FILED

November 13, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1998 SESSION

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

Appellant, * LAWRENCE COUNTY

VS. * Hon. William B. Cain, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee:

J. Jay Cheatwood John Knox Walkup

Attorney for Appellant Attorney General & Reporter

231 Mahr Avenue

P.O. Box 794 Elizabeth B. Marney

Lawrenceburg, TN 38464 Assistant Attorney General

425 Fifth Avenue North

Cordell Hull Building, Second Floor

Nashville, TN 37243-0493

James G. White

Assistant District Attorney General

P.O. Box 279

Lawrenceburg, TN 38464

OPINION FILED: __________________

REVERSED AND REMANDED 

GARY R. WADE, PRESIDING JUDGE
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OPINION

The petitioner, Paul Dan Smith, appeals the trial court's denial of postconviction relief. The single issue for review is whether the trial court erred by

concluding that the petitioner had knowingly and voluntarily waived his right to

counsel. We reverse the judgment of the trial court. 

In 1996, the petitioner was indicted on four counts of burglary, three

counts of theft, five counts of contributing to the delinquency of a minor, coercion of

a witness, passing a worthless check, and felony escape. On September 12, 1996,

the petitioner, pro se, entered best interest pleas of guilty to four counts of burglary

and single counts of felony escape and passing a worthless check. For each

burglary conviction, the petitioner was sentenced to six years as a Multiple, Range II

offender. For the felony escape, he received a six-year sentence as a Persistent,

Range III offender. He was required to serve eleven months twenty-nine days for

passing the worthless check. All sentences were to be served concurrently. No fine

was imposed. As a part of the plea agreement, the state dismissed eight other

charges and agreed not to oppose parole.

There was no direct appeal. On October 31, 1996, the petitioner filed

this petition for post-conviction relief, counsel was appointed, and the petition was

amended. The petitioner alleged that his guilty pleas were not knowing and

voluntary, that he was denied the right to counsel, and that his waiver of the right to

counsel was neither knowingly nor voluntarily made.

Just prior to the 1996 guilty pleas, the public defender 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 court
3

appointed another attorney to represent Ms. Smith, leaving the office of the public

defender as the representative of the petitioner. At that point, the petitioner advised

the trial court as follows:

Petitioner: Your Honor, I would like to refuse to have

the Public Defender's office represent me.

Court: Well, you can hire your own lawyer. 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 right to do that.

The trial court provided the petitioner with copies of the indictments and entered not

guilty pleas on his behalf. When the petitioner inquired about a speedy trial, the trial

court set the trial for September 12th, just three days later. On the scheduled trial

date, the pro se petitioner informed the trial court that he had negotiated a plea

agreement with the state. The following colloquy occurred:

Court: I have before me here a waiver of a trial by

jury .... You did sign this waiver, did you?

Petitioner: Yes, sir.

Court: Now, Mr. Smith, you're here without an

attorney and I believe you told me on

Monday that you wanted to represent

yourself; is that right?

Petitioner: That's correct.

Court: Now, you understand that if you want an

attorney and you're unable to employ one,

then the Court will appoint an attorney for

you. Do you understand that?

Petitioner: Yes, sir.

Court: And you want to waive that right and

proceed with this matter on your own

without the assistance of an attorney?

Petitioner: Yes, sir, I do.

Court: All right. 
4

The trial court advised the petitioner of his absolute right to a jury trial

and inquired whether there were promises made or coercive tactics used by the

state to induce the waiver of trial by jury. No such question was asked about the

waiver of counsel. The trial court then declared that the petitioner had freely and

voluntarily waived his right to a jury trial and accepted the petitioner's waiver of the

right to counsel.

The indictments were read, after which the trial judge propounded a

series of questions. The record establishes that the petitioner was thirty-four years

old at the time of his plea and that he had completed twelfth grade. His physical

and mental health were described as good. The petitioner represented to the trial

court that he was not then, nor at the time of the offenses, under the influence of

intoxicants.

The trial court again informed the defendant that he had the right to a

trial and to have an attorney appointed. The petitioner acknowledged these rights. 

The petitioner was advised that his maximum possible penalty for these offenses

was fifty-five years and that he could be fined twenty-five thousand dollars. The

state presented a brief factual basis for the pleas. The petitioner submitted no

additional information. Afterward, the trial court inquired as follows: "[I]f

understanding everything we've talked about here this morning and fully

understanding, would you now want to withdraw your plea to any of these charges?" 

The petitioner replied that he did not; he told the trial judge that he had no other

statements to make and had no questions to ask. The trial court then found that the

pleas were voluntary and knowing, accepted them, and imposed the agreed

sentences. 
5

The record includes a waiver of a jury trial form dated September 12,

1996, which contains the following paragraph: 

I understand that ... if I choose to plead "Not Guilty" the

Constitution guarantees me ... (e) the right to have 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 waiver of the right to appointed counsel was checked and the

form was signed by the petitioner and the trial judge.

On September 25th, thirteen days after the guilty pleas, the trial judge

granted a hearing at the request of the petitioner:

Petitioner: I felt it was injustice. ... What I felt like the

day when I said that I didn't want the public

defender to represent me, what I was

saying is that Mr. Rundy had instructed me

to say that. He said he couldn'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 misunderstood. 

Court: That was on the 9th [of September], and

you stated at that time that you wanted to

represent yourself.

Petitioner: Because, your honor, you 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 represent yourself.... 

Petitioner: Yes, sir, I did.

Court: All right. Tell me about what's happened

that caused you to change your mind ....

Petitioner: I guess I just thought it over. I don't know,

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 years, I guess that's fine. You

all are the Court system. If that's justice to

be served, your honor, I can accept it and
6

do the six years in the State penitentiary or

whatever.

***

State: [The petitioner] wanted to talk with us

regarding his cases prior to the trial so we

had him brought up, and I asked him 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 want an attorney. 

***

If he does not want [the plea] we can let

him withdraw it, get him an attorney, and

have a trial.

***

Court: Didn't the attorney general 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 agree 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 job

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 we need to do

before anything else happens, then I really

need to know what that is now. 

 The way this stands, this will be a ... six

year sentence ... at ... forty-five percent?

Petitioner: Yes, sir.

Court: Now, is there anything that you want to

redo that we did there on September 12th?

Petitioner: No sir, I don't see none. I don't see nothing

but just loading me up and sending 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 you

entered your pleas, we need to redo or

reconsider now.

Petitioner: I suppose not.

At the evidentiary hearing 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 maintained, however, that when he declined the services of the

public defender's office, the trial court had refused to appoint other counsel. He

claimed that he asked to represent himself only because he had no alternative. The

petitioner contended that had he been appointed counsel, he would have been

informed that necessity was a defense to felony escape and that he would not have

pled guilty. He claimed that he did not know the law and had no access to legal

references. The petitioner insisted that his waiver of the right to counsel was 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 entered guilty pleas. He

could not point to a particular right that he did not understand and acknowledged

that prior to accepting his guilty pleas, the trial court had informed him he had the

right to an attorney. The petitioner stated that the reason he did not want an

attorney at the time was because he did not know he needed one. 

The trial judge who accepted the petitioner's guilty pleas testified that

in his eighteen years on the bench, he had never denied a defendant the
8

representation of an attorney. He recalled that the petitioner wanted to represent

himself, requested a speedy trial and then expressed a desire to serve his sentence: 

I got the impression that [the petitioner] just wanted to go

on to the penitentiary .... And we went over this

procedure, again. I recall telling him ... if there's anything

wrong, you need to bring 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 himself was "intelligently made

with full knowledge of his right to counsel." Under our statutory law, the petitioner

bears the burden of proving his allegations by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f). On appeal, the findings 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 evidence

preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978).

When an accused desires to proceed pro se, the trial judge must

conduct an intensive inquiry as to his ability to represent himself. State v.

Northington, 667 S.W.2d 57, 61 (Tenn. 1984). The waiver of the right to counsel

must be knowingly and 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 Supreme Court placed "the serious 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 investigate as long and as thoroughly as

the circumstances of the case before him demand. The
9

fact that an accused may tell him that he is informed of

his right to counsel and desires to waive this right does

not automatically end the judge's responsibility. To be

valid such waiver must be made with an apprehension of

the nature of the charges, the statutory offenses included

within them, the range of allowable punishments

thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter. 

A judge can make certain that an accused's professed

waiver of counsel is understandingly and wisely made

only from a penetrating and comprehensive examination

of all the circumstances under which such a plea is

tendered. 

Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948). Rule 44(a) of the Tennessee

Rules of Criminal Procedure places a similar obligation on the trial court:

Every indigent defendant shall be entitled to have

counsel assigned to represent him in all matters

necessary to his defense and at every stage of the

proceedings, unless he executes a written waiver. 

Before accepting such waiver the court shall first advise

the accused in open court of his right to the aid of

counsel in every stage of the proceedings. The court

shall, at the same time, determine whether there has

been a competent and intelligent waiver of such right by

inquiring into the background, experience and conduct of

the accused and such other matters as the court may

deem appropriate. Any waiver shall be spread upon the

minutes of the court and made a part of the record of the

cause.

See also State v. Gardner, 626 S.W.2d 721, 723 (Tenn. Crim. App. 1981). This

court has recommended that the trial court question a defendant who wishes to

proceed pro se according to the guidelines contained in 1 Bench Book for United

States District Judges 1.02-2 to -5 (3d ed. 1986), also contained in the appendix to

United States v. McDowell, 814 F.2d 245, 251-52 (6th Cir. 1987). State v. Herrod,

754 S.W.2d 627, 630 (Tenn. Crim. App. 1988). For ease of reference, we have

included these guidelines in an appendix to this opinion.

In Northington, our supreme court held that the trial court had "wholly

failed to properly investigate [whether] the defendant understood the consequences
10

of self-representation in light 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 was 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 acceptance of the waiver of the right to counsel. Id.

The trial court had warned Northington that proceeding pro se was unwise. Id. Our

supreme court set aside the conviction because the trial court "failed to diligently

examine the defendant's background 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 Goodwin had validly waived 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 would cause confusion. Id. at 40. Goodwin was informed

that an attorney would be provided for him for pretrial proceedings through an

appeal, if needed. Id. He was warned that he would not have access to a law

library and that his advisory counsel was not required to provide him with

photocopies of relevant legal 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 opportunity to confer with advisory counsel for every question,

and that he was responsible 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 greater right than any other litigant" and that he would be treated the same

as if he were represented by counsel. The trial court is not required to interrupt the

trial to explain procedural rules, legal terms, or consequences of the litigant's
11

actions. Id. This court held that Goodwin "clearly understood the hazards of

representing himself." Id. 

Here, the inquiry was not nearly as extensive and there were no

warnings of the pitfalls of self-representation. The trial court accepted the

petitioner's waiver of counsel without asking about the defendant's background,

education, or experience with the court system. While the trial 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 trial

court did not ask whether he understood available defenses or the range of possible

punishments or fines he might face, if convicted. Most importantly, the trial court

failed to warn the petitioner that self-representation was "unwise." The petitioner

was not advised that he would be held to the same standards as an attorney trained

in the law or that he would 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 with appointed counsel, the trial judge still had not

explained to the petitioner why he should have counsel and what he risked by

refusing appointed counsel. 

The state argues that the petitioner was given an opportunity to

withdraw his pleas and proceed to trial with appointed counsel on September 25th,

some thirteen days after entering his pleas and receiving his sentence. Because the

petitioner declined that offer, the state contends, he should not be entitled to relief. 

In State v. Duane A. Peters, C.C.A. No. 03C01-9112-CR-00382, slip

op. at 1 (Tenn. Crim. App., at Knoxville, 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 because

there was no compliance with the mandates of Northington or Rule 44, Tenn. R.

Crim. P. Id., slip op. at 3-4. The state argued 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 to protect the rights of the accused. 

The accused goes to trial without counsel. Upon appeal

he raises the denial of counsel as a basis for a new trial. 

Are we to deny relief 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 denial of

counsel prejudicial and the right to counsel mandatory

unless properly waived.

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

By insisting on a speedy trial and self-representation, 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 his convictions and cited

his own folly as grounds therefor. Ordinarily, this court would have little desire to

address such a grievance. Yet the right to counsel issue has not been waived or

previously determined. Tenn. Code Ann. § 40-30-206(g), (h). Technically, the

petitioner did not fail in the September 25th proceeding to present his waiver of

counsel issue. There was no ruling on the merits. Thus, there is no procedural bar. 

Under the existing guidelines, the inquiry by the trial court should have

been more extensive. The failure to warn of the specific dangers of selfrepresentation is the area of primary concern. That the petitioner had prior offenses

suggests he had some previous knowledge of and experience with the criminal
13

justice system. Nonetheless, the importance of an extensive inquiry is emphasized

by the content of the appendix. In our view, the evidence in the record

preponderates against the trial court's finding that the waiver of the right to counsel

by the petitioner was knowingly made. See Brooks, 756 S.W.2d at 289.

Accordingly, the judgment of the trial court is reversed. The

convictions are set aside and the causes are remanded to the trial court for the

appointment of counsel and a new trial.

__________________________________

Gary R. Wade, Presiding Judge

CONCUR:

________________________________

Thomas T. Woodall, Judge

________________________________

Curwood Witt, Judge
14

APPENDIX

The following excerpt is from United States v. McDowell, 814 F.2d 245, 251-52 (6th

Cir. 1987) (quoting Guideline[s] For District Judges from I Bench Book for United

States District Judges 1.02-2 to -5 (3d ed. 1986)):

When a defendant states that he wishes to represent himself, you

should ... ask questions similar to the following:

(a) Have you ever studied law?

(b) Have you ever represented yourself or any other defendant in a

criminal action?

(c) You realize, do you not, that you are charged with these crimes: 

(Here state the crimes with which the defendant is charged.)

(d) You realize, do you not, that if you are found guilty of the crime

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 you as much as $__? 

(Then ask him a similar question with respect to each other crime with

which he may be charged in the indictment or information.)

(e) You realize, do you not, that if you are found guilty of more than

one of those crimes this court can order that the sentences be served

consecutively, that is, one after another?

(f) You realize, do you not, that if you represent yourself, you are

on your own? I cannot tell you how you should try your case or even

advise you as to how to try your case.

(g) Are you familiar with the [Tennessee] Rules of Evidence?

(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 your testimony by asking questions of

yourself? You cannot just take the stand and tell your story. You must

proceed question by question through your testimony.
15

(l) (Then say to the defendant something to this effect):

I must advise you that in my opinion you would be far better defended

by a trained lawyer than you can be by yourself. I think it is unwise of

you to try to represent yourself. You are not familiar with the law. You

are not familiar with court procedure. You are not familiar with the

rules of evidence. I would strongly urge you not to try to represent

yourself.

(m) Now, in light of the penalty 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 right to be

represented by a lawyer?

(n) Is your decision entirely voluntary on your part?

(o) If the answers to the two preceding questions are in the

affirmative, [and in your opinion the waiver of counsel is knowing and

voluntary,] you should then say something to the following effect:

"I find that the defendant has knowingly and voluntarily waived his right

to counsel. I will therefore permit him to represent himself."

(p) You should consider the appointment of standby counsel to

assist the defendant and to replace him if the court should determine

during trial that the defendant can no longer be permitted to represent

himself.

(Final alteration in original).