Butler v. State

Beasley, Judge.

Butler appeals the denial of his motion for new trial after his conviction of child molestation, OCGA § 16-6-4.

He was a shoe salesman working on commission when he was arrested on July 12, 1987. He was unable to make bond for 33 days, losing his job as a result. On August 6, 1987, he applied for appointed counsel and the Cobb circuit defender’s office determined that he met the eligibility standards and appointed an attorney for him. Defendant never met or talked with this attorney.

When he was released on bond, defendant returned to work, but only part-time work was available. While defendant was incarcerated, he was evicted from his residence and all his belongings placed on the curb, from which most disappeared. He therefore had to expend most of his part-time income for essentials.

Because he now had income, the circuit defender’s office determined he no longer met the eligibility standards for appointed counsel, and the attorney assigned was removed by court order of October 27, 1987.

After he was denied an attorney, he went to an attorney listed on the defender’s qualified list. He was told a $5,000 retainer was necessary, which he was unable to pay.

At the motions hearing on December 10, 1987, defendant appeared pro se and was asked if he had an attorney. He responded that he was unable to afford one but had gotten a job and could “maybe” afford one later.

At the calendar call on January 18, 1988, defendant advised the court that he had been told he was not eligible for appointed counsel and that he had tried to retain counsel but was financially unable to do so. The court suggested he speak with the prosecutor, after which the case was taken off the calendar to give him an opportunity to get an attorney. On March 1, 1988, defendant again applied for appointed counsel, but was found ineligible by the defender’s office. No inquiry was made of him regarding his efforts to retain an attorney and his inability to pay the required retainer.

Defendant appeared at the April calendar call, again without an attorney, although’ this was not addressed by either defendant or the court.

At the trial of the case on November 1, 1988, defendant appeared without counsel and the issue was not further addressed. He conducted the voir dire himself, asking only minimal questions of a few potential jurors.

After the jury was empaneled and excused for lunch, defendant returned to court with an attorney who advised the court he represented defendant. He had been observing trials and had watched defendant conduct voir dire. At the lunch break, he approached defendant and told him he needed an attorney and he would represent defendant if he gave him a retainer. Defendant gave him a quarter as a retainer, which he then borrowed to make a phone call. The attorney, a member of the bar since 1981, had never tried a criminal case or assisted in trying one. His only civil experience was representing himself when he sued the bar examiners, contending the exam was unfair. Although he had applied to be placed on the circuit defender’s list of qualified attorneys, he had not been accepted.

After conviction, trial counsel withdrew on December 30, 1988. On January 20, 1989, an order was entered adjudging defendant an indigent and counsel representing him on appeal was appointed.

New counsel filed a motion for new trial, asserting the general grounds, Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). The motion was amended to include newly discovered evidence, failure to appoint counsel in violation of OCGA § 17-12-4 and USCR 29, and “ineffective assistance of counsel.”

1. (a) Defendant first contends the trial court erroneously failed to appoint counsel, although he was indigent and had requested one, thereby depriving him of effective assistance of counsel in violation of Ga. Const. 1983, Art. I, Sec. I, Par. XIV, OCGA § 17-12-4, and implementing rules.

During this time, Cobb County provided a local indigent defense program, as contemplated by OCGA Title 17, Chapter 12, Article 1 and implemented by USCR 29.1 et seq.

USCR 29.4 provides that the court or its designee shall determine the financial eligibility of an accused for appointed counsel and that “[t]he court may appoint counsel in cases where the defendant does not qualify and cannot be provided counsel [as provided in the rules.]” See OCGA §§ 17-12-2 (5) and 17-12-10 (a) regarding indigency vel non.

USCR 29.5 further provides that “[t]he court may appoint counsel for representation for any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.” The Cobb defender’s guidelines repeat this provision, but specify that three attorneys must decline representation.¹

Defendant was not advised there was any possibility he could obtain appointed counsel even if he did not meet the financial baseline, nor were the “special circumstances” inquired into as of the time of trial. There was a failure to comply with OCGA § 17-12-4 and implementing rules which effectively denied defendant counsel.

These failures resulted in the volunteering of trial counsel, who then advised the court he needed a continuance in order to prepare. Art. I, Sec. I, Par. XIV provides that “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel.”

“ ‘[Art. I, Sec. I, Par. XIV] . . . guarantees such person who is unable to employ counsel the right to have counsel appointed for him by the court. . . .’ That benefit of counsel is not an empty right has been emphasized time and time again. . . . That reasonable time is necessary for the right to be truly a substantial one has been recognized in many cases. ‘The constitutional guaranty amounts to nothing, unless the counsel selected by the accused or appointed by the court are [sic] given a reasonable time to ascertain what is the character of the case that the accused is called upon to defend.’ Nick v. State, 128 Ga. 573 (58 SE 48). . . . [Cits.] While the time for preparation of such a case is generally a matter for the discretion of the trial judge, reviewing courts, when called upon, have to review the exercise of that discretion.” Fair v. Balkcom, 216 Ga. 721, 725-726 (119 SE2d 691) (1961).

Denial of the requested continuance after an attorney volunteered to assume the representation was denial of counsel. Smith v. Greek, 226 Ga. 312, 317 (175 SE2d 1) (1970); Fair, supra; Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987) (physical precedent); see Walker v. State, 194 Ga. 727, 733 (22 SE2d 462) (1942).

(b) There is another impediment to the validity of the process used here. Having repeatedly requested appointed counsel, defendant never waived his right to one.

Until representation was afforded, defendant never specified whether he was relying on the federal Sixth Amendment right to counsel or that provided by Art. I, Sec. I, Par. XIV of the Georgia Constitution.

Under either, however, the standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the “ ‘constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ Johnson [v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE2d 1461) (1937)].” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). See Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988); Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985).

“(A) judge must investigate as long and as thoroughly as the circumstances of the case before him demand. ... To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. . . . [Cits.]” Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67) (1982). See Moss v. State, 196 Ga. App. 81 (395 SE2d 363) (1990). Here, the record reflects only defendant’s request for an attorney or silence. There was not an adequate waiver. Stapp v. State, 249 Ga. 289 (1) (290 SE2d 439) (1982); Strozier v. State, 187 Ga. App. 16, 17 (1) (369 SE2d 504) (1988).

The judgment must be reversed, since a review of the record shows that counsel did not render “reasonably effective assistance.” Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974). See Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985).

2. Consideration of the remaining enumerations is not necessary in light of the holding in Division 1.

Judgment reversed.

Birdsong and Cooper, JJ., concur. Carley, C. J., and Sognier, J., concur in the judgment only. Been, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

1 It is open to question whether the court’s designee may specify how many members must refuse representation before this clause is activated, since the rule says “members,” indicating only a number more than one.