Mcdaniel v. State

• Decision Date: 20 June 2014
• Docket Number: No. A14A0674.,A14A0674.
• Citation: 761 S.E.2d 82,327 Ga.App. 673
• Parties: McDANIEL v. The STATE.
• Court: Georgia Court of Appeals

327 Ga.App. 673

761 S.E.2d 82

McDANIEL

v.The STATE.

No. A14A0674.

Court of Appeals of Georgia.

June 20, 2014.

Patrick Radcliffe Sullivan, Atlanta, for Appellant.

James Luther Wright III, Jordan Kerry Van Matre, for Appellee.

BOGGS, Judge.

Danny McDaniel appeals from his convictions of mortgage fraud and theft by taking. He contends that he is entitled to a new trial, because (1) he did not knowingly and intelligently waive his Sixth Amendment right to counsel, and (2) the trial court abused its discretion by denying his request for a continuance to hire counsel. For the reasons explained below, we reverse and remand for a new trial.

1. Relying upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49 (1981), McDaniel asserts that the trial court failed to properly advise him of his rights under Faretta, and failed to make a finding as to whether he knowing and voluntarily waived his right to counsel. In the Supreme Court of Georgia's oft-cited opinion in Clarke v. Zant, it summarizes the protections afforded a defendant seeking to represent himself as follows:

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that while a criminal defendant has an absolute right to counsel in any prosecution which could result in imprisonment, the accused also has a fundamental right to represent himself in a state criminal trial “when he voluntarily and intelligently elects to do so.” Faretta, at 806 Faretta also states at 835 : “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “ ‘he knows what he is doing and his choice is made with eyes open.’ ” Adams v. United States ex rel. McCann, 317 U.S. [269] at 279 [63 S.Ct. 236, at 242, 87 L.Ed. 268 (1942) ].... “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case including the background, experience, and conduct of the accused. [Cit.]”

Id., 247 Ga. at 195–196, 275 S.E.2d 49. It then held “that in future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Id. at 197, 275 S.E.2d 49.

Following the Supreme Court's opinion in Clarke v. Zant, this court held:

In order to establish a valid waiver, ... such waiver must be made with an apprehension of [1] the nature of the charges, [2] the statutory offenses included within them, [3] the range of allowable punishments thereunder, [4] possible defenses to the charges and [5] circumstances in mitigation thereof, and [6] all other facts essential to a broad understanding of the matter.

(Citation and punctuation omitted.) Prater v. State, 220 Ga.App. 506, 509, 469 S.E.2d 780 (1996). When a defendant argued that a new trial should be granted based upon an absence of evidence in the record showing each of these six factors, the Supreme Court clarifiedthat while “it would be helpful, it is not incumbent upon a trial court to ask each of the questions set forth in Prater. The record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Wayne v. State, 269 Ga. 36, 38(2), 495 S.E.2d 34 (1998). See also State v. Evans, 285 Ga. 67, 68–69, 673 S.E.2d 243 (2009).

(a) We find no merit in McDaniel's claim with regard to the trial court's alleged failure to make a finding that he knowingly and voluntarily waived his right to counsel. First, in Brooks v. State, 243 Ga.App. 246, 248(1)(a), 532 S.E.2d 763 (2000), this court rejected an argument that “a trial judge's failure to articulate ‘on the record’ a specific finding that a defendant knowingly waived his right to counsel is error per se, regardless of the facts and circumstances of a particular case.” Id. A majority of this court concluded that “while such a finding is preferable, its omission is not error when the record as a whole demonstrates a defendant's knowing waiver. [Cits.]” (Emphasis in original.) Id. Additionally, this court has held that a trial court's determination of a knowing and voluntary waiver within an order denying a motion for new trial qualifies as a finding on the record. Stevens v. State, 199 Ga.App. 563, 566(2), 405 S.E.2d 713 (1991). In this case, the trial court found, in a detailed written order denying McDaniel's motion for new trial, “that the Defendant knowingly and voluntarily waived his right to counsel after being apprised of the risks of self-representation.”

(b) We now consider whether the particular facts and circumstances of this case show that McDaniel “was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Wayne, supra, 269 Ga. at 38(2), 495 S.E.2d 34. “The state has the burden of demonstrating that the defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver of the right to counsel.” (Citations, punctuation and footnote omitted.) Cox v. State, 317 Ga.App. 654, 655, 732 S.E.2d 321 (2012).

The record shows that McDaniel was arrested in September 2010 on charges relating to mortgage fraud and remained in jail following his arrest. On April 14, 2011, he was indicted for residential mortgage fraud and theft by taking. On May 24, 2011, the same day as his arraignment, McDaniel filed a three-page motion to proceed pro se and a two-page motion for discovery material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In his motion to proceed pro se, McDaniel stated that he “originally had hired a local attorney to represent him in these allegations, and due to ineffective assistance in his representations, Defendant fired counsel;” that he “prefers to represent himself, rather than be subjected to more ineffective counsel representations, by either the Public Defender's office or a local ‘Good’ attorney;” that he “has experience in self-representation in state courts in the past, [and] was a law clerk for 3 years in the Federal System, filing many appeals in the District and Circuit Courts, up, and, to[ ], the United State Supreme Court;” that “Defendants allegations are not complex, per se, and with the substantive evidence in support of his defense, he feels that upon certain pre-trial motions, these allegations should be dismissed. If not, Defendant is confident that he can survive a jury trial.” He also asked for access to a law library and a copy of the Georgia Rules of Criminal Procedure.

The transcript of a June 28, 2011 status conference begins with the trial court determining that the State did not oppose McDaniel's motion to proceed pro se.¹ McDaniel then informed the trial court that he did not qualify for a public defender and did not wish to hire counsel. The trial court informed McDaniel that “[t]hese are serious charges obviously” with “serious consequences associated with being found guilty of those offenses,” identified the particular charges against him, asked the State to outline the maximum possible sentences, inquired about McDaniel's legal training and learned that he had represented himself in a couple of jury trials involving felony offenses in Clayton County Superior Court, and informed him that he would be required to abide by the procedural rules, introduce evidence according to the rules of evidence, and make his own objections. Finally, the trial court advised McDaniel that it would consider appointing counsel to “sit as elbow counsel in order to assist the Court and help you. That's the term. You would still represent yourself but they can assist you.” The status conference concluded with the State and McDaniel agreeing to explore plea options, and the trial court asking the State to investigate the adequacy of McDaniel's access to legal resources. The trial court stated at that time, “What I'm going to do is I'm going to put this case again on our calendar for July 19 and at that time we'll go over in detail your Faretta rights.”

In the July 19, 2011 status conference, McDaniel affirmed again that he had elected to represent himself. The trial court then inquired about the outcome of plea discussions, and the prosecutor informed the court that he

went to see Mr. McDaniel at the jail and we spent actually a great deal of time together going over his case in detail. Probably as much detail as I have ever discussed a case with any pro se defendant as well as any attorney representing a client. I showed him all the paperwork that the State would be seeking to introduce and explained what each piece of paperwork meant. Mr. McDaniel knew what everything was and understood what the State was intending to do.

The State's attorney also advised McDaniel that it would seek a recidivist sentence and instructed him about the different ways it could prove the prior convictions. McDaniel understood their discussions about a recidivist sentence, and the State's attorney “felt like Mr. McDaniel understood it as well as anybody I've ever explained it to.” In response to questioning by the trial court, McDaniel agreed with the State's summary of their meeting and acknowledged that he understood how the recidivist statute worked. The status conference concluded with the trial court agreeing that McDaniel should be granted access to the law library in the courthouse. It also informed McDaniel that the case would be on the next criminal jury trial calendar beginning August 8, and set the case for another status conference on...