Wright v. State

356 Ga.App. 597

848 S.E.2d 467

WRIGHT

v.The STATE.

A20A1353

Court of Appeals of Georgia.

September 9, 2020

Jerry Wayne Chappell II, for Appellant.

Oliver Jackson Browning Jr., for Appellee.

Reese, Presiding Judge.

A Haralson County jury found Ashley Wright ("the Appellant") guilty of one count each of burglary in the first degree and criminal trespass.¹ The Appellant seeks review of the denial of her motion for new trial, arguing that the trial court abused its discretion by not appointing her new counsel and in finding that she made a knowing, intelligent, and voluntary waiver of her right to counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows the following facts. On or about June 26, 2016, Andrew Chandler and a friend traveled to the home of A. C., the victim. They looked around, and after noticing that no one was there, broke a window in the home and removed various electronics. They left A. C.’s home and walked to the home of Chandler's uncle where the Appellant lived. Chandler showed the Appellant the items he had removed from A. C.’s home and told the Appellant that he had seen "a couple of big-screen TVs" there. At approximately 9:30 p.m. that same day, the Appellant went to A. C.’s home with Chandler and two other men. They found a gun safe in the home and removed items including guns and laptops.

During the investigation of the incident, the Tallapoosa Police Department obtained a search warrant for the Appellant's home. While executing the search, the police found items that had been reported missing from A. C.’s home, including guns, jewelry, money, clothing, and shoes. At trial, Chandler testified that he, the Appellant, and two men had gone into A. C.’s home and removed items from the house.

Following her conviction, the Appellant, through appellate counsel, filed a motion for new trial. After a hearing, the trial court denied the Appellant's motion, and this appeal followed.

The Sixth Amendment guarantees effective assistance of counsel, not preferred counsel or counsel with whom a meaningful relationship can be established. An indigent defendant is not entitled to have [her] appointed counsel discharged unless [s]he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client. Where a defendant does not have a good reason for discharging [her] court-appointed attorney, the trial court does not err in requiring [her] to choose between representation by that attorney and proceeding pro se. We evaluate a trial court's decision regarding whether to appoint new trial counsel for an indigent defendant under an abuse of discretion standard.³

With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

1. The Appellant argues that the trial court abused its discretion by not appointing her another attorney after she showed there was a lack of communication and a conflict with her trial attorney. We disagree.

The record shows that the trial court addressed the Appellant's concerns about her court-appointed attorney at two pre-trial hearings, the first on October 8, 2018, and the second on October 22, 2018. At the October 8 hearing, trial counsel told the trial court that he had been appointed to represent the Appellant on August 19, 2016. He had represented her on another case, and bench warrants had been issued against her in this case "a couple of times[.]" He further stated that he had "attempted over the last two years to meet with [the Appellant] and speak with her about the case. She has changed phone numbers three times. My phone number is the same. I am very easy to find. I have yet to be able to sit down and actually talk to her about this case." Trial counsel informed the trial court that the Appellant was incarcerated in Carroll County, and that on October 7, 2018, he had visited her in jail.

At the hearing, the Appellant told the trial court that "[o]n numerous occasions [she had] texted and called [trial counsel] and he [did not] return [her] calls." She requested another attorney because "he [was] not representing [her]" and trial counsel had failed to help her "at all." When the trial court asked the Appellant if she had evidence that she wrote trial counsel or had communicated with him by phone, the Appellant responded, "I don't." Further, the Appellant admitted that she had spoken to trial counsel when he called her at her grandmother's home.

At the hearing on October 22, trial counsel told the trial court that he did not see any "legal issue[ ]" with the search warrants that had been granted and that he had told the Appellant that it was "not [his] job to file frivolous motions before the [trial c]ourt." In its order denying the Appellant's motion for new trial, the trial court found that at the pre-trial hearings, the Appellant had not been "able to provide any information to show that she communicated with her appointed legal counsel and [that] he failed to respond to her."

"A breakdown in communication between a defendant and his counsel must be extreme before it mandates that the trial court remove appointed counsel."⁴ It follows that "tension in the attorney-client relationship, disagreements over trial strategy, and a general loss of confidence or trust in counsel are insufficient, without more, to demonstrate the type of complete breakdown in communication necessary to mandate the removal of counsel from the case."⁵

Here, sitting as the fact finder, the trial court could disbelieve the Appellant's explanation and rely on the statements proffered by trial counsel regarding their communications and interactions.⁶ Also, the Appellant did not provide any evidence of her written or telephonic attempts to reach trial counsel. Consequently, the trial court did not abuse its discretion in denying her request for new court-appointed counsel.

2. The Appellant argues that she did not knowingly, intelligently, and voluntarily waive her right to be represented by counsel. We disagree.

Although a criminal defendant has a Sixth Amendment right to assistance of counsel at trial, the defendant also has the constitutional right to represent [her]self, as long as [s]he voluntarily, knowingly, and intelligently elects to waive the right to counsel. To establish a valid waiver, the trial court must apprise the defendant of the dangers and disadvantages inherent in representing [her]self so that the record will show that [s]he knows what he is doing and [her] choice is made with eyes open.⁷

It follows that "[a] defendant's waiver of [her] right to counsel is valid if the record reflects that the defendant was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver."⁸

It is not required that the trial court probe the defendant's case and advise the defendant as to legal strategies to ensure that a waiver is intelligently made. Indeed, the defendant's technical legal knowledge is irrelevant to the question of whether [s]he validly waives his right to be represented by counsel. The test is not whether the accused is capable of good lawyering, but whether [s]he knowingly and intelligently waives [her] right to counsel. Although the State has the burden of showing that a defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver of the right to trial counsel, a trial court's ruling on this issue is reviewed only for an abuse of discretion.⁹

The record shows that at the October 22 hearing, the trial court conducted a Faretta¹⁰ colloquy with the Appellant. The trial court began the hearing by asking the Appellant a series of questions, regarding the number of years of school she had completed and her ability to read, write, and understand or speak English. The Appellant responded that she had completed the 11th grade and that she could read, write, speak, and understand English. After stating to the trial court that the search of her family home was illegal to which the trial court responded that trial counsel had "decision-making authority" as to what motions should be filed, the Appellant asked if she could "just throw [her]self at the mercy ... of the [trial c]ourt[.]"

The trial court explained that the Appellant could enter a blind plea "in which there [would be] no [sentencing] recommendation." The Appellant responded that she had "a son at home," and she had already served seven and a half years on a prior conviction. The trial court advised the Appellant that she would have to make a decision regarding whether she wanted to go to trial. The Appellant asked if her bench warrant for failing to appear could be "dropped" so that she could go to her mother's home and spend time with her family. The trial court denied the Appellant's request, explaining that when the Appellant failed to appear, there was a jury waiting for her and "[she] did not show up[.]" The trial court continued with the Faretta hearing and asked the Appellant if she understood "that self-representation may be bad for you, may be a detriment to you. It may hurt you." The Appellant responded: "Yes, sir." The trial court continued: "Do you understand that you are entitled to no special treatment by the [trial c]ourt if you [re]present yourself?"

[A by the Appellant]: Yes, sir.

[Q by the trial court]: Do you understand that you must follow all of the technical rules and substantive law, criminal procedure, and evidence for making motions, objection, and presentation, jury selection, and arguments even if you do not know how those rules apply; do you understand that?

[A]: Yes, sir.

[Q:] Do you understand that you will have to abide by the same rules that it took years for lawyers to learn?

[A:] Yes, sir.

[Q]: Do you understand that if you represent yourself you are assuming full responsibility for your defense?

[A:]

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