for mental competency because he had
    “now turned it over to the lawyers formally”; the court replied,
    “Okay.”
    On the day set for trial, February 20, the Treadaways moved
    for a continuance, which the trial court initially denied, saying that
    “it seems . . . that much of Mr. Daker’s self-made defense has been
    to   delay   and   obfuscate   and    appeal . . . everything[.]”   The
    Treadaways then moved to withdraw as counsel based on Rule 1.1
    of the Georgia Rules of Professional Conduct, which requires that
    counsel not proceed in a matter when counsel is not prepared; the
    court denied that motion. After a recess and conference with counsel
    for both parties, however, the court reconsidered its ruling and
    granted a continuance for the Treadaways to prepare for trial. The
    court then proceeded to allow defense counsel to “make a firm
    record” about whether Daker was represented by counsel or self-
    represented. Daker was called to testify and had the following
    11
    exchange with Michael Treadaway:
    Q: And you are freely and voluntarily stating to the [c]ourt
    at this time that you want to give up [the right to
    represent yourself] throughout this proceeding and you
    want to be represented by attorneys throughout this
    proceeding, including, if necessary, following a trial if an
    appeal is necessary; is that correct?
    A: That’s correct.
    Q: And at this time you are represented by court-
    appointed attorneys Mike Treadaway and Jason
    Treadaway; is that correct?
    A: Yes.
    Q: You are satisfied with our representation of you at this
    point?
    A: Yes, sir.
    On August 31, however, Daker filed a motion for replacement of
    counsel.
    (b) The trial and sentencing hearing. On September 10, 2012,
    Daker’s trial began, and the trial court denied his motion to replace
    his counsel. The next day, at the end of jury selection but before the
    jury was sworn in, Daker asked to represent himself again. The trial
    court mentioned that Daker could hire an attorney as he had done
    with Brian Steel. But the court then noted that Daker had made a
    “binding” agreement to be represented by the Treadaways in order
    12
    to receive a continuance, so the court initially denied the request.
    The next morning, however, at the prosecutor’s suggestion, the court
    reconsidered Daker’s request and conducted a Faretta hearing. 3 The
    court read out loud a portion of the transcript from the February 20
    motions hearing, including the first question and answer quoted
    above, and said that Daker “agreed to be represented throughout the
    entirety of the trial.” The court then confirmed with Daker that he
    was unequivocally, knowingly, intelligently, and voluntarily giving
    up his right to counsel for “the entirety of these proceedings” and
    found that he was mentally competent to handle his legal affairs;
    the court also explained to Daker in detail the consequences of his
    self-representation at trial and confirmed that he understood them.
    The court concluded that Daker could represent himself and
    appointed Jason Treadaway to serve as standby counsel (although
    the court directed Treadaway to sit in the gallery rather than at
    counsel table with Daker). The post-conviction process was not
    3 See Faretta v. California, 
    422 U.S. 806
    , 835-836 (95 SCt 2525, 45 LE2d
    562) (1975).
    13
    separately discussed during the court’s colloquy with Daker. On
    September 28, the jury found Daker guilty of all charges.
    Three days later, on October 1, 2012, the trial court sentenced
    Daker to serve life in prison plus 47 and 1/2 years. Near the end of
    the sentencing hearing, the court advised Daker of his right to
    appeal and to file a habeas petition. The court also noted that “the
    circuit defender is of the opinion [that Daker has] resources to pay
    for counsel[,]” and that it was “directing the circuit defender to take
    whatever steps necessary to proceed against [Daker] for the
    attorney’s fees that the taxpayers of Cobb County and the State of
    Georgia have expended on [his] behalf that [he has] grossly
    abused.”4
    Daker filed a pro se motion for new trial that same day, which
    he later amended multiple times. The same day, Jason Treadaway
    4  Cf. OCGA §§ 17-12-51 (a) (authorizing trial courts to impose, as a
    condition of probation, repayment of costs for providing legal representation
    and other defense expenses paid for by a municipality, a county, or the state,
    if the payment does not impose a hardship upon the defendant); 17-12-52 (a)
    (authorizing a county or municipality to recover payment or reimbursement if
    legal assistance was paid for by the county or municipality and the person was
    not eligible to receive it or has been ordered to pay under OCGA § 17-12-51 and
    has not done so).
    14
    also filed a motion for new trial on Daker’s behalf, signing the
    motion as standby counsel. There is no indication that Daker had
    standby counsel after this point.
    (c) The motion for new trial proceeding. On October 11, 2012,
    Daker filed a motion for appointment of “appellate counsel to
    represent him on any motion for new trial and on appeal.” On the
    same day, Daker filed a motion “to proceed in forma pauperis . . . for
    a copy of the trial transcript, on any motion for new trial, and on
    appeal.” On October 31, the trial court denied the motion for
    appointment of appellate counsel, ruling that Daker “did not qualify
    for appointed counsel” based on the March 16, 2011 interview with
    the CDO and that nothing in the record showed that his financial
    circumstances had changed since that date, as he “ha[d] been
    incarcerated since that time and his basic needs ha[d] been provided
    for by the Cobb County Jail.” On November 5, 2012, the trial court
    denied Daker’s motion to proceed in forma pauperis, ruling that
    Daker “was not found to be indigent” for the same reasons. On
    March 7, 2013, Daker filed a motion for appointment of standby
    15
    counsel “to assist him in preparing for, and presenting his motion
    for new trial, and if necessary, direct appeal from his conviction.” On
    June 4, the trial court denied the motion, again ruling that based on
    the March 16, 2011 interview with the CDO, Daker “did not qualify
    for appointed counsel” and that “his basic needs ha[d] been provided
    for by the Cobb County Jail and the Georgia Department of
    Corrections.”
    Accordingly, Daker represented himself during the first
    portion of his motion for new trial hearing, which occurred on
    August 8 and 9, 2013. The second portion of the hearing occurred on
    October 7 and 8, 2013. At the outset of the October 7 proceeding,
    Daker informed the trial court that he had attempted to retain
    private attorney Rodney Zell as pro bono counsel for the second
    portion of the hearing, but Zell had a schedule conflict with a murder
    trial and would represent Daker only if the hearing was continued
    to give Zell time to prepare. The court orally denied the requested
    continuance, noting that the hearing had been scheduled for some
    time, Zell had not entered an appearance, and it was the second time
    16
    that Daker had decided to get a lawyer “midstream” and seek a
    continuance for that reason.5 Zell never filed an appearance in the
    trial court, and Daker continued to represent himself.
    On October 18, 2013, Daker filed a motion for a new
    determination of indigency, asking the trial court to order the CDO
    to make a new inquiry as to his indigency status for post-conviction
    motions and appeal. On October 30, the court entered an order
    denying the motion as untimely and describing the motion as
    “particularly frivolous” given Daker’s “history of gamesmanship
    regarding matters of counsel and self-representation.” The court
    added:
    [Daker] has hired and been appointed counsel in the past
    and, conveniently, fired counsel or asked for standby
    counsel for representation at his own convenience to
    obtain continuances. There is every indication that these
    last minute requests for appointment of counsel are part
    of the same strategy.
    The order also noted that “a fair reading of the letters between
    5 The trial court was apparently referring to the Treadaways’ request for
    a continuance of Daker’s trial on February 20, 2012, the day that it was
    initially scheduled to begin.
    17
    [Daker] and Lottie Spencer Blatz would indicate he has private
    resources by which to obtain counsel were counsel willing to take his
    case” and that Daker had been incarcerated “since he was
    determined not indigent” so “all his basic needs have been met” and
    his “financial circumstances have no reason to have changed” since
    the CDO interviewed him in March 2011. The court therefore
    declined to “exercise its discretion to redetermine or appoint
    counsel.”
    On the same day, the trial court also denied Daker’s motion for
    new trial. On November 26, 2013, Daker, still representing himself,
    filed a timely notice of appeal to this Court.
    (d) The initial direct appeal, remand, and subsequent appeal.
    On October 28, 2014, Daker filed another motion in the trial court
    asking to proceed in forma pauperis on appeal. On October 31, his
    appeal was docketed in this Court, but on January 29, 2015, we
    struck the appeal from the docket and remanded the case to the trial
    court for the limited purpose of holding an evidentiary hearing and
    ruling on Daker’s motion to disqualify the Cobb County District
    18
    Attorney and his office from representing the State on appeal. In an
    order entered on April 17, 2015, the trial court denied Daker’s
    “motion for a new determination of indigency” (presumably referring
    to his October 2014 motion to proceed in forma pauperis on appeal),
    explaining that “the [c]ourt and the [CDO] have repeatedly found
    that [he] is not indigent[.]” On June 30, Daker filed a “motion for
    writ of mandamus” in his criminal case seeking to compel the Circuit
    Defender to evaluate his indigency status and appoint appellate
    counsel. On August 26, the trial court entered an order denying
    Daker’s motion to disqualify the Cobb County District Attorney’s
    Office. On September 16, the trial court summarily denied Daker’s
    mandamus “motion.”
    Daker, still pro se, filed numerous notices of appeal to this
    Court. On April 27, 2016, we docketed 34 cases relating to Daker’s
    appeals. On May 23, we dismissed all but three of those cases as
    duplicative or for failure to follow proper interlocutory or
    discretionary appeal procedures, and on June 6, we entered an order
    consolidating the three remaining cases for review. In Daker v.
    19
    State, 
    300 Ga. 74
     (792 SE2d 382) (2016), we rejected Daker’s claims
    of error and affirmed his convictions. 6 Daker did not enumerate as
    error any alleged violation of his right to counsel for his motion for
    new trial proceeding and direct appeal.
    (e) The habeas petition and hearing. On January 20, 2017,
    Daker, still representing himself, filed the habeas corpus petition
    now at issue before this Court, challenging his Cobb County
    convictions and raising 438 grounds for relief. The habeas court held
    an evidentiary hearing on December 20, 2017, and on August 22,
    2018, the court denied relief in a 76-page final order, which for most
    of Daker’s grounds merely recited his basic allegations and then
    summarily ruled that the claim was “without merit,” adding for
    6 The notices of appeal in the three cases challenged trial court orders
    denying Daker’s eighteenth motion to recuse, granting the State’s motion to
    complete the record for the prior appeal, and denying Daker’s motion to
    disqualify the Cobb County District Attorney’s Office. In Daker’s brief for these
    appeals, he enumerated 10 errors, none of which directly related to those three
    trial court orders and none of which challenged his convictions or the denial of
    his motion for new trial. See Daker, 
    300 Ga. at 74-75
    . We also explained that
    because Daker had requested that all transcripts and supporting evidence be
    omitted from the record for appeal, we were unable to evaluate whether the
    evidence presented at his trial was legally sufficient to support his convictions.
    See 
    id.
    20
    some grounds that they were also barred by res judicata or by
    procedural default.
    Daker filed a timely pro se notice of appeal. Rodney Zell then
    began representing Daker and filed a timely application in this
    Court for a certificate of probable cause to appeal.7 In the
    application, Daker specifically claimed only that the trial court
    erroneously denied his state and federal constitutional right to
    appellate counsel, despite his repeated requests for counsel, and
    that his requests for a determination of his indigency status for
    purposes of having counsel appointed were improperly delegated to
    and erroneously denied by the CDO.
    On November 18, 2019, this Court issued an order granting
    Daker’s application, vacating the habeas court’s order with regard
    to the claims Daker had raised regarding the denial of his right to
    appellate counsel and the determination of his indigency status, and
    remanding the case with direction to the habeas court to identify
    7It appears that Zell is representing Daker pro bono, although that does
    not appear to be stated in the record.
    21
    which of Daker’s 438 grounds specifically implicate those claims,
    consider those grounds based on the evidence already presented,
    and then issue thorough findings of fact and conclusions of law as to
    those grounds as required by OCGA § 9-14-49, 8 after which either
    party, if unsatisfied, could appeal. See Case No. S19H0355.
    (f) The habeas court’s order on remand. On April 29, 2020, the
    habeas court entered a new final order. The new order incorporated
    verbatim from the court’s original order the findings of facts and
    conclusions of law on Daker’s 438 grounds, including those
    implicating the issues of whether Daker was denied his right to
    appellate counsel and whether the determination of his indigency
    status was improperly delegated to and denied by the CDO – all of
    which the court summarily concluded were “without merit.”9 The
    8 OCGA § 9-14-49 says in pertinent part, “After reviewing the pleadings
    and evidence offered at the trial of the case, the judge of the superior court
    hearing the case shall make written findings of fact and conclusions of law
    upon which the judgment is based.”
    9 The habeas court identified grounds 252, 367 through 370, 437, and 438
    as implicating the issue of whether Daker was denied his right to appellate
    counsel, and identified grounds 36, 69, 76, 247, and 253 as implicating the issue
    of whether the determination of Daker’s indigency status was improperly
    delegated to and denied by the CDO.
    22
    order then included new sections discussing these two claims and
    reaching conclusions based on legal analysis and specific findings
    from the record that contradict the restated rulings that those
    grounds were meritless.
    (i) Denial of the right to appellate counsel. In the section of the
    order addressing this claim, the habeas court first referenced its
    prior rulings on the seven grounds related to this claim. The court
    then recited applicable law, explaining that for a defendant to
    properly waive his Sixth Amendment right to counsel and represent
    himself, “[t]he record must reflect a finding on the part of the trial
    court[] that the defendant has validly chosen to proceed pro se” and
    that “this choice was made after the defendant was made aware of
    his right to counsel and the dangers of proceeding without counsel,”
    citing McDaniel v. State, 
    327 Ga. App. 673
    , 674 (761 SE2d 82) (2014).
    The habeas court said that the record in this case shows that
    the trial court permitted Daker to represent himself during his trial
    after the trial court explained the dangers and consequences of self-
    representation in a jury trial on multiple occasions and Daker
    23
    indicated that he fully understood. The habeas court also pointed
    out that Daker “had four separate attorneys appointed as counsel or
    standby counsel before and during his trial but repeatedly asked the
    [trial] court to remove each attorney due to complaints or
    disagreements,” which was permitted without him showing good
    cause for removing counsel. 10 The habeas court recognized that “[a]
    valid waiver [of the right to counsel] can also exist when an
    uncooperative defendant repeatedly requests a different attorney
    and is warned that he must utilize the appointed attorney or proceed
    pro se if he cannot hire his own attorney,” citing Jones v. Walker,
    540 F3d 1277, 1289 (11th Cir. 2008).
    The habeas court found that the “record contains a valid waiver
    of trial counsel,” but “there is no waiver of counsel on appeal.”
    (Emphasis in original.) The court then said that “[i]t can be argued
    that [Daker]’s previous conduct in not accepting appointed counsel
    and wanting appointed attorneys removed also applied to his
    The first of those attorneys, Brian Steel, was actually retained rather
    10
    than appointed.
    24
    appeal[,]” but “in an abundance of caution, the [c]ourt finds that the
    record does not contain a waiver of counsel as to appellate counsel
    explicitly.” (Emphasis in original.)
    The habeas court explained that Daker’s right to appellate
    counsel “was addressed by the trial court only through a statement
    [at the close of sentencing] that he was not indigent,” and that Daker
    “did not have retained counsel that would have been expected to
    carry out his appeal,” citing Brown v. State, 
    301 Ga. 728
    , 728-729
    (804 SE2d 16) (2017). The habeas court further noted that Daker
    filed a motion to proceed in forma pauperis on appeal, but the trial
    court “relied on a previous determination of indigency from over a
    year earlier.” The habeas court concluded that “[t]he record does not
    show that [Daker] voluntarily waived the right to counsel on appeal
    as required,” citing United States v. Hammonds, 
    782 Fed. Appx. 899
    ,
    901 (11th Cir. 2019), and that “[a]lthough the record in this case is
    voluminous and difficult to decipher, th[e] [c]ourt does not find a
    clear waiver of appellate counsel.” Perplexingly, given these findings
    and conclusions, the habeas court ended its analysis by saying:
    25
    “Therefore, this [c]ourt must remand the case to the trial court to
    determine if [Daker] was entitled to appellate counsel.”
    (ii) Determination of indigency status. In the section of the
    order addressing this claim, the habeas court again started by
    referencing its prior rulings on the five grounds related to this claim.
    The court then recited some applicable legal principles. The court
    noted that defendants in criminal cases have the Sixth Amendment
    right to be represented by counsel, although trial courts must
    appoint counsel only for indigent defendants, citing Hawkins v.
    State, 
    222 Ga. App. 461
    , 462 (474 SE2d 666) (1996). The habeas
    court recognized that the circuit public defender is responsible for
    determining who meets the definition of “indigent,” citing Roberson
    v. State, 
    300 Ga. 632
    , 634 (797 SE2d 104) (2017). Citing Massey v.
    State, 
    278 Ga. App. 303
    , 306 (628 SE2d 706) (2006), the court said
    that the focus in deciding
    whether a defendant who previously retained counsel at
    trial or after is indigent and entitled to have counsel
    appointed on appeal is not upon the current state of the
    defendant’s legal representation or how that
    representation was funded, but upon the defendant’s
    26
    constitutional right to legal representation,
    and if a defendant makes a claim of indigence to a trial court, the
    court has a duty to inquire into the claim and make a determination
    about its legitimacy.
    The habeas court said that “[t]he record is disordered in this
    case, but regardless, the trial court relied on a March 16, 2011,
    [CDO] interview finding that [Daker] was not indigent,” even
    though Daker’s jury trial took place in September 2012. The habeas
    court also said that although Daker had nearly retained counsel for
    his motion for new trial, he was thereafter pro se, which took the
    court’s analysis back to whether Daker should have had appellate
    counsel appointed. The court once again ended its analysis by
    saying: “Therefore, this [c]ourt must remand the case to the trial
    court to determine if [Daker] was entitled to appellate counsel.”
    In a final section of the order labeled “CONCLUSION,” the
    habeas court said:
    Having fully considered all of Petitioner’s claims, the
    [c]ourt finds that this case must be REMANDED to the
    trial court to determine if Petitioner was entitled to
    27
    appellate counsel. Petitioner’s remaining grounds are
    without merit and hereby DENIED. IT IS HEREBY
    ORDERED that Petitioner’s Application for Writ of
    Habeas Corpus be DENIED.
    The first and third sentences of this conclusion appear to be
    inconsistent.
    The Warden filed a timely notice of appeal from the habeas
    court’s order, and Daker filed a timely notice of cross-appeal.
    2. Daker’s right-to-appellate-counsel claim.
    In this Court, Daker contends that he was denied his
    constitutional right to counsel for the direct appeal of his criminal
    convictions, specifically arguing that he did not waive his right to
    appellate counsel and that the determination of his indigency status
    for appointment of counsel was improperly delegated to and
    erroneously denied by the Cobb County Circuit Defender’s Office.
    We conclude that Daker’s right to appellate counsel was violated
    regardless of whether he was indigent.
    Whether or not Daker was indigent at the time he was
    convicted and sentenced, he had a right to counsel for his motion for
    28
    new trial proceeding and his first appeal of right. See Hall v.
    Jackson, 
    310 Ga. 714
    , 720 (854 SE2d 539) (2021) (“A criminal
    defendant in Georgia is constitutionally entitled to the effective
    assistance of counsel during his trial, motion for new trial
    proceeding, and direct appeal.”). See also Evitts v. Lucey, 
    469 U.S. 387
    , 393-397 (105 SCt 830, 83 LE2d 821) (1985) (“[T]he services of a
    lawyer will for virtually every layman be necessary to present an
    appeal in a form suitable for appellate consideration on the merits.”).
    As discussed in greater detail below, a defendant may validly elect
    to represent himself during post-conviction proceedings by waiving
    his right to counsel either expressly, see Merriweather v. Chatman,
    
    285 Ga. 765
    , 766 (684 SE2d 237) (2009), or functionally, see Bryant
    v. State, 
    268 Ga. 616
    , 617-618 (491 SE2d 320) (1997); Calmes v.
    State, 
    312 Ga. App. 769
    , 773 (719 SE2d 516) (2011). See also Iowa v.
    Tovar, 
    541 U.S. 77
    , 87-88 (124 SCt 1379, 158 LE2d 209) (2004)
    (“While the Constitution ‘does not force a lawyer upon a defendant,’
    it does require that any waiver of the right to counsel be knowing,
    voluntary, and intelligent.” (citation omitted)). A non-indigent
    29
    defendant may functionally waive the right to counsel by failing to
    retain counsel with reasonable diligence, see Hatcher v. State, 
    320 Ga. App. 366
    , 371-373 (739 SE2d 805) (2013), and regardless of
    indigency, a defendant may functionally waive the right to counsel
    by engaging in dilatory tactics, see Bryant, 268 Ga. at 617; Calmes,
    312 Ga. App. at 773.
    Although Daker expressly waived his right to counsel for trial,
    the record does not show that he ever expressly or functionally
    waived his right to appellate counsel. To the contrary, the record
    shows that after he was convicted, Daker repeatedly requested
    counsel to assist him in his motion for new trial proceeding and
    direct appeal.
    (a) Express waiver. In most cases, before a defendant may
    properly proceed pro se in initial post-conviction proceedings and on
    direct appeal, he must be advised of the dangers of such self-
    representation and knowingly, intelligently, and voluntarily waive
    his right to appellate counsel on the record. See Merriweather, 
    285 Ga. at 766
    . “In the absence of a showing in the record that the trial
    30
    court made such admonitions, the defendant has not validly waived
    his right to appellate counsel.” Id.11
    11 This Court has not endorsed a specific colloquy that trial courts should
    use when advising defendants of the dangers of self-representation in post-
    conviction proceedings, and we will not do so today, particularly because
    Daker’s claim indicates that he will not seek to waive his right to appellate
    counsel when this case returns to the trial court. See Merriweather, 
    285 Ga. at
    767 n.2 (“We decline appellant’s request to adopt a specific colloquy for trial
    courts to follow when admonishing defendants on the dangers of self-
    representation at trial or on appeal.”). See also Hammonds, 782 Fed. Appx. at
    903 & n.3 (noting that neither the Eleventh Circuit nor any other federal court
    of appeals (outside the context of collateral review) has ever “delineated what
    is constitutionally required for knowing, voluntary, and intelligent waiver of
    appellate counsel” (emphasis in original)). We also note that the United States
    Supreme Court has held that there is no “formula or script to be read to a
    defendant who states that he elects to proceed without counsel.” Tovar, 
    541 U.S. at 88
     (explaining that what a defendant must be advised of regarding the
    right to counsel before a guilty plea may be less than for a defendant waiving
    counsel for a trial).
    Contrary to this position, the Court of Appeals indicated in Weber v.
    State, 
    203 Ga. App. 356
     (416 SE2d 868) (1992), that before a waiver of appellate
    counsel would be valid,
    the record should reflect a defendant’s appreciation of the charges
    for which he has been convicted and possible avenues of post-
    judgment relief. A defendant should also be aware that post-
    judgment practice involves strict compliance with rules of practice
    and procedure; that failure to comply with these rules may result
    in waiver of important issues and that pro se parties are generally
    bound by the same rules of practice and procedure as a lawyer.
    Id. at 357 (citations omitted). Although discussion of these topics could
    certainly support the finding of a valid waiver of appellate counsel, whether
    such a finding could be made in the absence of them would depend on the
    overall circumstances of the particular case. We therefore disapprove of Weber
    to the extent it can be read to establish a required colloquy for the waiver of
    the right to appellate counsel.
    31
    In this case, as the habeas court found, “the record contains a
    valid waiver of trial counsel.” (Emphasis in original.) Following jury
    selection, after Daker asked to represent himself again, the trial
    court conducted a Faretta hearing, during which it explained to
    Daker in detail the consequences of his self-representation at trial
    and found that he was aware of his rights and the consequences of
    proceeding without an attorney. But the record contains no similar
    discussion with Daker of the risks of self-representation with regard
    to post-conviction proceedings and appeal and no indication that he
    wished to waive his right to appellate counsel.12 To the contrary,
    after he was convicted, Daker repeatedly requested the appointment
    of appellate counsel and later tried to enlist Rodney Zell as pro bono
    counsel for part of his motion for new trial proceeding, so the trial
    court was clearly on notice that Daker did not wish to exercise his
    12   The only mention of an “appeal” in the discussions of Daker’s
    representation before and during trial was in his exchange with Michael
    Treadaway on February 20, 2012, which the trial court repeated in its colloquy
    with Daker on September 10, 2012. In that exchange, Daker testified that he
    wanted to “give up [the right to represent himself] throughout this proceeding
    and . . . want[ed] to be represented by attorneys throughout this proceeding,
    including, if necessary, following a trial if an appeal is necessary.”
    32
    right to represent himself during his post-conviction proceedings. In
    sum, the record demonstrates that Daker did not receive warnings
    regarding the dangers of self-representation on appeal and did not
    expressly waive his right to appellate counsel.
    (b) Functional waiver.
    (i) Waiver by a non-indigent defendant’s failure to retain
    counsel. One type of functional waiver occurs when a defendant who
    is not entitled to appointed counsel fails to act diligently to secure
    counsel.
    [W]here a non-indigent defendant has not invoked his
    right to represent himself at trial, but has also failed to
    hire an attorney to represent him, . . . the determination
    of whether he validly waived his right to counsel does not
    turn upon whether he knowingly and intelligently chose
    to proceed pro se. Instead, a finding of waiver depends on
    whether the non-indigent defendant exercised reasonable
    diligence in securing representation.
    Porter v. State, 
    358 Ga. App. 442
    , 447-448 (855 SE2d 657) (2021)
    (citation omitted). For this type of waiver of the right to counsel, the
    trial court is not required to give “a warning of the dangers of
    proceeding pro se[,] because such requirement applies ‘only in the
    context of a waiver of the right to counsel by election of the
    33
    countervailing right of self-representation.’” Hatcher, 320 Ga. App.
    at 372-373 (emphasis, citation, and footnote omitted). See also
    Burnett v. State, 
    182 Ga. App. 539
    , 542-543 (356 SE2d 231) (1987).
    Instead,
    when presented with a non-indigent defendant who has
    appeared for trial without retained counsel, the trial
    judge has a duty to delay the proceedings long enough to
    ascertain whether the defendant has acted with
    reasonable diligence in obtaining an attorney’s services
    and whether the absence of an attorney is attributable to
    reasons beyond the defendant’s control.
    Porter, 358 Ga. App. at 448 (emphasis and citations omitted). See
    also Shaw v. State, 
    251 Ga. 109
    , 112 (303 SE2d 448) (1983). A
    functional waiver of this sort is not presumed simply because a non-
    indigent defendant lacks counsel. It is incumbent on the trial court
    to determine on the record whether the defendant has exercised
    reasonable diligence in attempting to retain counsel and whether
    the absence of counsel is attributable to reasons beyond the
    defendant’s control. See Porter, 358 Ga. App. at 450-451; Martin v.
    State, 
    240 Ga. App. 246
    , 249-250 (523 SE2d 84) (1999).
    After Daker was convicted and sentenced, the trial court never
    34
    inquired about his efforts to retain counsel and never admonished
    him to do so, even as he repeatedly expressed his desire for appellate
    counsel and even as the court repeatedly rejected his requests to
    have counsel appointed to represent him. At the outset of the second
    portion of the motion for new trial hearing, Daker informed the trial
    court that he had attempted to retain Zell as pro bono counsel, but
    that Zell had a scheduling conflict due to a murder trial and would
    represent Daker only if the hearing was continued to give Zell time
    to prepare. The court orally denied the continuance, noting that the
    hearing had been scheduled for some time, that Zell had not entered
    an appearance, and that it was the second time Daker had decided
    to get a lawyer “midstream” and seek a continuance for that reason
    (although the other time was before trial about 18 months earlier).
    Before requiring Daker to represent himself during the motion
    for new trial proceeding and on direct appeal, and even in the
    discussion of Zell’s possible appearance, the trial court did not
    conduct an inquiry or make findings on the record regarding the
    efforts Daker had made to retain appellate counsel or whether his
    35
    lack of counsel was due to reasons beyond his control. Thus, the trial
    court never made the findings required to properly conclude that
    Daker functionally waived his right to appellate counsel. See Porter,
    358 Ga. App. at 452 (holding that “the trial court failed to properly
    evaluate whether Porter acted with reasonable diligence in
    obtaining counsel and whether the absence of counsel was
    attributable to reasons beyond Porter’s control,” so a new trial was
    required); Martin, 240 Ga. App. at 250 (holding that a new trial was
    required when “the trial court failed to exercise its affirmative duty
    of considering Martin’s individual circumstances and determining
    on the record whether Martin exercised reasonable diligence in
    attempting to retain trial counsel”). Compare Hatcher, 320 Ga. App.
    at 371-372 (concluding that the trial court did not abuse its
    discretion when it required that a defendant represent himself at
    trial after he functionally waived his right to counsel by failing to
    exercise diligence to retain counsel despite repeated admonitions to
    do so by the trial court over a three-month period).
    (ii) Functional waiver by engaging in dilatory tactics. A second
    36
    type of functional waiver occurs when a trial court concludes that a
    defendant (whether indigent or not) is attempting to use the
    discharge and employment of counsel as a dilatory tactic and
    declines to continue a proceeding until the defendant obtains new
    counsel. See Bryant, 268 Ga. at 617; Hobson v. State, 
    266 Ga. 638
    ,
    638 (469 SE2d 188) (1996). See also Jefferson v. State, 
    209 Ga. App. 859
    , 861 (434 SE2d 814) (1993) (explaining that if a defendant does
    not have good reason for discharging his counsel, a trial court does
    not err by requiring him to choose between continued representation
    by that attorney and proceeding pro se). Before a trial court requires
    a defendant to proceed pro se under this waiver theory, the court
    should advise the defendant of the dangers of self-representation.
    See Hobson, 
    266 Ga. at 638
    .
    Near the end of the sentencing hearing, the trial court advised
    Daker of his right to appeal and to file a habeas petition and noted
    that “the circuit defender is of the opinion [that Daker has] resources
    to pay for counsel.” Daker then did not have counsel in any capacity
    during the motion for new trial proceeding or his direct appeal. On
    37
    October 30, 2013, the court issued an order denying Daker’s motion
    for a new determination of indigency for post-conviction motions and
    appeal. In that order, the trial court stated that Daker’s motion was
    “particularly frivolous” given his “history of gamesmanship
    regarding matters of counsel and self-representation” and that he
    “has hired and been appointed counsel in the past and, conveniently,
    fired counsel or asked for standby counsel for representation at his
    own convenience to obtain continuances.” The court added that
    “[t]here is every indication that these last minute requests for
    appointment of counsel are part of the same strategy.” The court also
    discussed its reasons for believing that Daker was not indigent and
    “decline[d] to exercise its discretion to redetermine or appoint
    counsel.”
    Repeatedly obtaining and discharging counsel can be dilatory
    conduct that authorizes a trial court to conclude that a defendant
    had made the functional equivalent of a knowing and voluntary
    waiver of counsel and therefore decline to continue a proceeding. But
    the October 30, 2013 order was entered on the same day that the
    38
    court entered the order denying Daker’s motion for new trial, over a
    year after that post-conviction proceeding began. The trial court did
    not cite any functional waiver cases or make a finding regarding a
    functional waiver of the right to appellate counsel. And all of the
    conduct that the court appeared to reference regarding counsel and
    self-representation occurred before or during Daker’s trial rather
    than during the post-conviction process, when Daker never had
    counsel. At no time during the post-conviction proceedings did the
    trial court advise Daker of the dangers of representing himself at
    that distinct stage, ask him to choose between representing himself
    or retaining counsel, or give him a deadline by which to obtain
    counsel. Compare Lewis v. State, 
    330 Ga. App. 650
    , 651 (768 SE2d
    821) (2015) (holding that the trial court was authorized to conclude
    that the defendant was attempting to use the discharge of counsel
    as a dilatory tactic, and thus had waived his right to counsel, when
    he attempted to discharge counsel and sought a continuance on the
    first day of trial, insisting that he did not want the court-appointed
    attorney to represent him despite the trial court’s warnings about
    39
    the dangers of proceeding without counsel); Jefferson, 209 Ga. App.
    at 860-861 (holding that the defendant’s conduct amounted to a
    waiver of counsel where he “appeared with counsel and was
    informed that he was not entitled to appointment of counsel of his
    own choosing, yet he chose to refuse the services of his trial
    counsel”). Thus, the record does not demonstrate this sort of
    functional equivalent of a waiver of appellate counsel by Daker.
    For these reasons, the habeas court correctly found that the
    record does not include a clear waiver of appellate counsel and
    properly concluded that the record does not show that Daker
    voluntarily waived his right to counsel on appeal.
    3. Daker’s indigency-determination claim.
    Daker also argues that his requests for a determination of his
    indigency status for the purpose of appointing counsel to represent
    him were improperly delegated to and erroneously denied by the
    Circuit Defender’s Office, and that instead the trial court should
    have made the determination. Daker has it backward under current
    Georgia law. The Indigent Defense Act of 2003 (IDA), OCGA § 17-
    40
    12-1 et seq., expressly assigns to the circuit public defenders (and
    other indigent defense providers), rather than to the trial courts, the
    authority and responsibility to determine if criminal defendants are
    indigent and therefore entitled to appointed counsel at the
    government’s expense. See OCGA § 17-12-24 (a) (“The circuit public
    defender[ or] any other person or entity providing indigent defense
    services . . . shall determine       if a person or juvenile arrested,
    detained, or charged in any manner is an indigent person entitled to
    representation under [the IDA].”); Roberson 
    300 Ga. at 634
    .13
    The CDO’s last determination of Daker’s indigency status was
    the February 14, 2012 statement, signed personally by Cobb
    13 In support of his argument about who should determine indigency for
    purposes of representation, Daker relies entirely on pre-IDA cases. See, e.g.,
    Ford v. State, 
    254 Ga. App. 413
    , 414 (563 SE2d 170) (2002) (“While it is not
    error to have the public defender interview applicants for appointment of
    counsel, it is the trial court’s responsibility to make a determination of
    indigence based upon evidence and to establish a record of such finding.”).
    We note that trial courts retain the authority under OCGA § 9-15-2 to
    decide if criminal defendants are indigent for the purpose of paying the costs
    of an appeal. See Roberson, 
    300 Ga. at 634-635
    . Daker does not challenge the
    trial court’s rulings on his motions to proceed in forma pauperis to obtain
    transcripts and avoid costs, and the merits of those findings are not reviewable.
    See 
    id. at 635
    .
    41
    County’s circuit public defender, saying that Daker was not indigent
    based on a March 16, 2011 interview. That determination remained
    in effect notwithstanding the Treadaways’ service as Daker’s trial
    counsel after the February 17, 2012 motions hearing and Jason
    Treadaway’s service as court-appointed standby counsel from the
    third day of the trial through the sentencing hearing, and despite
    the trial court’s own findings regarding Daker’s indigency status in
    post-trial orders denying his motions for appointed appellate
    counsel.
    If Daker believed that his indigency status had changed with
    respect to his right to appointed counsel, his remedy was to seek a
    re-determination from the CDO, by mandamus if necessary. See
    Calmes, 312 Ga. App. at 774 (explaining that when a defendant
    asserts that a circuit public defender has failed to fulfill the duties
    prescribed by the IDA, the defendant may seek relief by application
    for a writ of mandamus); Bynum v. State, 
    289 Ga. App. 636
    , 637-638
    (658 SE2d 196) (2008) (same). The record shows that after the
    February 2012 CDO statement, Daker filed several motions seeking
    42
    a re-determination of his indigency status for appointed counsel,
    which the trial court denied. Daker later tried to seek mandamus on
    June 30, 2015, but he did so improperly as a motion in his criminal
    case rather than as a freestanding mandamus action. See Henderson
    v. State, 
    303 Ga. 241
    , 244 (811 SE2d 388) (2018).
    If the CDO declines to re-determine Daker’s indigency status
    when this case returns to the trial court – which will be more than
    nine years since the last CDO determination – Daker might file a
    mandamus action at that time. Cf. Hill v. State, 
    285 Ga. App. 310
    ,
    312 (645 SE2d 758) (2007) (pre-IDA case involving the right to
    appointed counsel for appeal, focusing on “‘whether appellant was at
    the time of his conviction an indigent person who could qualify for
    appointed counsel’” (quoting Bell v. Hopper, 
    237 Ga. 810
    , 811 (299
    SE2d 658) (1976)) (emphasis added)). As this case currently stands,
    however, Daker is not indigent for the purpose of appointing him
    appellate counsel at the government’s expense.
    4. Conclusion.
    After analyzing the law and the record regarding Daker’s right-
    43
    to-counsel claim, the habeas court correctly found that the “trial
    record contains a valid waiver of trial counsel,” but “[t]he record does
    not show that [Daker] voluntarily waived the right to counsel on
    appeal as required.” (Emphasis in original.) The habeas court also
    recognized that a valid functional waiver of the right to counsel can
    occur based on a defendant’s manipulation of counsel, but again
    correctly found that, notwithstanding Daker’s conduct regarding his
    attorneys before and during his trial, the record does not contain a
    clear waiver of appellate counsel.
    Confusingly, by repeating verbatim in its order the summary
    rulings from the prior order that all of Daker’s 438 grounds for
    habeas relief were “without merit,” the habeas court appears to have
    reached the inconsistent conclusion that the seven grounds related
    to Daker’s claim that he was denied his right to appellate counsel
    were meritless. The habeas court also inconsistently and improperly
    ended its discussion of that claim by saying that the case needed to
    be remanded “to the trial court to determine if [Daker] was entitled
    to appellate counsel.” As the Warden correctly argues – and Daker
    44
    agrees – such a remand is inappropriate in any event because a
    habeas court is not authorized to remand a case to the trial court to
    make findings of fact or conclusions of law. See OCGA § 9-14-49
    (“After reviewing the pleadings and evidence offered at the trial of
    the [habeas] case, the judge of the superior court hearing the case
    shall make written findings of fact and conclusions of law upon
    which the judgment is based.”); Newsome v. Black, 
    258 Ga. 787
    , 788
    (374 SE2d 733) (1989) (“[OCGA § 9-14-49] does not authorize the
    superior court in a habeas corpus proceeding to remand the
    proceeding to another superior court.”). See also Martin v. Astudillo,
    
    280 Ga. 295
    , 296 (627 SE2d 34) (2006) (“Because the habeas court
    had the responsibility of resolving the merits of a claim of a
    petitioner’s constitutional challenge to the validity of his conviction
    or sentence, it was not authorized ‘to remand the proceeding to
    another superior court.’” (citation omitted)). To confuse things
    further, in the final, “CONCLUSION” section of the order, after
    repeating that the case must be remanded to the trial court, the
    habeas court ordered that the habeas petition “be DENIED,”
    45
    apparently in its entirety.
    Nevertheless, as Daker argues in his cross-appeal, there is no
    need for this Court to remand the case to the habeas court to clarify
    its conclusions because the habeas court specifically and correctly
    found and concluded that “the record does not contain a waiver as to
    appellate counsel explicitly.” (Emphasis in original.) Notably, while
    asking this Court to remand the case to the habeas court, the
    Warden does not point to anything in the record that would support
    a finding that Daker validly waived his right to appellate counsel.14
    Accordingly, we affirm the habeas court’s order to the extent
    that it is consistent with the court’s conclusion that Daker’s right to
    appellate counsel was violated, and we reverse the order to the
    extent that it summarily and inconsistently concludes that Daker’s
    14  We note that the Warden suggests that Daker’s right-to-appellate-
    counsel claim could be procedurally barred in habeas corpus because he did not
    raise it in his first, uncounseled direct appeal. See OCGA § 9-14-48 (d). But the
    unconstitutional complete denial of counsel for direct appeal of a criminal
    conviction means that the original appellate proceeding was of no validity, and
    the issues raised or not raised in the prior pro se appeal do not procedurally
    bar the issues that may be raised in a proper new appeal. See Trauth v. State,
    
    295 Ga. 874
    , 876-877 (763 SE2d 854) (2014). See also Merriweather, 
    285 Ga. at 766-767
     (directing that habeas relief be granted because the defendant did not
    validly waive his right to appellate counsel).
    46
    right-to-counsel claim is meritless, that the case must be remanded
    to the trial court, and that all habeas relief should be denied. We
    remand the case to the habeas court to grant relief to Daker in the
    form of a second, out-of-time direct appeal and to set aside the trial
    court’s order denying Daker’s motion for new trial and this Court’s
    decision affirming his convictions. See Hall, 310 Ga. at 724. When
    the case returns to the trial court, Daker’s post-conviction process
    should start anew, and he may then file a timely new motion for new
    trial or a timely notice of appeal. See id. at 724-725. He should do so
    with appointed counsel if Daker has been determined by the CDO to
    be indigent at that time; with retained counsel if Daker has been
    determined by the CDO not to be indigent at that time; or pro se if
    Daker first knowingly, intelligently, and voluntarily elects to
    represent himself in post-conviction proceedings after being
    properly advised of the risks of doing so, or if the trial court first
    makes a proper finding that Daker has functionally waived his right
    to appellate counsel.
    In closing, we recognize that Daker is an extraordinarily
    47
    litigious defendant whose shenanigans can be frustrating for courts
    to deal with. See Daker v. Bryson, Commr., Case No. S16D0733 (Feb.
    4, 2016) (order explaining that because Daker had filed over 100
    cases in this Court, virtually all lacking in merit and often showing
    a willingness to ignore or attempt to evade this Court’s rules, he
    would henceforth be required to request leave to file any document
    here and to state that the document and arguments therein were
    prepared   in   good   faith   and    not   for   vexatious   purposes).
    Nevertheless, Daker’s rights under the Constitution and laws must
    be upheld when properly asserted.
    Judgment affirmed in part and reversed in part, and cases
    remanded with direction. All the Justices concur.
    48