Banks v. the State , 332 Ga. App. 259 ( 2015 )


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  •                                SECOND DIVISION
    ANDREWS, P. J.,
    MILLER and BRANCH, 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/
    April 21, 2015
    In the Court of Appeals of Georgia
    A15A0084. BANKS v. THE STATE.
    ANDREWS, Presiding Judge.
    Following a bench trial at which Nakayla Banks proceeded pro se, the Probate
    Court of Newton County found Banks guilty of one count of possession of marijuana
    of less than an ounce (OCGA § 16-13-2 (b)) and not guilty of one count of possession
    of alcohol by a minor (OCGA § 3-3-23 (a)). Banks appealed to the Superior Court of
    Newton County, which affirmed the probate court’s judgment. In Banks’ appeal to
    this Court, she argues that the evidence was insufficient to support her conviction and
    that she did not knowingly and intelligently waive her rights to counsel and to a trial
    by jury. Because we conclude that the record is devoid of a knowing and intelligent
    waiver of Banks’ right to counsel, we reverse and remand.
    1. Under Georgia law, “whether a charge is a felony or a misdemeanor, an
    accused facing a term of imprisonment is constitutionally guaranteed the right to
    counsel and must waive that right.” Cook v. State, 
    297 Ga. App. 701
     (678 SE2d 160)
    (2009) (citing Jones v. Wharton, 
    253 Ga. 82
    , 83 (316 SE2d 749) (1984)). See also
    Barnes v. State, 
    261 Ga. App. 112
    , 113 (581 SE2d 727) (2003). Such a waiver of
    counsel
    is valid only if it is made with an understanding of (1) the nature of the
    charges, (2) any statutory lesser included offenses, (3) the range of
    allowable punishments for the charges, (4) possible defenses to the
    charges, (5) circumstances in mitigation thereof, and (6) all other facts
    essential to a broad understanding of the matter.
    
    Id.
     (citing Manning v. State, 
    260 Ga. App. 171
     (581 SE2d 290) (2003)). “When the
    record is silent, waiver is never presumed, and the burden is on the State to present
    evidence of a valid waiver.” 
    Id.
     (citing Helmer v. State, 
    256 Ga. App. 717
    , 718 (569
    SE2d 606) (2002)). The State may carry its burden “by showing a valid waiver
    through either a trial transcript or other extrinsic evidence[,]” including an
    appropriate pretrial waiver form. 
    Id.
     at 702 (citing Godlewski v. State, 
    256 Ga. App. 35
    , 36 (567 SE2d 704) (2002)). See also Tucci v. State, 
    255 Ga. App. 474
    , 476 (1)
    (565 SE2d 831) (2002). However,
    2
    [i]n order for the State to use a pretrial waiver form to show that a
    defendant has intelligently elected to represent himself [at trial] after
    being advised of his right to counsel and the “dangers” of waiver, the
    form should outline those pertinent dangers: such as (1) the possibility
    of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic
    decisions with regard to voir dire and the striking of jurors must be made
    by defendant; (4) strategic decisions as to the calling of witnesses and/or
    the right to testify must be made by defendant; and (5) issues must be
    properly preserved and transcribed in order to raise them on appeal. In
    other words, a proper waiver form should contain the warnings,
    themselves, not just conclusions.
    Tucci, 255 Ga. App. at 476-477. See also Barnes, 261 Ga. App. at 114.
    In this case, as now conceded by the State, the record before us does not
    support a knowing and intelligent waiver of Banks’ right to counsel. First, the form
    Banks executed contained only conclusory statements concerning her rights rather
    than an explanation of the dangers of proceeding to trial pro se. See Barnes, 261 Ga.
    App. at 114; Tucci, 255 Ga. App. at 476-477. Likewise, the State elicited no
    testimony during Banks’ hearing on her appeal from probate court to demonstrate a
    knowing and intelligent waiver, relying instead upon Banks’ waiver form. Finally,
    although the parties included a purported audio recording of Banks’ trial proceeding
    3
    in probate court,1 no transcript has been supplied.2 As a result, there is no evidence,
    extrinsic or otherwise, that Banks was “adequately informed of the nature of the
    charges against her, the possible punishments she faced, the dangers of proceeding
    pro se, and other circumstances that might affect her ability to adequately represent
    herself.” Cook, 297 Ga. App. at 702.
    Accordingly, we reverse and remand Banks’ case for a new trial. Banks “may
    choose to be represented by counsel or to waive her right to counsel and defend
    herself - after being made aware of the dangers of proceeding without counsel.” Cook,
    297 Ga. App. at 703. See also Barnes, 261 Ga. App. at 114.
    2. In view of our holding in Division 1 supra, we need not address the
    remainder of Banks’ enumerations of error.
    Judgment reversed and case remanded with direction. Miller and Branch, JJ.
    concur.
    1
    In fact, the compact disc submitted by the parties contained no file which
    could be opened or examined by the Court.
    2
    Similarly, Banks’ arraignment was not recorded.
    4
    

Document Info

Docket Number: A15A0084

Citation Numbers: 332 Ga. App. 259, 772 S.E.2d 57

Judges: Andrews, Miller, Branch

Filed Date: 5/5/2015

Precedential Status: Precedential

Modified Date: 11/8/2024