Lewis v. the State , 330 Ga. App. 650 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, 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.
http://www.gaappeals.us/rules/
February 10, 2015
In the Court of Appeals of Georgia
A14A2132. LEWIS v. THE STATE.
MCFADDEN, Judge.
David T. Lewis was convicted in a bench trial of false imprisonment, abuse of
an elderly person, aggravated assault, and hindering a person from making an
emergency call. He appeals his convictions, arguing that the trial court erred by
denying his request for continuance. Lewis requested that continuance on the day of
trial, after firing his fourth attorney. We find that the trial court did not err and
therefore affirm Lewis’s convictions.
Lewis was indicted for the crimes on February 21, 2012. Attorney David E.
Morgan III filed an entry of appearance on May 19, 2012, and filed various motions.
The record contains no document regarding Morgan’s withdrawal, but on April 15,
2013, attorney J. Frank Smith, Jr. filed an entry of appearance and various motions.
Lewis asked Smith to withdraw, and, on July 15, 2013, Smith filed a motion to do so.
The trial court granted Smith’s motion to withdraw. Shortly thereafter, attorney Sarah
Riedel entered an appearance on Lewis’s behalf and filed motions. But less than a
month later, Lewis filed a pro se pleading consenting to Riedel’s withdrawal from the
case. Attorney Thomas F. Jarriel then began representing Lewis.
On Monday, October 7, 2013, the trial court held a calendar call at which
Lewis waived his right to a jury trial; Jarriel, Lewis’s attorney, announced that he was
ready for trial; and the court set Lewis’s trial for Friday, October 11. When the case
was called that Friday, Lewis indicated that he wanted to discharge Jarriel and sought
a continuance. The court allowed Jarriel to withdraw but denied the request for a
continuance. The bench trial proceeded with Lewis representing himself and the trial
court found him guilty.
Lewis now appeals, arguing that the trial court abused his discretion in denying
his motion for continuance.
“All applications for continuances are addressed to the sound legal discretion
of the court. . . .” OCGA § 17-8-22. “The defendant’s conduct is obviously relevant
and is a proper consideration for the judge in the exercise of his discretion. The
reason for this is to prevent the defendant from using discharge and employment of
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counsel as a dilatory tactic.” McConnell v. State, 263 Ga. App. 686, 687 (1) (589
SE2d 271) (2003) (citations and punctuation omitted). The sudden withdrawal of
retained counsel is not “ipso facto a ground for continuance.” Huckaby v. State, 127
Ga. App. 439, 440 (1) (194 SE2d 119) (1972) (citation omitted).
Lewis argues that the trial court abused his discretion denying the continuance
because the denial required Lewis to go to trial without the assistance of counsel. He
concedes, however, that he “deserves some of the blame for terminating his counsel
after the calendar call” and even that he waived his right to counsel, albeit implicitly.
Lewis had discharged at least three attorneys, including one on the day of trial, had
announced ready for trial, and sought the continuance at the commencement of the
trial. He insisted that he did not want Jarriel to represent him in spite of the trial
court’s warnings of the dangers of proceeding without counsel. Under these
circumstances,
the trial court was authorized to conclude that [Lewis] was attempting
to use the discharge . . . of . . . counsel as a dilatory tactic, which was the
functional equivalent of a knowing and voluntary waiver of . . . counsel.
In such instances, the trial court may [deny a continuance and] proceed
to trial with the defendant representing himself.
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Hobson v. State, 266 Ga. 638 (2) (469 SE2d 188) (1996) (citation and punctuation
omitted). See also Bryant v. State, 268 Ga. 616, 617-618 (2) (491 SE2d 320) (1997)
(court did not err by denying defendant’s motion for continuance after he sought to
discharge counsel during jury selection and elected to proceed pro se); Cain v. State,
310 Ga. App. 442, 444 (1) (714 SE2d 65) (2011) (trial court did not err in denying
continuance and requiring defendant to proceed pro se); Massalene v. State, 224 Ga.
App. 321, 322 (1) (480 SE2d 616) (1997) (trial court did not err in denying motion
for continuance when defendant discharged attorney on day of trial and elected to
proceed pro se); Bacon v. State, 146 Ga. App. 468 (246 SE2d 475) (1978) (if the fault
in nonrepresentation lies with the defendant firing an attorney at the last minute, he
will not be entitled to a continuance to prepare for trial).
Lewis argues that the trial court should have granted a continuance so that he
could review evidence handed to him the day of trial. This evidence consisted of the
medical records of the victim, Lewis’s mother, who had died by the time of trial. But
the trial court offered Lewis time to review the victim’s medical records, which the
discharged attorney, Jarriel, had handed to him at the beginning of the proceeding.
Lewis does not explain how more time would have helped him.
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Lewis argues that the trial court should have granted his motion for
continuance so that he could obtain witnesses. He concedes, however, that he did not
make the required proffer of what those witnesses would testify about or who they
were. See Knox v. State, 227 Ga. App. 447, 448 (489 SE2d 582) (1997). The fact that
he proceeded pro se does not excuse his failure to make the required showing. A party
“is not held to a different or more lenient standard . . . merely because he elected to
proceed pro se. One who knowingly elects to represent himself assumes full
responsibility for complying with the substantive and procedural requirements of the
law.” Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002) (citation and
punctuation omitted).
To the extent that Lewis argues that he was entitled to a continuance because
he was mentally ill, he points to no record evidence supporting the assertion that he
was mentally ill. In fact, the trial court found that Lewis was competent to stand trial
and understood the charges against him.
Lewis has not demonstrated that the trial court erred in denying his request for
a continuance. Accordingly, his convictions are affirmed.
Judgment affirmed. Andrews, P. J., and Ray, J., concur.
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