LYNCH v. the STATE. ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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
September 6, 2018
In the Court of Appeals of Georgia
A18A1013. LYNCH v. THE STATE.
RICKMAN, Judge.
Following a hearing during which Marvin Rosvet Lynch unsuccessfully
attempted to fire his retained counsel, he entered a guilty plea to three counts of
homicide by vehicle in the first degree, one count of hit and run, and one count of
driving under the influence of alcohol to the extent that it was less safe for him to
drive (DUI less safe) on the advice of the same counsel that he wished to fire.1 Lynch
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The grand jury indicted Lynch for six counts of homicide by vehicle in the
first degree, two counts of hit and run, one count of driving under the influence of
alcohol with an unlawful blood concentration (DUI per se) and driving under the
influence (less safe). As part of the negotiated guilty plea agreement, the State agreed
to nolle pros three counts of homicide by vehicle in the first degree, one count of hit
and run, and the count of driving under the influence (per se). Lynch’s guilty plea to
driving under the influence (less safe) merged with the homicide by vehicle counts
for the purpose of sentencing.
filed a timely motion to withdraw his guilty plea, which the trial court denied. On
appeal, Lynch contends that the trial court violated his Sixth Amendment right to
counsel when it denied his request to fire his counsel and thus erred when it denied
his motion to withdraw his guilty plea. For the following reasons, we reverse.
“The standard for reviewing a denial of a motion to withdraw a guilty plea is
well established. After sentencing, the decision on a motion to withdraw a guilty plea
is within the trial court’s discretion and withdrawal of the plea is allowed only when
necessary to correct a manifest injustice.” (Citation and punctuation omitted.) Gay v.
State, 342 Ga. App. 242, 243 (803 SE2d 113) (2017).
Lynch was indicted on June 2, 2016, and his trial counsel filed an entry of
appearance eight days later. Lynch’s case was placed on a trial calendar and a pre-
trial hearing was held approximately six months after his indictment was filed.
Lynch’s trial counsel began the pre-trial hearing by stating, “I think [Lynch]
would like to address the court as far as replacing me, and once you make the
decision either way, then if you decide to keep me in it, I will put on the record that
I don’t want to be replaced.” Lynch then addressed the trial court and stated that he
“want[ed] to fire [trial counsel] because of the lack of communication [they] have.”
Lynch went on to explain that he had concerns with the number of times that his trial
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counsel had met with him in jail and that, ultimately, “[trial counsel] doesn’t seem to
want to take this case as far as a defensive matter.”
The trial court stated “[i]f the court feels that [trial counsel] is providing
adequate representation for you and this case is on a trial calendar, then you’re going
to have to have [trial counsel] represent you.” Inexplicably, in the open courtroom
with the State present, trial counsel then began a long narration which included,
among other things, all of the evidence against Lynch, the opinions of experts he had
consulted with, speculation as to how high Lynch’s blood alcohol level was at the
time of the accident, as well as his opinion that the search warrant used to obtain
Lynch’s blood was sound, that the case against Lynch was “damning,” and that Lynch
was “not going to win.” Trial counsel also cited to a previous DUI conviction that the
State would be able to introduce, Lynch’s lack of defense to the charges,
conversations he had had with Lynch, and his opinion that while Lynch did not want
to accept the State’s plea offer, the situation “was not going to get better if we try it.”
Trial counsel concluded by explaining that he recommended that Lynch enter a
negotiated plea, and that he “would prefer not to be taken off the case because I know
at some point, if we lose or if he does a plea, they’re going to file a complaint, but I’m
doing my job.”
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The trial court asked both parties if they would be prepared to try the case the
following week and then inquired as to the terms of plea offer. The trial court stated,
I am not going to allow [trial counsel] to be removed from the case at
this time. I find that he’s prepared. He’s done adequate and extensive
preparation for trial. And I will say that the recommendation based on
the facts as I understand them in this case where three individuals died,
the State’s recommendation on the negotiated plea is more than
reasonable. We can proceed with a pretrial today. If we don’t, then I
assume the State is not going to extend the recommendation past today
and we can go forward with trial.
Following the announcement that Lynch would be prohibited from firing his
trial counsel, he and his trial counsel had an off-the-record discussion in the
courtroom during which the State recognized the need for Lynch and trial counsel to
speak privately, asked for them to be able to speak somewhere else, and expressed
concern about potentially overhearing a privileged conversation. The trial court
agreed to let Lynch and trial counsel speak somewhere else and then reiterated “[b]ut
let me make myself clear, [trial counsel], I’m not going to pretry this case again. I’m
not going to require the victim’s family members to all come up to court again, so it’s
a plea today or a trial.” The record is unclear as to how long the discussion between
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Lynch and trial counsel lasted but, afterward, trial counsel announced that Lynch had
decided to enter a guilty plea.
At the hearing on the motion to withdraw the guilty plea, trial counsel testified
that he was informed prior to the date of the plea hearing that Lynch wished to fire
him because he “wanted a defense to the case.” Lynch testified, “I never knew that
I [was] at the mercy of the [c]ourt that this lawyer, I have to be stuck with because I
was at a rock and a hard place. . . . I wanted to get rid of him.” He further testified
that, “I was even breaking down in tears there [during the plea] because I didn’t know
how that was possible to go with an attorney that you paid for and somebody could
say that you have to s[t]ick with them.”
In its order denying Lynch’s motion to withdraw his guilty plea, the trial court
explained that “[trial counsel] was prepared for trial, that he had made an adequate
and extensive preparation for trial, and that there was no evidence of ineffective
assistance of counsel on [the date of the plea hearing]. As [Lynch] had not retained
other counsel and there was no legal reason to remove [trial counsel], this Court
moved forward with the pre-trial of the case.” The trial court found that “[Lynch]
made no arrangement for counsel to replace [trial counsel], either by making inquiry
with the Public Defender’s Office or by hiring other counsel. Therefore, he waived
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his ability to have counsel of his choice on [the date of the plea hearing].” Further,
the trial court noted that “[i]t is also clear from the record that the State had a solid
case against [Lynch] to establish the elements of each offense charged beyond a
reasonable doubt if the case were taken to trial.” The trial court concluded, “[a]s
[Lynch] was represented by effective counsel and this [c]ourt did not preclude any
other counsel of his choice from appearing on his behalf, [Lynch’s] right to counsel
was not violated.”
On appeal, Lynch contends that the trial court violated his Sixth Amendment
right to counsel when it denied his request to terminate his counsel and thus erred
when it denied his motion to withdraw his guilty plea. We agree.
“The Constitution of Georgia, Art. I, Sec. I., Par. XIV has been interpreted to
confer upon every criminal defendant the right to be represented by counsel of his
own selection whenever he is able and willing to employ an attorney, and uses
reasonable diligence to obtain his services.” (Citation and punctuation omitted.) Alwi
v. State, 331 Ga. App. 903, 904 (773 SE2d 387) (2015). And “[u]nder the Sixth
Amendment [of the United States Constitution], a defendant who does not require
appointed counsel enjoys both the right to effective assistance of counsel and the
right to choose who will represent him.” (Citation and punctuation omitted.) U. S. v.
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Jimenez-Antunez, 820 F3d 1267, 1270 (III) (11 Cir. 2016). “The right to select
counsel of one’s choice has been regarded as the root meaning of the constitutional
guarantee.” (Citation and punctuation omitted.) Id. “The right to choose counsel is
incomplete if it does not include the right to discharge counsel that one no longer
chooses. A defendant exercises the right to counsel of choice when he moves to
dismiss retained counsel, regardless of the type of counsel he wishes to engage
afterward.” Id. at 1271 (III). “The denial of the right to counsel of choice is structural
error.” Id.
However, “ a defendant’s right to counsel may not be insisted upon in a manner
that will obstruct an orderly procedure in courts of justice, and deprive such courts
of the exercise of their inherent powers to control the same.” (Citation and
punctuation omitted.) Alwi, 331 Ga. App. at 904-905. “[A] trial court must balance
the defendant’s constitutional right to the counsel of his choosing against the need to
maintain the highest standards of professional responsibility, the public’s confidence
in the integrity of the judicial process and the orderly administration of justice.”
(Citation and punctuation omitted.) Id. at 905.
In Alwi v. State, on the morning of the defendant’s scheduled trial, the
defendant informed the trial court that he wished to fire his counsel and requested an
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eight-week continuance. Alwi, 331 Ga. App. at 903. Trial counsel “could not go into
details due to attorney-client privilege,” but informed the court that she and the
defendant were opposed on some issues. Id. The trial court granted the defendant a
two-day continuance, and, when the case was again called for trial, the defendant
informed the trial court that he and his old counsel were still at an “impasse,” but that
he obtained new counsel who requested a two-week continuance. Id. at 903-904. The
trial court engaged in the required balancing test and denied the continuance. “[T]he
trial court informed [the defendant] that he had three options: proceed to trial with his
old counsel, proceed with his new counsel instanter, or represent himself. [The
defendant] opted to proceed with his old counsel.” Id. Recognizing that the trial court
had engaged in the required balancing test, we were unable to conclude that the trial
court’s ruling represented a clear and manifest abuse of discretion. Id. at 904-905.
Here, the trial court did not engage in the necessary balancing test. The
standard the trial court used to determine if Lynch should be allowed to terminate his
retained trial counsel was whether the trial court felt that trial counsel was providing
effective representation. This is the correct inquiry when confronted with a situation
where a defendant wishes to terminate court-appointed counsel, but not when a
defendant wishes to terminate hired counsel. See Durham v. State, 185 Ga. App. 163,
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164 (1) (363 SE2d 607) (1987); compare Alwi, 331 Ga. App. at 905. While it is
unclear from the record the exact date on which Lynch’s case was to be called for
trial, it is undisputed that Lynch made his motion to terminate his counsel at his pre-
trial hearing, and not on the morning of his scheduled trial. However, Lynch still was
given no other option than proceeding to trial with his retained counsel.
Instead of giving Lynch options other than being required to be represented by
an attorney he wanted to fire, the trial court stated, “that the recommendation based
on the facts as I understand them . . . the State’s recommendation on the negotiated
plea is more than reasonable” and then informed trial counsel that Lynch could
choose between a plea that day or trial. The trial court’s understanding of the facts
was probably due to trial counsel’s detailed recitation of the “damning” case against
Lynch, which included arguably privileged information and attorney work product.
While making no comment on the propriety of the trial court’s statement regarding
the plea recommendation, we note that “[t]he trial judge should not participate in plea
discussions.” Uniform Superior Court Rule 33.5 (A). See Winfrey v. State, ___ Ga.
___ (II) (816 SE2d 613) (2018).
The trial court applied the wrong standard when it denied Lynch’s motion to
fire his counsel, failed to engaged in the required balancing test, and gave Lynch no
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alternative to proceeding with retained counsel whom he wished to fire. Under the
circumstances, the trial court violated Lynch’s Sixth Amendment right to counsel of
his choosing and Lynch should have been allowed to withdraw his guilty plea to
correct a manifest injustice. See Gay, 342 Ga. App. at 243 (“test for manifest injustice
will by necessity vary from case to case”). The judgment of the trial court is reversed
and the case is remanded for proceedings consistent with this opinion. See generally
Gay, 342 Ga. App. at 245-246 (holding that a defendant should have been allowed
to withdraw his guilty plea to correct a manifest injustice where the trial court
misstated the range of possible sentence); see also Sanders v. State, 169 Ga. App. 125
(1) (312 SE2d 160) (1983) (allowing a defendant to withdraw guilty plea where trial
court failed to inform him that he intended to reject the plea agreement and, thus, he
could withdraw his guilty plea prior to sentencing as a matter of right).
Judgment reversed and case remanded. McFadden, P. J., and Ray, J., concur.
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