Parks v. McClung

• Decision Date: 23 November 1999
• Docket Number: No. S99A0712.,S99A0712.
• Citation: 524 S.E.2d 718,271 Ga. 795
• Parties: PARKS et al. v. McCLUNG.
• Court: Georgia Supreme Court

524 S.E.2d 718

271 Ga. 795

PARKS et al. v. McCLUNG.

No. S99A0712.

Supreme Court of Georgia.

November 23, 1999.

Reconsideration Denied December 20, 1999.

Robert E. Toone, Jr., Stephen B. Bright, Atlanta, for appellant.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George R. Ellis, Jr., Americus, for appellee.

Mary W. Whiteman, Michael B. Shapiro, Atlanta, James C. Bonner, Decatur, amici curiae. THOMPSON, Justice.

The issue for decision in these consolidated habeas corpus cases is whether the petitioners, Shelby L. Parks and Curtis W. Baker, made a knowing and intelligent waiver of their right to counsel when, at the time they were arraigned, they pleaded guilty. We hold that petitioners did make such a knowing and intelligent waiver and that, therefore, their convictions and sentences are constitutionally valid.

Petitioners were arraigned in the State Court of Sumter County.¹ Each petitioner pleaded guilty and received a sentence which included a period of incarceration followed by probation; each petitioner served his incarcerated sentence; and each petitioner subsequently had his probation revoked.² Thereafter, petitioners filed these petitions for habeas corpus relief, asserting they were denied their right to counsel when they pleaded guilty without a lawyer; and that, therefore, their probated sentences could not be revoked.

The habeas corpus court denied relief, ruling that petitioners were advised of their right to counsel and that they knowingly, intelligently, and voluntarily waived that right. We granted a certificate of probable cause to appeal.

A verbatim record of the guilty plea hearings was not made.³ And neither the state court judge nor the solicitor could recall precisely what transpired when petitioners were arraigned. However, the record does demonstrate that prior to announcing a plea, petitioners were given a "waiver of rights" form; and that each petitioner signed or initialed this form. Although the form signed by Parks and the form signed by Baker were not identical, they differed in only minor respects and read, essentially, as follows:

I have been advised and do understand that I may plead guilty or not guilty, and that if I plead not guilty I may have a trial by jury, with the right to confront and cross-examine the witnesses against me. I understand that if I desire a trial, I have the right to subpoena witnesses into court to testify in my defense. I also have been advised and do understand that if the court should conclude that I am indigent (financially unable to employ a lawyer), a lawyer will be appointed to defend me. I have not been threatened or coerced in any way to plead guilty, nor have I been promised any hope of reward to get me to plead guilty. I understand that the possible penalty for a misdemeanor is 12 months in prison and a $1,000 fine. Being so advised and understanding the rights stated herein, I do hereby freely and voluntarily enter my plea to the above charge(s).

Each petitioner also signed the following statement which was set forth separately on the form: "I do not desire a lawyer, appointed or employed, and waive the right to have an appointed or employed lawyer to represent me."

Routinely,⁴ if a defendant was arraigned in the State Court of Sumter County and he signed the "waiver of rights" form, he was asked to announce his plea.⁵ If he responded that he was guilty, the court would have made sure that a defendant knew that he had a right to an attorney and, if he was unable to afford an attorney, one would be appointed to represent him. In addition, the court would have advised a defendant of his other constitutional rights; it would have asked a defendant whether he understood that by pleading guilty he was waiving his constitutional rights, including the right to counsel. The court would also have inquired whether a defendant understood the charges against him and the consequences of a guilty plea. In that regard, the court would have told a defendant of the parameters of the sentence which could be imposed. It was only after this colloquy, and after it satisfied itself that a defendant made a knowing, voluntary and intelligent waiver of his rights, including the right to counsel, that the court would have accepted a guilty plea.

The right to counsel attaches when a defendant is placed on trial for any offense, whether a felony or a misdemeanor, and faces imprisonment.⁶ Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, our courts have held that a defendant is not entitled to court-appointed counsel unless he is actually imprisoned. Brawner v. State, 250 Ga. 125(2), 296 S.E.2d 551 (1982); Johnston v. State, 236 Ga. 370, 223 S.E.2d 808 (1976); Smith v. State, 211 Ga.App. 567, 440 S.E.2d 44 (1993), rev'd on other grounds, State v. Smith, 264 Ga. 634, 452 S.E.2d 90 (1994); Capelli v. State, 203 Ga.App. 79, 416 S.E.2d 136 (1992).

Although petitioners received both incarcerated and probated sentences, they served the incarcerated sentences; their challenge, in these habeas corpus petitions, is to the probated sentences which were revoked subsequently. We must inquire, therefore, whether petitioners' subsequent incarceration, based on the revocation of their probation, violated their right to counsel.

Where a defendant is given a conditional, probated sentence, he is not entitled to court-appointed counsel. Id. This is not to say, however, that a court can revoke a defendant's probation if he was denied his right to counsel when he was placed on probation. In Morgan v. State, 135 Ga.App. 139, 142(6), 217 S.E.2d 175 (1975), rev'd, Morgan v. State, 235 Ga. 632, 221 S.E.2d 47 (1975), defendant was convicted of voluntary manslaughter and, during sentencing, the State introduced two prior misdemeanor convictions for enhancement. Defendant objected, pointing out that he was without counsel when those convictions were obtained. The Court of Appeals affirmed, holding that, while an uncounseled felony conviction cannot be used to enhance a sentence, an uncounseled misdemeanor conviction can. This Court reversed and remanded for resentencing because it failed "to see how the integrity of a misdemeanor conviction can be any less affected by a lack of counsel than a felony conviction." Morgan v. State, 235 Ga. 632, 633, 221 S.E.2d 47, supra.

If a constitutionally invalid misdemeanor conviction cannot be used to enhance a sentence, id., then a fortiori, a constitutionally invalid probated sentence cannot be revoked. After all, a revoked probated sentence is nothing less than actual imprisonment. See United States v. Foster, 904 F.2d 20, 21 (9th Cir.1990) (defendant's probation cannot be revoked if he was denied right to counsel when he received probated sentence); cf. Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841 (1972) (defendant not entitled to counsel at revocation hearing where he was represented by counsel at time of sentencing). Inasmuch as petitioners challenge the revocation of their probation, we must determine whether they knowingly and intelligently waived their right to counsel when they were placed on probation.

A strict standard must be applied to waivers of right to counsel whether at trial or, as here, at pretrial proceedings, Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49 (1981); see Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (right to counsel is as important to defendant who must decide whether to plead guilty as it is to defendant who stands trial); and the burden is on the State to present evidence of a valid waiver. Jones v. Wharton, 253 Ga. 82, 83, 316 S.E.2d 749 (1984). The State carried its burden here. The extrinsic evidence offered at the habeas corpus hearing demonstrated that the trial court advised defendants of their right to counsel; and that it satisfied itself that defendants were cognizant of that right and voluntarily waived it. This evidence authorized the habeas court's finding that petitioners knowingly, intelligently and voluntarily waived their right to counsel. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Goodman v. Davis, 249 Ga. 11, 287 S.E.2d 26 (1982); Huff v. Barnett, 230 Ga. 446, 197 S.E.2d 345 (1973); cf. Warner v. Jones, 241 Ga. 467, 246 S.E.2d 320 (1978).

Petitioners assert that any waiver of counsel was invalid because they "announced" their plea before the trial court advised them of their right to counsel. We cannot accept this assertion. The entry of a guilty plea is a process; it does not take place the moment a plea is uttered. Why? Because a guilty plea can be withdrawn up until the time sentence is pronounced. OCGA § 17-7-93. Thus, a defendant can insist on his constitutional rights and withdraw his plea until it is "accepted" by the trial court. See Carney v. State, 131 Ga.App. 209, 210, 205 S.E.2d 518 (1974) (pronouncement of plea means signing of written sentence and its delivery to the clerk). See generally Boykin, supra at 242, 89 S.Ct. 1709 (error for trial court to accept guilty plea without affirmative showing that it was intelligent and voluntary).

Relying upon Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), petitioners assert the trial court should have made them aware of the dangers of proceeding pro se. We disagree. In Faretta, the Supreme Court held that a defendant should be made aware of the risks of self-representation before he represents himself at trial. Thus, a Faretta inquiry is addressed to a defendant's understanding of courtroom procedure and his ability to conduct a defense. That type of inquiry is out of place at the guilty plea stage. State v. Cashman, 491 N.W.2d 462 (S.D.1992); see Stano v. Dugger, 921 F.2d 1125, 1145 (11th Cir. 1991); but see State v. Lambert, 720 So.2d 724 (La.App. 3rd Cir.1998).

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., and...