Alford v. The State

• Decision Date: 19 April 2010
• Docket Number: No. S10A0062.,S10A0062.
• Citation: 695 S.E.2d 1,287 Ga. 105
• Parties: ALFORDv.The STATE et al.
• Court: Georgia Supreme Court

287 Ga. 105

695 S.E.2d 1

ALFORDv.The STATE et al.

No. S10A0062.

Supreme Court of Georgia.

April 19, 2010.

Antonio Alford, pro se.

Julia F. Slater, Dist. Atty., Wesley A. Lambertus, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for appellees.

Sarah L. Gerwig-Moore, Leigh S. Schrope, Amanda N. Heath, Wesley C. Turner, amicus curiae.

THOMPSON, Justice.

Following a bench trial on February 13, 1995, Antonio Alford was convicted of DUI and for being a minor in possession of alcohol. Alford was sentenced to 12 months probation. He was not represented by counsel.

Alford filed a habeas corpus petition challenging his DUI and possession convictions on the ground that he was entitled to, and denied, counsel. The habeas court determined that Alford was not entitled to legal representation because he was sentenced only to probation and no term of imprisonment.

We granted a certificate of probable cause to determine whether Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) applies retroactively to Alford's convictions because Alford was unrepresented by counsel. We hold that it does.

In Shelton, the United States Supreme Court held that the Sixth Amendment does not permit activation of a suspended sentence “[w]here the State provides no counsel to an indigent defendant.” Id. at 662, 122 S.Ct. 1764. The Supreme Court reached that conclusion by reasoning that a defendant with a suspended sentence who violates probation “is incarcerated not for the probation violation, but for the underlying offense.” Id. An uncounseled conviction would thus result in imprisonment and “ ‘in the actual deprivation of a person's liberty.’ ” Id. (quoting Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)).

This Court recognized Shelton's application in Barnes v. State, 275 Ga. 499, 570 S.E.2d 277 (2002). In Barnes, the defendant appeared before a traffic court, without counsel, to answer a charge of driving with a revoked license. Id. Proceeding to a bench trial, the defendant appeared pro se, was found guilty, and sentenced to a one-year probated term of imprisonment and a fine. Id. at 500, 570 S.E.2d 277. Adopting Shelton, we held “that absent a knowing and intelligent waiver, no indigent person may be imprisoned for any offense, or sentenced to a probated or suspended prison term, unless he was represented by counsel at his trial.” Id. at 502, 570 S.E.2d 277.

To make a knowing and intelligent waiver, “ ‘the trial court must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will establish that he knows what he is doing.’ ” State v. Evans, 285 Ga. 67, 68, 673 S.E.2d 243 (2009) (quoting Lamar v. State, 278 Ga. 150, 152, 598 S.E.2d 488 (2004)). “The State may carry this burden by showing a valid waiver through either a trial transcript or other extrinsic evidence.” Godlewski v. State, 256 Ga.App. 35, 36, 567 S.E.2d 704 (2002).

Pointing out that the record in this case offers no explanation as to why defendant lacked counsel, the State argues that Alford has not demonstrated he was denied the right to counsel. The State, however, erroneously places the burden on Alford. Jones v. Wharton, 253 Ga. 82, 316 S.E.2d 749 (1984). It is the State which must show the defendant made a knowing and intelligent waiver of his right to counsel. Barnes v. State, 261 Ga.App. 112, 113, 581 S.E.2d 727 (2003). Review of the record shows no voluntary or intelligent waiver of Alford's right to counsel, nor that he was apprised of the dangers of proceeding without counsel.

We now decide the question posed by this case: whether the rule set forth in Shelton and adopted by this Court in Barnes applies retroactively. In Howard v. United States, 374 F.3d 1068, 1077 (11th Cir.2004), the Eleventh Circuit held that the right recognized in Shelton is retroactively applicable. We find the reasoning utilized by the Eleventh Circuit persuasive. See also Talley v. South Carolina, 371 S.C. 535, 544, 640 S.E.2d 878 (2007) (giving retroactive application to the rule put forth in Shelton ).

Like Howard, this case turns on whether Shelton applies retroactively because it establishes a “new rule” under Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Howard, 374 F.3d at 1073.

According to the Supreme Court in Teague, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” (Emphasis omitted.) Id. at 301, 109 S.Ct. 1060. We agree with the Eleventh Circuit that Shelton established a new rule even though the Court relied on two past precedents in reaching its conclusion. The Court in Shelton said that its decisions in Argersinger, supra at 407 U.S. 25, 92 S.Ct. 2006, and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) “controlled” its judgment in the case. Shelton, 535 U.S. at 657, 122 S.Ct. 1764. In Argersinger, the Court held that defense counsel must be appointed in any criminal prosecution that actually leads to imprisonment. 407 U.S. at 33, 92 S.Ct. 2006. In Scott, the Supreme Court “drew the line at ‘actual imprisonment,’ holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.” Shelton, 535 U.S. at 657, 122 S.Ct. 1764 (quoting Scott, 440 U.S. at 373-374, 99 S.Ct. 1158).

Distinguishing the two “controlling” precedents from the facts in Shelton itself, the Eleventh Circuit has persuasively shown that the rule established in Shelton was not dictated by existing precedent. Howard, 374 F.3d at 1074. Before Shelton, a defendant's right to counsel was required only if a sentence was imposed that actually led to imprisonment. However, the rule in Shelton clearly expands this right by requiring appointed counsel if the sentence “ may ‘end up in the actual deprivation of a person's liberty.’ ” (Emphasis supplied.) 535 U.S. at 658, 122 S.Ct. 1764.

While a new rule will apply retroactively on direct review, on collateral review, it will only apply retroactively in one of two situations. Teague, supra at 307, 109 S.Ct. 1060.

First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that are implicit in the concept of ordered liberty.

(Citations and punctuation omitted.) Id. (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)).

The second exception is the only one at issue here. For a new rule to fall within this exception, it must meet a two-pronged test: (1) it must relate to the accuracy of the conviction; and (2) it must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” (Punctuation omitted.) Whorton v. Bockting, 549 U.S. 406, 418, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (on remand, habeas denial affirmed on other grounds). The Supreme Court has made it clear that the right to counsel in all stages of the adjudication process is imperative to the fact-finding process. McConnell v. Rhay, 393 U.S. 2, 3, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Representation by counsel is thus “inevitably tied to the accuracy of a conviction.” Howard, 374 F.3d at 1078 (citing McConnell, 393 U.S. at 3, 89 S.Ct. 32). Moreover, as the Eleventh Circuit observed, the right to counsel is a bedrock procedural right and the rule in Shelton altered our understanding of that right by applying it to defendants who receive only a suspended sentence or probation. Howard, 374 F.3d at 1078 (citing Nutter v. White, 39 F.3d 1154, 1157 (11th Cir.1994)). Finally, we note that the right to counsel in criminal proceedings has repeatedly been made retroactive. See, e.g. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) (felony convictions); Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) (the right to counsel in plea hearings is retroactive, “since the ‘denial of the right must almost invariably deny a fair trial’ ”); see also McConnell, 393 U.S. at 3, 89 S.Ct. 32 (“The right to counsel ... relates to ‘the very integrity of the fact-finding process' ”).

Since the new rule espoused by Shelton relates to the accuracy of a decision and alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding, the rule is to be applied retroactively. It follows that the habeas court erred in denying Alford's petition.

Judgment reversed.

All the Justices concur, except CARLEY, P.J., who dissents.

CARLEY, Presiding Justice, dissenting.

I disagree with the majority's conclusion that Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) should be applied retroactively to reverse the judgment of the habeas court in this case. Therefore, I respectfully dissent.

The general rule is that a habeas court applies the law in effect at the time of the judgment of conviction. As explained by Justice Harlan,

“Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review....” [Cit.] ... [I]t is “sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of (habeas) cases on the basis of intervening changes in constitutional interpretation.” [Cit.] ... “[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, ... the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took

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