Allen v. Daker

• Decision Date: 17 May 2021
• Docket Number: S21A0091, S21X0092
• Citation: 311 Ga. 485,858 S.E.2d 731
• Court: Georgia Supreme Court
• Parties: ALLEN, Warden v. DAKER. Daker v. Allen, Warden.

311 Ga. 485

858 S.E.2d 731

ALLEN, Warden

v.DAKER.

Daker

v.Allen, Warden.

S21A0091, S21X0092

Supreme Court of Georgia.

Decided: May 17, 2021

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellant in S21A0091.

Rodney Samuel Zell, Zell & Zell, P.C., 1111 Bull Street, Savannah, Georgia 31401, for Appellee in S21A0091.

Rodney Samuel Zell, Zell & Zell, P.C., 1111 Bull Street, Savannah, Georgia 31401, for Appellant in S21X0092.

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellee in S21X0092.

Nahmias, Presiding Justice.

At a jury trial in 2012, Waseem Daker was found guilty of malice murder and other crimes. Daker had hired or was appointed four attorneys, all of whom were allowed to withdraw before or near the beginning of the trial; he ultimately elected to expressly waive his right to counsel so that he could represent himself (commonly referred to as proceeding "pro se") during the trial. After Daker was convicted, however, he repeatedly asked for appellate counsel to be appointed to represent him, but those requests were denied, so he had to continue to represent himself. His pro se motion for new trial was denied, and his pro se direct appeal resulted in his convictions being affirmed.

In 2017, Daker filed a petition for habeas corpus asserting 438 grounds for relief, all of which the habeas court denied. In his subsequent application to this Court for a certificate of probable cause to appeal, Daker specifically claimed only that the trial court erroneously denied his constitutional right to appellate counsel and that his requests for a determination of his indigency status for purposes of having counsel appointed were improperly delegated to and erroneously denied by the circuit public defender's office. In 2019, this Court issued an order granting Daker's application, vacating the habeas court's order with regard to the two claims that Daker had raised in his application, and remanding the case with direction to the habeas court to identify which of his 438 grounds specifically implicate those claims, consider those grounds based on the evidence already presented, and then issue thorough findings of fact and conclusions of law as to those grounds.

On April 29, 2020, the habeas court entered a new final order, in which it incorporated verbatim from its original order the findings of fact and conclusions of law on Daker's 438 grounds, all of which the court summarily concluded were "without merit." After specifically analyzing the applicable law and the record with regard to the two claims that Daker had raised in his application, however, the habeas court concluded that "[t]he record does not show that [Daker] voluntarily waived the right to counsel on appeal as required" and that, in ruling that Daker was not indigent for purposes of his post-conviction proceedings, the trial court "relied on a previous determination of indigency from over a year earlier." Despite these specific conclusions, the habeas court also said that it must remand the case to the trial court to determine if Daker was entitled to appellate counsel – and then the habeas court ended the order by saying that the entire habeas petition was denied.

Warden Marty Allen appeals the habeas court's order, arguing that the court erred in remanding the case to the trial court and that this Court should remand the case to the habeas court to determine if Daker was entitled to appellate counsel. In a cross-appeal, Daker argues that the habeas court erred by not granting him a new direct appeal based on the improper denial of his constitutional right to appellate counsel; he asks this Court to decide that claim without a remand to the habeas court.

As we explain below, regardless of whether Daker was indigent at the time of his motion for new trial proceeding and direct appeal, the habeas court specifically and correctly concluded based on the record that Daker did not validly waive his right to appellate counsel. Accordingly, we affirm the habeas court's order to the extent that it is consistent with that conclusion, and we reverse the order to the extent that it summarily and inconsistently says that Daker's right-to-counsel claim is meritless or needs to be remanded to the trial court and purports to deny the habeas petition as a whole. We remand the case to the habeas court with direction to grant relief to Daker in the form of a second, out-of-time direct appeal so that he may start the post-conviction process anew in the trial court, either with the assistance of counsel – appointed counsel if Daker has been determined by the circuit public defender's office to be indigent at that time, or retained counsel if Daker has been determined not to be indigent – or pro se if the trial court first determines that Daker has validly waived his right to appellate counsel.

1. Background.

The record shows the following.¹

(a) The pretrial proceedings. On January 15, 2010, Daker was arrested on charges related to the murder of Karmen Smith in Cobb County in 1995. In a notice dated January 19, 2010, the Cobb County Circuit Defender's Office (‘‘CDO’’) informed Daker that it had determined, after an interview of him and an investigation of the information recorded on his application for the appointment of an attorney, that he did not qualify for appointed counsel because his "income exceed[ed] the guidelines for a court appointed attorney."² On January 28, private attorney Brian Steel filed an appearance to represent Daker. On April 1, a Cobb County grand jury indicted Daker for malice murder, four counts of felony murder, two counts of burglary, false imprisonment, and aggravated assault related to Karmen Smith's death, as well as aggravated battery of Nick Smith and attempted aggravated stalking of Loretta Spencer Blatz. On April 27, the trial court entered a consent order allowing Steel to withdraw due to a "disagreement [with Daker] on how to proceed on this case."

At a hearing on May 4, 2010, the trial court asked the CDO to appoint an attorney for Daker until he decided whether he wanted to hire new private counsel; Michael Syrop, a CDO public defender, then represented Daker at the hearing. On May 12, Syrop moved to withdraw at Daker's request. On June 9, the CDO filed an "Affidavit of Indigency," which said that "[u]pon consideration of the Application for Appointment of Counsel, [Daker] is found to be indigent" and that on May 28, Syrop had been appointed to represent Daker.

On July 19, 2010, the trial court held a hearing on Syrop's motion to withdraw, at which Daker asked to represent himself and requested additional time to prepare his argument for why he should be permitted to proceed without counsel. The court granted the continuance with the understanding that Syrop would assist Daker to prepare his argument. At a hearing on August 9, Syrop formally moved to allow Daker to represent himself. The court granted the motion after explaining to Daker in detail the consequences of his self-representation and finding that he was aware of his rights and the consequences of proceeding without an attorney at trial; the post-conviction process was not mentioned during the court's colloquy with Daker. Daker then represented himself for the remainder of the hearing. During the hearing, the court also informed Syrop that it intended to enter an order allowing him to withdraw as counsel and appointing him to serve as standby counsel; on August 17, the court filed that order.

In a notice dated September 23, 2010, the CDO informed Daker that it had determined, after an interview of him and an investigation of the information recorded on his application for the appointment of an attorney, that he was ineligible for appointed counsel because his "income exceed[ed] the guidelines." On November 15, Daker filed a motion for an interview with the Circuit Defender (along with a motion to proceed in forma pauperis and motion for replacement of standby counsel). Daker claimed that the CDO filed its September 23 notice declaring him not indigent – after previously filing the affidavit of indigency on his behalf on June 9 – because Daker and Syrop had requested funds from the CDO for certified copies of records, and that the determination was based on the outdated January 2010 interview following his arrest. In an order filed March 25, 2011, the trial court summarily denied all three motions and released Syrop from the case. In the same order, however, the trial court directed the CDO to investigate Daker's financial status again. On April 4, the CDO filed a notice saying that, after an interview of Daker and an investigation of the information recorded on his application for the appointment of an attorney, the CDO found him not indigent because he had "other financial resources available."

On December 5, 2011, however, the CDO filed an "Affidavit of Indigency," which said that "[u]pon consideration of the Application for Appointment of Counsel, [Daker] is found to be indigent," and that on November 28, 2011, Michael Treadaway had been appointed to represent him. On December 9, 2011, the trial court filed an order captioned "Redetermination of Indigency" and signed by both a judge (apparently not the judge who generally presided over Daker's case) and a CDO representative, which said that Daker had previously been "determined to be indigent" on May 28, 2010, and that "[a] conflict has occurred and [Daker] will be appointed another circuit defender"; the order then said that "it is the finding of this court that ...