Alphonso Wooten v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 06, 2015
The Court of Appeals hereby passes the following order:
A15A1269. WOOTEN v. THE STATE.
Alphonso Wooten filed a pro se notice of appeal and brief in this case, alleging
that he is indigent and has been forced to proceed pro se due to the denial of the
appointment of appellate counsel. While the state claims that Wooten was not denied
appellate counsel, it also acknowledges that it is unclear from the record why he is
proceeding pro se in this direct appeal from the denial of his motion for a new trial.
Given the lack of clarity in the record, we remand the case to the trial court for a
determination of whether Wooten has waived his right to appellate counsel or
whether appellate counsel should be appointed.
The record shows that Wooten was appointed trial counsel and proceeded to
a jury trial on March 2, 2010. But after the trial had begun, Wooten requested, and
was allowed, to represent himself for the remainder of the trial. The jury found him
guilty of armed robbery and aggravated assault. The court merged the offenses for
sentencing, and entered a judgment of conviction and life sentence for armed robbery.
Wooten filed a pro se motion for new trial. He subsequently requested appellate
counsel. On June 27, 2011, the trial court contacted Robert Persse, chief public
defender of the Ogeechee Judicial Circuit, and asked him to assign appellate counsel
to represent Wooten. Persse subsequently filed a motion for new trial on Wooten’s
behalf. Over a year late, on January 4, 2013, another attorney, Melissa Lawrence, of
the Atlanta Judicial Circuit Public Defender’s Office, filed a notice of appearance as
counsel for Wooten. Lawrence filed a motion and amended motion for new trial, and
represented Wooten at two hearings held in March 2013. Nearly two years later, on
January 27, 2015, the trial court entered its order denying Wooten’s motion for new
trial. Wooten timely filed his pro se notice of appeal from that order.
“[I]t is beyond question that an indigent has the right to appointed counsel to
assist him on direct appeal. [A]nd, an individual desiring an appeal need not, once a
responsible state authority knows of the desire to appeal and knows of the status of
indigency, specifically request appointment of appellate counsel.” Trauth v. State,
295 Ga. 874, 875-876 (1) (763 SE2d 854) (2014) (citations omitted). In this case, it
is unclear from the record why neither Lawrence nor Persse, attorneys who made
post-conviction appearances on Wooten’s behalf, is representing him on appeal. The
record does not reveal if they withdrew from the case or if Wooten affirmatively
waived representation by them or any other appellate counsel. See Calmes v. State,
312 Ga. App. 769, 772-774 (3) (719 SE2d 516) (2011). Accordingly, the case is
hereby remanded to the trial court for a timely determination of these issues, after
which Wooten may again exercise his appellate rights.
Court of Appeals of the State of Georgia
10/06/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.