# FILED

November 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1998 SESSION

PAUL DAN SMITH, * # 01C01-9712-CC-00578

Appellant, * LAWRENCE COUNTY VS. * Hon. Will iam B. Cain, Jud ge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : J. Jay Cheatwood John Knox Walkup Attorney for Appellant Attorney General & Repor ter 231 Mahr Avenue P.O. Box 794 Elizabeth B. Marney Lawrenceburg, TN 38464 Assistant Attorney Gener al 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 James G. White Assistant District A

ttorney General P.O. Box 279 Lawrenceburg, TN 38464 OPINION FILED: __________________
REVERSED AND REMANDED GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Paul Dan Smith, appeals the trial court'sdenial of postconviction relief. The si ngle issue for review is whether the trial

court erred by concluding that the petiti oner had knowingly and voluntarily w

aived his right to counsel. We reverse the judgment of the tr ial court.

In 1996, the petitioner was indicted on four counts of burgl ary, three counts of theft, five counts of contrib uting to the delinquency of a minor, coercion of a witness, passing a

worthless check, and fel ony escape. On September 12, 1996, the petitioner, pro se, entered best interest pleas of guilty to fou r counts of burglary and single counts of felony escape and passing a worthless check. For each burglary convi ction, the petitioner w as sentenced to six ye

ars as a Multiple, Range II offender. For the felony escape, he r eceived a six-y

ear sentence as a Persistent, Range III offender. He was r equired to serve elev

en months twenty-nine day s for passing the worthles

s check. All sentences w ere to be served concurr ently. No fine was imposed. As a part of the plea agreement, the state dismi ssed eight other charges and agreed not to op pose parole.

There was no direct appeal.On October 31, 1996, the petiti oner filed this petition for post-conv iction relief, counsel w

as appointed, and the petition w as amended. The petitioner alleged that his guilty pleas were not knowing

and voluntary, that he w

as denied the right to couns el, and that his waiv

er of the right to counsel was neither know ingly nor volunt

arily made.

Just prior to the 1996 gui lty pleas, the public de fender informed the trial court that her office could not represent both the petitioner and his wife, Sheila Smith, who was charged with aiding and abetting felony escape. The trial court3 appointed another attorney to represent Ms. Smith, leaving the off ice of the public defender as the representative of the petitioner. At that point, the petitioner advised the trial court as follows:

Petitioner: Your Hono r, I would li ke to ref use to ha ve

the Public Defender's office repres ent me. Court: Well, you can hire your own l awyer. Other

than that, you don't have-- Petitioner: Your Honor, I would like to represent myself

then, because I do not think-- Court: You've got the rig ht to do that. The trial court provid ed the petitioner with c opies of the indictments and entered n ot guilty pleas on his behalf. When the petitioner inquired about a spee dy trial, the trial court set the trial for September 12th, just three days la ter. On the scheduled trial date, the pro se petitioner i nformed the trial court that he had negotiated a plea agreement with the state. The following colloq uy occurred:

Court: I have before me here a waiv er of a trial by jury .... You did s ign this waiver, did you? Petitioner: Yes, sir. Court: Now, Mr. Smith, y ou're here without an attorney and I believe you told me on Monday that you wante d to represent yourself; is that rig ht? Petitioner: That's correct. Court: Now, you understand that if you want an attorney and you're unabl e to employ one, then the Court will app oint an attorney for you. Do you understand that? Petitioner: Yes, sir. Court: And you want to wai ve that right and proceed with this m atter on your own without th e assista nce of an attorne y? Petitioner: Yes, sir, I do. Court: All right.4 The trial court advised the petitioner of his absolute r ight to a jury tri al and inquired whether there were promises made or coercive tactics us

ed by the state to induce the waiv er of trial by jury . No such question w as asked about the waiver of counsel. The tr ial court then declared that the petitioner had freely and voluntarily w

aived his right to a jury trial and acc epted the petitioner's wai ver of the right to counsel.

The indictments were read, a fter which the trial j udge propounded a series of questions. The record establishes that the petitione r was thirty-four years old at the time of his plea and that he had completed twelfth grade. His physical and mental health were descr ibed as good. The petitioner r epresented to the trial court that he was not then, n or at the time of the offenses, under the influen ce of intoxicants.

The trial court again infor med the defendant that he had the right to a trial and to have an attor ney appointed. The petitioner a cknowledged these rig hts. The petitioner was advi sed that his maximum possibl e penalty for these offenses was fifty-five year

s and that he could be fined twent y-five thousand dollar

s. The state presented a brief factual basi s for the pleas. The petitioner s ubmitted no additional information. Afterw ard, the trial court inq uired as follows: "[I]f understanding everything we've talked about here this morning and fully understanding, would y ou now want to withdraw your plea to any of these charges?" The petitioner replied that he di d not; he told the trial judge that he had no other statements to make and had no questi ons to ask. The trial court then found that the pleas were voluntar

y and knowing, acc

epted them, and imposed the agreed sentences.5 The record includes a wai ver of a jury trial

form dated September 12, 1996, which contains the foll owing paragraph:

I understand that ... if I choose t o plead "Not Guilty" the Constitution guarantees me . .. (e) the right to hav e the assistance of counsel in my defense at all stages of the proceedings and that if I cannot afford counsel, counsel will be appointed for me at no cost. The box signifying w

aiver of the right to appo inted counsel was checke d and the form was signed by the petitioner and the trial j udge.

On Septembe r 25th, thirteen days after the gui lty pleas, the tria l judge granted a hearing at the request of the petitioner:

Petitioner: I felt it was injustic e. ... What I felt like the day when I said that I didn't want the public defender to represent me, what I was saying i s that Mr. R undy had ins tructed me to say that. He said he c ouldn't represent me. He'd told me that for six months, your honor. Then when I said that I didn't want them to represent me, they didn' t stand up and say nothing about there was any conflict. Maybe I misunder stood. Court: That was on the 9th [of September], and

you stated at that time that y ou wanted to represent you rself. Petitioner: Because, your honor, yo u asked me did I

have funds to hire an attorney and I said, "no." Court: All right. You said, "no," and then you said

that you wanted to repre sent yourself.... Petitioner: Yes, sir, I did. Court: All right. Tell me about what's happened

that caused you to change y our mind .... Petitioner: I guess I ju st though t it over. I d on't kno w,

you know, I'm no attorney myself. I've got a limited ability as far as the law, you know

. I'm a truck driver. I don't know much about law. And six y

ears, I guess that's fine. You all are the Court sys

tem. If that's justice to be served, your honor,I can accept it and6 do the six years in

the State penitentiary or whatever. *** State: [The petitioner] wanted to tal k with us

regarding his cases prior to th e trial so we had him brought up, and I asked hi m if he wanted an attorney. He said, "no." I said, "If you want an attorney,you just pick one out and we'll see if they'll come over here and represent you and get an order from the Court." He did not w ant an attorney. *** If he does not want [the plea] w e can let him withdraw it, get him an attorney, and have a trial. *** Court: Didn't the attorney ge neral come down and

talk with you? Petitioner: Yes, sir, he did. Court: Well, as far as him saying at that time that

he would try to see that you got an attorney, do you agr

ee that that happened? Petitioner: Yeah. I felt like there was no attorney in

Lawrenceburg really

wants to represent me, your honor, not fairly . Not to really do a j ob and try to help me. ... But, I'm satisfied with the six years. *** Court: [I]f there's any problem, now is the time to work it out, rather than going to the penitentiary and filing petitions and post conviction relief and that sort of thing. If there is something that w e need to do before anything else happens, then I really need to know what that i s now. The way this stands, this will be a ... six year sentence ... at ... fort y-five percent? Petitioner: Yes, sir. Court: Now, is there anyth ing that you want to

redo that we did there on Sep tember 12th? Petitioner: No sir, I don't see none. Idon't see nothing

but just loading me up and sendi ng me on to the penitentiary and let me just do it, rather than keeping me in this suffering in Lawrence County jail.7 *** Court: But what I was concerned about is if there's

anything went wrong on the 12th when y ou entered your pleas, w

e need to redo or reconsid er now. Petitioner: I suppose not.

At the evidentiary hear ing on the petition for post-conviction relief, the petitioner testified that had been informed of his right to counsel before entering the guilty pleas. He mai ntained, however, that w hen he declined the servic es of the public defender's office, the trial court had ref used to appoint other counsel. He claimed that he asked to repres ent himself only because he had no alternative. The petitioner contended that had he been appointed counsel, he would hav e been informe d that ne cessity was a defens e to felo ny escape and that he would no t have pled guilty. He cl aimed that he did not know the l aw and had no access to legal references. The petitioner insi sted that his waiver of the right to counsel w as not knowingly or intelligently entered because he did not fully understand his rights. He also complained about an assault at the jail and testified that he had been intimidated by the trial

judge at the arraignment.

On cross-examination, the petitioner admitted that he had thirty prior convictions and had on three different prior occasions ent ered guilty pleas. He could not point to a particul ar right that he did not und erstand and acknowledged that prior to accepting his guilty pleas, the trial court had informed hi m he had the right to an attorney. The petitioner stated that the r eason he did not want an attorney at the time was because he did not know he needed one.

The trial judge who acc epted the petitioner's gui lty pleas testified that in his eighteen years

on the bench, he had never denied a defendant the8 representation of an attorney. He recalled that the petiti oner wanted to represent himself, requested a speedy trial and then expressed a desire to serve his sentence:

I got the impressi on that [the pe titioner] just wan ted to go on to the penitentiary .... And we went over this procedure, again. I reca ll telling him ... if there's anything wrong, you need to br

ing it to my attention, now. ... And he indicated to me that he was satisfied.

At the conclusion of the post-conviction proceeding, the trial court concluded that the petitioner' s decision to represent hi mself was "intelligentl y made with full knowledg e of his right to counsel." Under our statutory l aw, the petitioner bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the find ings of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the e vidence preponderates against those find ings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

When an accused desires to p roceed pro se, the trial judge must conduct an intensive inq uiry as to his abili ty to represent himself. State v. Northington , 667 S.W.2d 57, 61 (Tenn. 1984). The waiver of the right to counsel must be knowingly a nd intelligently made. State v. Armes , 673 S.W.2d 174, 177 (Tenn. Crim. App. 1984); Tenn. R. Crim. P. 44. In Johnson v. Zerbst , 304 U.S. 458, 465 (1938), the United States Su preme Court placed "the serio us and weighty responsibility ... of determining whether there is an intelligent and competent waiver" directly upon the trial judge. In a subsequent case, more specific guidelines were established: [A] judge must investi gate as long and as thoroug hly as

the circumstances of the case before him demand. The9 fact that an accused may tell hi m that he is informed of his right to counsel and desires to waive this right does not automatically end the jud ge's responsibility. To be valid such waiv

er must be made with an apprehens ion of the nature of the charges, the st atutory offenses included within them, the range of al lowable punishments thereunder, possible defenses to the charges and circumstances in mitig ation thereof, and all other facts essential to a broad understandi ng of the whole matter. A judge can make certain that an accused's professed waiver of counsel is

understandingly and w isely made only from a penetrating and c omprehensive examination of all the circumstances under which such a plea is tendered. Von Moltke v. Gilli es , 332 U.S. 708, 723-24 (1948). Rule 44(a) of the Tennessee Rules of Criminal Procedur e places a similar obligation on the trial court: Every indige nt defe ndant sh all be ent itled to h ave counsel assigned to represent him in all matters necessary to his defense and at every stage of the proceedings, unless he ex ecutes a written wa iver. Before accepting such waiver the court shall first advise the accused in open court of his r ight to the aid of counsel in every stage of the proceedings. The court shall, at the same time, determi ne whether there has been a competent and intelligent waiver of such rig ht by inquiring into the bac

kground, experience and conduct of the accused and such other matters as the court may deem appropriate. Any w aiver shall be spread upon the minutes of the court and made a part of the r ecord of the cause. See also State v. Gardner , 626 S.W.2d 721, 72 3 (Tenn. Crim. App. 1981). This court has recommended that the tri al court question a defendant w ho wishes to proceed pro se according to the guidelines contained in 1 Bench Book for United States District Judg es 1.02-2 to -5 (3d ed. 1986), al so contained in the appendix t o United States v. McDowell , 814 F.2d 245, 251-52 (6th Cir. 1987). State v. Herrod , 754 S.W .2d 627, 630 (Ten n. Crim. A pp. 1988 ). For ease of refe rence, we h ave included these guidelines in an appendix to this opini on.

In Northington , our supreme court held that the trial court had "wholly failed to properly inv

estigate [whether] the defendant understood the consequences10 of self-representation in lig ht of the Von Molke factors." 667 S.W.2d at 61 (internal quotation marks omitted). The trial court had addressed the seriousness of the charges, had advised that a pro se defendant would be held to the same standard as a lawyer, and w

as assured that the pro se defendant had discussed the case with his appointed attorney. Id. at 59. The age and education of the accused was also determined in advance of the accept ance of the waiver of the ri ght to counsel. Id. The trial court had warn ed Northington that proceedi ng pro se was unwi se. Id. Our supreme court set aside the conviction because the trial court "fa iled to diligently examine the defendant's backgro und and experience, failed to notify defendant as to the possible extent of any penitentiary sentence, and failed to elaborate fully to defendant why he thought it 'unwise' to waive counsel. " Id. at 61 (emphasis added).

In State v. Goodwin , 909 S.W.2d 35 (Tenn. Crim. App. 1995), a panel of this court ruled that Goodw in had validly w

aived his right to counsel. Id. at 41. There, the trial court inquired as to Goodwin's age and education and warned him that proceeding pro se w ould cause confusion. Id. at 40. Goodwin was i nformed that an attorney would be provided for him for pretri al proceedings through an appeal, if needed. Id. He was warned that he would not have access to a law library and that his a

dvisory counsel w

as not required to prov ide him with photocopies of relevant leg al materials. Id. The trial judge told him that the trial would proceed at the same pace as it would if he had appointed counsel, that he would not have an opportuni ty to confer with adv

isory counsel for ev

ery question, and that he was responsibl e for understanding the rules of evidence and local rules of court. Id. at 41. The trial judge informed Goodwin that, as a litigant, he would have "no gr

eater right than any other litig ant" and that h e would be t reated the sa me as if he were represented by counsel. The trial court is not required to inter rupt the trial to explain procedural rules, legal terms, or consequences of the litigant's11 actions. Id. This court held that Goodw in "clearly understood the hazards of representing himself." Id.

Here, the inquiry was not nearly as ex tensive and there wer

e no warnings of the pitfalls of self-representation. The trial court accepted the petitioner's waiv

er of counsel without aski ng about the defendant's backgroun d, education, or experience w ith the court system. While the tria l court inquired at the arraignment whether the petitioner understood the nature of the charges against him, no questions were asked at the plea submission hearing as to his understanding of lesser offenses or the elements of the offenses charged. The tr ial court did not ask whether he understood available defenses or the ran ge of possible punishments or fines he might face, if convicted. Most imp ortantly, the trial court failed to warn the petitioner that self-representation w as "unwise." The petitioner was not advised that he would be held to the same standar ds as an attorney trained in the law or that he w

ould not have access to legal reference materials. At the impromptu hearing when the trial court offered to let the petitioner withdraw his guilty pleas and proceed to trial w ith appointed counsel, the tri al judge still had not explained to the petitioner why he should have counsel and what he risk ed by refusing appointed counsel.

The state argues that the petiti oner was given an o pportunity to withdraw his plea

s and proceed to trial w ith appointed counsel on September 25 th, some thirteen days after enter ing his pleas and recei

ving his sentence. Bec ause the petitioner declined that offer, the state contends, he should not be enti tled to relief.

In State v. Duane A. Peters , C.C.A. No. 03C01-9112-CR-00382, slip op. at 1 (Tenn. Crim. App., at Knox ville, Apr. 15), app. denied , (Tenn. July 6, 1992),12 Peters proceeded to trial pro se and was convicted of criminal trespass. On appeal, he argued a violation of the right to counsel. Id. A panel of this court held that the record did not support a finding of a valid waiver of this fundamental right becau se there w as no com pliance

with t he mandat

es of Northington or Rule 44, Tenn. R. Crim. P. Id. , slip op. at 3-4. The state ar gued that the issue of right to counsel was waived because Peters did not include it in his motion for a new trial. Id. , slip op at 4. Presiding Judge John K. Byers wrote decisively on behalf of the court, as follows:

We find [the state's argument] to be rather ingenuous. Counsel is required t

o protect the rights of the ac cused. The accused goes to trial w ithout counsel. Upon appeal he raises the denial of counsel as a basis for a new tri al. Are we to deny reli ef because the uncounseled appellant did not know he must raise the issue in his motion for a new trial? These are the things which make the deni al of counsel prejudicial and the right to counsel mandatory unless properly w

aived. Id. , slip op. at 4 (emphasis added)

.

By insisting on a s peedy trial and self-repr esentation, the petitioner foolishly initiated a process which concluded in a predictable result. One and a half months later, he complained to the trial court for relief from hi s convictions and cite d his own folly as g rounds therefor. Ordinaril y, this court woul d have little desire t o address such a griev

ance. Yet the right to counsel issue has not been w aived or previously determin ed. Tenn. Code Ann. § 40-30-206(g), (h). Technically , the petitioner did not fail in the September 25th proceeding to pr esent his waiver of counsel issue. There was no ruling on the merits.Thus, there is no procedural bar.

Under the existing gui delines, the inquir y by the tria l court sho uld have been mor

e exten sive. The failu re to w arn of th e specific dang ers of se lfrepresentation is the area of pr imary concern. That the peti tioner had prior offenses suggests he had some prev ious knowledge of and ex perience with the cri minal13 justice system. Nonethel ess, the importance of an extensi ve inquiry is

emphasized by the content of the appendix. In our view, the evidence in the record preponderates against the tr ial court's finding that the waiver of the rig ht to counsel by the petitioner was

knowingly made. See Brooks , 756 S.W.2d at 289.

Accordingly, the j udgment of the trial court is reversed. The convictions are set as ide and the causes are remanded to the trial court for the appointment of counsel and a new trial.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ Thomas T. W oodall, Judge

________________________________ Curwood Wi tt, Judge14 APPENDIX

The followi ng excerp

t is from United States v. McDowell , 814 F.2d 245, 251-52 (6th Cir. 1987) (quoting

Guideline[s] For Dist rict Judges from I Bench Book for United States District Judg es 1.02-2 to -5 (3d ed. 1986)):

When a defendant states that he wishes to represent himself, you should ... ask que stions similar to the following: (a) Have you eve r studied law? (b) Have you ever re presented yourself or any other defendant in a criminal action? (c) You realize, do yo u not, that you are charg ed with these crimes: (Here state the crimes w ith which the defendant is cha rged.) (d) You realiz

e, do you not , that if you are found gui lty of the cr ime charged in Count I the court must impose an assessment of at least $50 ($25 if a misdemeanor) and could sentence you to as much as __ years in prison and fine y ou as much as $__? (Then ask him a similar q uestion with respect to each other crime with which he may be charg ed in the indictment or informati on.) (e) You realize, do yo u not, that if you are found guil ty of more than one of those crimes this court can order that the sentences be s erved consecutively, that is, one after another? (f) You realize, do you not, that if you represent yourself, you are on your own? I cannot te ll you how you s hould try your case or even advise you as to how

to try your case. (g) Are you familiar with the [Tennessee] Rules of Evidenc e? (h) You realize, do you not, that the [Tennessee] Rules of Evidence govern what evidence may or may not be introduced at trial and, in representing yourself, you must abide by those rules? (i) Are you familiar with the [Tennessee] Rules of Criminal Procedure? (j) You realize, do you not, that those rules govern the way in which a criminal action is tried in [this] court? (k) You realize, do you not, that if you decide to take the witness stand, you must present y our testimony by aski ng questions of yourself? You cannot just take the stand and tell your story. You must proceed question by questio n through your testi mony.15 (l) (Then say to the defendant something to this ef fect): I must advise you that i n my opinion you woul d be far better defended by a trained lawy

er than you can be by y ourself. I think it is unw ise of you to try to repres

ent yourself. You are not familiar with the law . You are not familiar with cou rt procedure. You are not familiar with the rules of evidence. I w

ould strongly urg e you not to try to re present yourse lf. (m) Now, in light of the penal ty that you might suffer if you are found guilty and in light of all of the difficulties of representing yourself, is it still your desire to represent yourself and to give up your ri ght to be represented by a lawyer? (n) Is your decision entir ely voluntary on your part? (o) If the answers to the two preceding questions ar e in the affirmative, [and in your opi nion the waiver of counse l is knowing and voluntary,] you s hould then say something to the following effect: "I find that the defendant has knowing ly and voluntarily waived his rig ht to counsel. I will therefore permit him to represent himself." (p) You should consider the appoi ntment of standby counsel to assist the defendant and to replace h im if the court should determine during trial that the defendant can no longer be permitted to represent himself. (Final alteration in original).