Pirkle v. State , 221 Ga. App. 657 ( 1996 )

472 S.E.2d 478 (1996) 221 Ga. App. 657

PIRKLE
v.
The STATE.

No. A96A0626.

Court of Appeals of Georgia.

June 5, 1996.

Banks & Stubbs, Rafe Banks, III, Cumming, for appellant.

Daniel T. Stringer, Solicitor, Leslie C. Abernathy, Asst. Solicitor, for appellee.

BEASLEY, Chief Judge.

Pirkle was charged with four counts of pointing a gun at another (OCGA § 16-11-102). Proceeding pro se, he was tried and convicted in an unreported bench trial. He then retained counsel and moved for a new trial, alleging he had not made a knowing and intelligent waiver of his right to jury trial. Ga. Const.1983, Art. I, Sec. I, Par. XI; OCGA § 9-11-38. He appeals the denial of that motion.

"``Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854 (1930). However, defendant's consent need not be in a particular, ritualistic form ... Since form is unimportant, the only real issue is whether (appellant) intelligently agreed to a trial without jury....' [Cits.]" Johnson v. State, 157 Ga.App. 155(1), 276 S.E.2d 667 (1981). When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant "personally, knowingly, voluntarily, and intelligently waived his right to a jury trial. [Cit.]" Jones v. State, 212 Ga.App. 676, 679(2), 442 S.E.2d 908 (1994); see Sims v. State, 167 Ga.App. 479(1), 306 S.E.2d 732 (1983). The State may prove this "by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary." (Citations and punctuation omitted.) Bowens v. State, 194 Ga.App. 391, 392(2), 390 S.E.2d 634 (1990).

Pirkle signed a form entitled "Waiver of Formal Arraignment/Acknowledgement of Court Date, Accusation(s) for Pointing a Gun at Another × 4 cnts." It included the printed statement: "The Defendant waives Formal Arraignment, list of witnesses and Jury Trial and pleads Not Guilty." In Payne v. State, 217 Ga.App. 386, 460 S.E.2d 297 (1995), the accused had signed a form which read, "``Comes now defendant in the within matter and acknowledges receipt of copy of accusation and list of witnesses, waives benefit of counsel, formal arraignment, trial by jury and pleads (Not) guilty.'" Id. at 387, 460 S.E.2d 297. We held that "This form, standing alone fails to establish that Payne knowingly or intelligently waived rights guaranteed him by the U.S. and Georgia Constitutions." Id.

The form used in this case is not materially distinguishable. The distinctions do not rescue Pirkle's form from a judgment of deficiency. Neither the capitalization of the words nor the clerk's administrative notation of "n-jury" beside the trial date assure that defendant's waiver of his constitutional right was intelligent, although the inclusion of the words in the arraignment form are some indication that Pirkle was superficially aware he was waiving a trial by jury. This is not conclusive of that fact, as it does not state that he understood the consequence, i.e., that he was surrendering a significant constitutional right and opting for a trial by the judge himself. Nor does it establish that he was making "a conscious choice," in the words of Jones, supra, to waive trial by jury. The inadequacy of the wording is increased by its comparison with the primary focus of the form, the right to counsel, which is quite fully explained. The form, like that in Payne and Keegan v. State, 221 Ga.App. 487, 472 S.E.2d 107 (1996), constitutes insufficient evidence.

The motion for new trial should have been granted, as in Capelli v. State, 203 Ga.App. 79(2), 416 S.E.2d 136 (1992). Although there was not even a written form in that case, as there is here, that variant does not avoid the conclusion because, according to Payne, the form does not meet the State's burden of showing "``the waiver was made both intelligently and knowingly.'" Capelli supra at 79, 416 S.E.2d 136.

The remedy in this case, as in Capelli, is not to remand for inquiry, as was done in Payne and in Lawal v. State, 201 Ga.App. 797, 412 S.E.2d 864 (1991). In those two appeals the State was given an opportunity to fill a silent record. In Pirkle's case, the State has already had that chance, at the hearing on the motion, and failed to supply the evidence which was lacking because the form merely contained a bare statement. Compare Evans v. State, 216 Ga.App. 21, 24(3), 453 S.E.2d 100 (1995) (affidavit of attorney showing deliberate, intelligent waiver); Sims, supra at 480(1), 306 S.E.2d 732 (affidavit of attorney showing deliberate, intelligent waiver). See also Stephens v. State, 176 Ga.App. 187(1), 335 S.E.2d 473 (1985).

Judgment reversed.

BIRDSONG, P.J., and BLACKBURN, J., concur.