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

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. at767 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