Manning v. State , 260 Ga. App. 171 ( 2003 )

Ruffin, Presiding Judge,

concurring and concurring specially.

I concur with the result reached by the majority. However, I am compelled to write separately to address the mixed messages being sent to the bench and bar regarding the method for áscertaining whether a criminal defendant’s waiver of his right to counsel was both knowing and voluntary.

As pointed out by the majority, there are factors that should be explained to a criminal defendant to ensure that he appreciates the risks involved in proceeding pro se: (1) the nature of the charges; (2) statutory lesser offenses; (3) the range of punishment; (4) possible defenses; (5) mitigating circumstances; and (6) any other essential factors.² After setting forth these factors that must be addressed, the majority goes on to state that a trial court does not need to review each factor. I find these positions inconsistent.

The majority cites Jones v. State,³ a Supreme Court case, for the proposition that factors for waiver need not be applied mechanically. While we are bound by decisions of the Supreme Court, I believe that requiring, as a minimum, that the trial court address each factor would benefit both bench and bar. As with a defendant’s waiver of his right to trial, waiver of counsel should require a careful inquiry by the court.⁴ And the best way to ensure that a defendant fully appreciates the right he has chosen to relinquish and that trial judges fully understand their duty in this regard, is to address each factor, individually, on the record. Indeed, had the appellate courts sent the proper message to the trial courts that such inquiry is mandated, those courts likely could avoid the time and expense of new trials.

Decided March 11, 2003. Christopher G. Paul, for. appellant. T Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

I am authorized to state that Judge Barnes joins in this special concurrence.

2 See Middleton v. State, 254 Ga. App. 648 (1) (563 SE2d 543) (2002).

3 272 Ga. 884, 885-886 (2) (536 SE2d 511) (2000).

4 See Nichols v. State, 253 Ga. App. 512-514 (1) (559 SE2d 538) (2002) (waiver of jury trial affirmed on appeal where record from plea hearing revealed a careful inquiry addressing fully the implication of such waiver).