Walker v. State

308 Ga. 749

843 S.E.2d 561

WALKER

v.The STATE.

S20A0170

Supreme Court of Georgia.

Decided: May 18, 2020

Bentley C. Adams IV, for appellant.

Julia F. Slater, District Attorney, Frederick Lewis, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.

Boggs, Justice.

Appellant Vashon Londell Walker challenges his 2016 conviction for felony murder for the shooting death of his girlfriend, Jessica Osborne. He contends that the evidence was legally insufficient, that the trial court erred in admitting a shell casing and related photographs in violation of his constitutional right to confront his accusers, and that he was denied the effective assistance of counsel. As explained below, Appellant's contentions lack merit. Accordingly, we affirm.¹

1. "It is incumbent upon the Court to question its jurisdiction in all cases in which jurisdiction may be in doubt." Woods v. State , 279 Ga. 28, 28, 608 S.E.2d 631 (2005). On November 5, 2019, the State filed a motion to dismiss this appeal, noting that Appellant filed his motion for new trial pro se; the record contains no written order permitting his trial counsel to withdraw; by the time Appellant's current counsel filed an entry of appearance and an amended new trial motion, the 30-day deadline to file a new trial motion had long since passed; and absent the filing of a timely new trial motion in 2016, Appellant's 2019 notice of appeal was untimely by more than three years. The State argued that because Appellant filed his motion for new trial pro se while he was still represented by counsel, his filing was a legal nullity, and this Court therefore lacks jurisdiction over this appeal. See OCGA § 5-6-38 (a) ("A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial ... has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.").

The State's motion to dismiss relied primarily on this Court's statement in Tolbert v. Toole , 296 Ga. 357, 767 S.E.2d 24 (2014), that "[a] formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record." Id. at 362, 767 S.E.2d 24 (citations and punctuation omitted). The State also cited this Court's decision in White v. State , 302 Ga. 315, 806 S.E.2d 489 (2017), in which we said:

[A]t a minimum, legal representation continues – unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see [Uniform Superior Court Rule] 4.3 (1)-(3) – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea ....

Id. at 319, 806 S.E.2d 489 (citing Tolbert ). Accord Dos Santos v. State , 307 Ga. 151, 153, 834 S.E.2d 733 (2019). See also Jones v. State , 309 Ga. 337, ––––, 840 S.E.2d 357, 359 (2020) (quoting Dos Santos , in turn quoting White ).²

On December 23, 2019, we issued an order denying the State's motion to dismiss. Unlike this case, White did not involve on direct appeal an explicit invocation of a defendant's constitutional right to self-representation. See also Dos Santos , 307 Ga. at 154-155, 834 S.E.2d 733 (vacating order denying on the merits the defendant's pro se motion to withdraw her guilty pleas filed during the same term of court in which sentence was entered and remanding the case to the trial court with direction to dismiss the motion as inoperative because the defendant's plea counsel did not request to withdraw from the case until a week after the term of court had ended and the trial court did not enter an order permitting plea counsel to withdraw until more than a week after that); Jones , 308 Ga. at ––––, 840 S.E.2d at 359 (vacating order denying the defendant's pro se motion for out-of-time appeal filed more than five years after entry of convictions and sentence on her guilty pleas and remanding the case for the trial court to hold a hearing on whether the failure to file a timely notice of appeal was due to ineffective assistance of plea counsel). Neither did most of the Court of Appeals cases cited in footnote 2 above.³ See, e.g., Cason v. State , 348 Ga. App. 828, 829-830, 823 S.E.2d 357 (2019) (vacating order denying the defendant's pro se motion to withdraw his guilty plea filed during the same term of court in which sentence was entered and remanding the case to the trial court with direction to dismiss the motion because the record did not contain an order allowing plea counsel to withdraw); Hernandez-Ramirez v. State , 345 Ga. App. 402, 402-403, 812 S.E.2d 798 (2018) (same).

Tolbert did involve such an explicit invocation, but Tolbert came to us on review of an order denying habeas relief and, more importantly, is factually inapposite. David Tolbert, whose convictions for armed robbery and other crimes had been affirmed by the Court of Appeals, filed a habeas petition alleging among other things that his pro se notice of appeal from the trial court's pretrial oral ruling denying his motion for discharge and acquittal on statutory speedy trial grounds had never been resolved and therefore deprived the trial court of jurisdiction to try him, rendering the resulting judgments of conviction void. See Tolbert , 296 Ga. at 357, 767 S.E.2d 24. The habeas court denied relief, and we granted Tolbert's application for a certificate of probable cause to appeal to consider whether the habeas court erred in ruling that Tolbert had procedurally defaulted his jurisdictional claim. See id. We held that the habeas court's procedural default ruling was erroneous but nevertheless affirmed the judgment denying relief after concluding that, contrary to Tolbert's assertion and the habeas court's assumption, the record on appeal did not show that Tolbert was authorized to proceed pro se when he filed his pretrial notice of appeal in his criminal case. See id. at 358-363, 767 S.E.2d 24.

In the month before his criminal trial was specially set to begin, Tolbert, who was represented by appointed counsel, filed a pro se motion to remove his counsel for alleged ineffective assistance and a pro se motion for discharge and acquittal on statutory speedy trial grounds. See Tolbert , 296 Ga. at 357-358, 767 S.E.2d 24. Two days later, the trial court held a hearing and orally denied both motions. See id. at 358, 767 S.E.2d 24. Tolbert then invoked his constitutional right to represent himself, and the trial court, after discussing with Tolbert "why that might be a bad idea," said that it was relieving Tolbert's appointed counsel and was signing a written order to that effect. Id. If that were all, our decision in Tolbert would, as the State argues, dictate that we dismiss this appeal.

But that was not all. In Tolbert , even though the trial court said on the record at a motions hearing that it was signing a written order relieving Tolbert's counsel, no such written order appeared in the record. See id. The habeas record did not contain any order permitting Tolbert's appointed counsel to withdraw in the criminal case or even a request for such an order, as required by Uniform Superior Court Rule 4.3. See Tolbert , 296 Ga. at 358 & n.5, 767 S.E.2d 24. Moreover, two weeks after the hearing, Tolbert's appointed counsel – who Tolbert claimed had already been relieved from representing him – filed a "Notice of Withdrawal" as counsel of record, which undercut Tolbert's assertion that the trial court had already removed his counsel. See id. at 358, 767 S.E.2d 24. And on the same day that Tolbert filed his notice of appeal pro se – August 1, 2008 – a private attorney signed and served an "Entry of Appearance" on Tolbert's behalf in his criminal case, which further suggested that Tolbert was never authorized to proceed pro se. See id. at 358-359, 362-363, 767 S.E.2d 24. With that private attorney representing him, Tolbert was tried in August 2008 and again in December 2008, with both proceedings ending in mistrials, and he was tried a third time in 2009, which resulted in the convictions that Tolbert challenged in the habeas court. See id. at 359, 767 S.E.2d 24.

We held that under this particular factual scenario, as reflected in the habeas court record transmitted to this Court on appeal, Tolbert was represented by counsel when he filed his pro se notice of appeal on August 1, 2008, rendering his notice of appeal a legal nullity. See Tolbert , 296 Ga. at 362-363, 767 S.E.2d 24. We explicitly noted that it was Tolbert's burden, as the party challenging the habeas court's ruling denying relief, "to affirmatively show error from the record on appeal." Id. at 363, 767 S.E.2d 24.

Nothing similar occurred here. Instead, as explained in footnote 1 above, after the trial court pronounced Appellant's sentence, a question arose as to whether Appellant, who had been represented up to that point by retained counsel, wanted to waive his right to counsel and proceed pro se as to a motion for new trial due to a lack of funds. After a colloquy in which the trial court advised Appellant of his right to appointed counsel and explained the dangers and disadvantages inherent in self-representation, Appellant indicated that he wished to proceed pro se, and the court made a finding on the record that Appellant had freely, intelligently, and knowingly elected to waive his right to counsel and to represent himself. See McCoy v. Louisiana , 584 U.S. ––––, ––––, 138 S.Ct. 1500, 1507, 200 L.Ed.2d 821 (2018) ("[T]he right to defend is personal, and a defendant's choice in exercising that right must be honored out of that respect for the...