David Britt v. State ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 1, 2022
In the Court of Appeals of Georgia
A21A1695. BRITT v. THE STATE.
MERCIER, Judge.
David Britt entered a negotiated guilty plea, pursuant to Alford1, upon an
indictment charging him with failure to register as a sex offender. Thereafter, he filed
a pro se motion to withdraw his guilty plea, which the trial court denied. In his only
claimed error, Britt argues that the trial court erred by allowing him to proceed pro
se during the hearing on his motion to withdraw his guilty plea. Because Britt was not
informed of the dangers of self-representation during the plea withdrawal
proceedings, we reverse and remand.
1
North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).
A “trial court’s ruling as to whether the defendant’s waiver of the right to
counsel was valid is reviewed for abuse of discretion.” Cox v. State, 317 Ga. App.
654, 654 (732 SE2d 321) (2012) (footnote omitted).
At a pre-trial hearing, the trial court discussed with Britt his desire to represent
himself. Britt expressed his dissatisfaction with the public defender assigned to his
case. The trial court informed Britt that while he had a constitutional right to counsel,
he did not have a constitutional right to counsel of his choosing. After questioning
Britt, the trial court allowed him to represent himself but warned him of the potential
dangers. The trial court did not mention the post-conviction process during its
colloquy with Britt.
At his later plea hearing, Britt reiterated his desire to represent himself. After
the trial court again warned him of the dangers of representing himself at the plea
hearing or at trial, Britt was allowed to proceed pro se. The trial court sentenced Britt
to a term of ten years, with three to be served in confinement, and his conviction was
entered.
Within 30 days of his guilty plea, and within the same term of court, Britt filed
a pro se “Motion to Withdraw Void Sentence and Pleas.” The trial court issued a
scheduling order, stating that Britt was
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entitled to the assistance of representation in this matter if he wishes to
be represented . . . [Britt] had previously made the [trial court] aware
that he did not wish to be represented by the Public Defender’s Office
with regards to the trial of this case. However, if [Britt] does wish to
inquire into representation for this matter, he is encouraged to do so.
Britt filed a “request for appointment of effective [assistance] of counsel,” and the
trial court appointed Britt counsel.
At the hearing on Britt’s motion to withdraw his guilty plea, Britt expressed his
desire to represent himself because his appointed counsel had filed a motion for a
continuance and he did not want the hearing to be continued. The trial court asked
Britt again if he wanted to represent himself, and Britt responded affirmatively but
requested that his appointed counsel remain in the courtroom on a standby basis. The
trial court denied Britt’s request for standby counsel, and, after confirming that Britt
wanted to proceed pro se, dismissed Britt’s counsel.
Britt represented himself at the hearing, which took place over two days.
Following the trial court’s denial of his motion to withdraw his guilty plea, Britt filed
this appeal, with the assistance of counsel, arguing in his sole enumerated error that
the court erred by allowing him to represent himself during his motion to withdraw
his plea. Britt argues that the trial court failed to warn him of the risks of proceeding
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pro se in his post-conviction proceeding, and therefore he did not make a knowing
waiver of appellate counsel.
As an initial matter, a plea withdrawal proceeding is a critical stage of criminal
prosecution wherein defendants are entitled to counsel. See Fortson v . State, 272 Ga.
457, 460 (1) (532 SE2d 102) (2000) (“the right to counsel attaches when a defendant
seeks to withdraw a guilty plea, thus entitling that defendant to assistance of
counsel”). Finding that Britt was entitled to post-conviction counsel for his motion
to withdraw his guilty plea, we look to see if there was a valid waiver of counsel. See
id. at 459 (1).
“[A] defendant may validly elect to represent himself during post-conviction
proceedings by waiving his right to counsel either expressly, or functionally.” Allen
v. Daker, 311 Ga. 485, 497 (2) (858 SE2d 731) (2021) (citation omitted). However,
the defendant “must be advised of the dangers of such self-representation and
knowingly, intelligently, and voluntarily waive his right to appellate counsel on the
record.” Id. at 498 (2) (a). If the record does not contain warnings from the trial court
as to the dangers of proceeding pro se during the post-conviction proceedings, “the
defendant has not validly waived his right to appellate counsel.” Id. (citation,
punctuation and footnote omitted).
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While the record shows that Britt was warned of the dangers of self-
representation at trial, He was not advised of the dangers of self-representation in his
post-conviction proceeding. An examination of the record reveals that there were no
discussions at any of the hearings about the dangers of self-representation in Britt’s
post-conviction proceeding. While the order dismissing Britt’s post-conviction
counsel, which was prepared by Britt’s counsel, stated that Britt had been “formally
advised by [the trial court] . . . about the dangers of self-[representation]”, the hearing
transcripts show no such advice from the trial court regarding post-conviction self-
representation.2
Notably, in Allen the Supreme Court stated that it “has not endorsed a specific
colloquy that trial courts should use when advising defendants of the dangers of
self-representation in post-conviction proceedings[.]” Allen, supra at 498 (2) (a) n. 11.
Given the complete absence of any colloquy regarding the dangers of self-
representation in post-conviction proceedings in the matter at hand, we similarly
decline to do so today. See id.
2
The State claims otherwise in its appellate brief, but its record citations refer
only to the warnings Britt received from the trial court about the dangers of
proceeding pro se at trial and during the plea proceedings.
5
Furthermore, the record does not reflect that the trial court found a “functional
equivalent of a knowing and voluntary waiver of counsel.” Calmes v. State, 312 Ga.
App. 769, 773 (3) (719 SE2d 516) (2011) (citation and punctuation omitted) (physical
precedent only); See also, Allen, supra at 497-498 (2). One such waiver occurs when
a non-indigent defendant fails to retain counsel. See Allen, supra at 499 (2) (b) (i). As
Britt was indigent at the time of his appeal, this waiver fails to apply.
However, functional waiver of appointed counsel can also occur when a
defendant engages in dilatory tactics.3 See Allen, supra at 501 (2) (b) (ii). At the
hearing on his motion to withdraw his guilty plea, Britt expressed his desire to
proceed pro se rather than with counsel because his appellate counsel had requested
a continuance. As such, the record does not reflect that Britt functionally waived his
right to appointed counsel through dilatory tactics. See id.
The trial court failed to advise Britt of the dangers of self-representation in his
post-conviction proceeding, and the record does not include a clear waiver of
appellate counsel. Therefore, we find that the trial court abused its discretion by
finding a waiver of counsel and as such, we reverse and remand this case to the trial
3
Of note, even if a trial court found that a defendant functionally waived their
right to counsel by engaging in dilatory tactics, “the court should advise the defendant
of the dangers of self-representation.” Allen, supra at 501 (2) (b) (ii).
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court for a re-hearing on Britt’s motion to withdraw his guilty plea to be conducted
in conformity with this opinion. See Fortson, supra at 460-461 (2).
Judgment reversed and case remanded. Dillard, P. J., and Pinson, J., concur.
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