### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

uly 18, 2001
OUDON PANYANOUVONG v. STATE OF TENNESSEE Appeal from the Circuit Court for Rutherford County

No. F-49500 J. S. Daniel, Judge

No. M2000-03152-CCA-R3-PC - Filed November 16, 2001

The petitioner, Oudon Panyanouvong, appeals from the dismissal of his petition for post-conviction relief. After the appointment of post-con viction counsel, the petitioner exp ressed dissatisfa ction with his attorney and ultimately refused to proceed with the evidentiary hearing. The issue is whether the trial court's summary dismissal was erroneous. Because the pe titioner was not afforded the opportunity

to proceed pro se and was not sp ecifically admonished of the p

erils of pro se representation, the judgment of di smissal is reverse

d and the cause is

r emande d for further proceedings. Tenn. R. App. P. 3; Judgment of the Trial Court Reversed; Cause Remanded
G ARY R. W ADE , P.J., deliv ered the opinion of the court, in which J OHN E VERETT W ILLI AMS , J., joined. J OSEPH M. T IPTON , J., filed a concurring opinion.
Oudon Panyanouvong, Whiteville, Tennessee, pro se (on appe al); Guy R. Dot son, Sr., Murfreesboro, Tennessee (at trial), for the appellant, Oudon Panyanouvong

. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marn ey, Assistan

t Attorney G

eneral; and Paul A . Holc ombe, III, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On November 16, 1999, the petitioner, Oudo n Panyanouvo ng, entered a p

lea of guilt to seconddegree murder

as a Range II violent offender. A s a part of the agreement, the indictment for felony murder was amended to a charge of second degree murder. A sentence of 40 years was ordered to be served at 100%. Related charges of burglary and misdemeanor

theft were dismissed. The petiti oner also pled guilty to six counts of burglary under a se parate indictment and received Range I, concurrent sentences of three y ears for each

offense. The burglary sentences we re ordered to be served concurrently with the sentence for second de gree murder.
The second degree murder conviction was based up on an inc ident which took place on January 22, 1998, when the petitioner, Tony Miller, and Phone Chomsavanh burglarized the-2-

residenceof the victim, Sanger S tabler. The victim was shot and killed during the course of the bu rgl ary. Both Miller and Chomsavanh acknowledged participation in the Stabler burglary. The petitioner, who is of Laotian origin but who received his formal education in this country , was 16 at the time of the off

ense and 18 at the

time he entered his pleas of guilt. The record indicates that both Miller and Chomsavanh were prepared to testify for the state at the trial of the pe titioner. At the time of his plea, the p etitioner acknow ledged that he w

as armed with a sto

len .380 at the time of the burglary, that he "panicked," a nd that he shot the victim.
On July 31, 2000, approximat ely eight an d one-half months after the guilty pleas, the petitioner filed a petition for post-conviction r

elief contending

, among other thin

gs, that his guilt

y pleas had not been knowingly and voluntarily e ntered and that his trial counsel had been ineffective and had coerced the guilty pleas. The trial court appointed Guy R. Dotson, Sr., to represent the petitioner in t he p ost -con vic tio n pr ocee din g. At tor ney D ots on, who had prev iou sly s erved as Dist rict Attorney General but was in private practice at the time

of these offenses, met with the petitioner and "advised him as to the eviden

ce that would be ne

cessary f or him to p revail." Afterwards, the petitioner informed Attorney Dotson that he did not want him as a lawyer and "that if [the tri al judge did not] appoint him another lawyer, he[] [was] just going to appeal that." Shortly before the sche

duled hearing,

the petitioner fil

ed an affidavit w

hich, among oth

e r things, contained alleg

ations that Attorne

y Dotson was

acting "in con

cert with the state's prosecutor" and had disagreed with his claims of ineffective assistance from his trial counsel. The p etition er specifically

asked for the dismissal of Attorney Dot son and the app oin tme nt o f a s ubs tit ute att orn ey. When qu estioned by the trial court, the petitioner, who was aware that Attorney Dotson had onc e served as District

Attorne y General, said, "I am not proc eeding with this man representing me." Upon further questioning by the trial judge, the petitioner acknowledged that the proceeding might be the only opportunity he would have for post-judgment relief. The following exchange took place: Q. [Trial Judge] [Y]ou don't get to choose your appointed attorney. I appointed an attorney. This is an exper ienced at torney. I'm not appointing any other attorney to represent y

ou. There is

no basis presented to me in fact that gives riseto you not going

forward with y

our petition. I

f you fail to p roce ed t oda y, I' m dismissi ng this petition, and you can take it to the Court of Criminal Appeals.
A. [Petitioner] Your

Honor, I am

not proceeding with this man representing me. Afterward, the trial court dismissed the petition and returned the petitioner to the c

ustody of the

state penitentiary, directing him to "proceed in whatever w ay you desire."
In Douglas v. California

, 372 U.S. 353 (1963), the United States Supreme Court held that the Fourteenth

Amendment to the United States Constitution guarantees an indigent criminal defendant the right to counsel not only at trial but also in the first appeal of right. In Evitts v. Lucey , 469 U.S. 387 (1985), the right to such appellate counsel was held to necessarily e nco mpass the r igh t to the-3-

effective assistance of counsel. This right to trial and appella

te counsel does no

t, however, entit

le a defendant to the c

ounsel of his

choice. Wheat v. United States , 486 U.S. 153 (1988) ; see also State v. Carruthers , 35 S.W.3d 516 (Tenn. 2000).
Our state courts h

ave also ruled that there is no co nstitutional right

to counsel in a postconviction proceeding. See State v. Garrard , 693 S.W.2d 921 (Tenn. Crim. App. 1985). In Coleman
v. Thompson , 501 U.S. 722, 757 (1991), the United States Supreme Court ruled that because there was no right to post-ju

dgment counsel,

attorney e

rror which migh

t have led to

a default of

a habeas corpus claim in state court could not serve to excuse thedefault in a later fe deral habeas proceeding. Our supreme court, in House

v. State , 911 S.W.2d 705, 712 (Tenn. 199 5), reached the

same result, holding that because there was no right to effective post-conviction counsel, the ineffectiveness of counsel in a prior post-conviction proce eding cou ld not be considered in determining the applicability of previous determination and waiver as procedural bars.
Tennessee Code Annotated § 40-30-206(e) authorizes trial courts to appoint counsel in postconviction cases. See also Swanson v. State , 749 S.W.2d 731, 734 (Tenn. 1988) (noting that when a colorable claim i

s presented in

a pro se post-conviction petition, "dismissal without appointment of counsel . . . is rarely proper"). When a petitioner is indigent, he is entitled to an attorne y during the course

of an appeal of an

order denying post-conviction relief. Recor v. State, 489 S.W.2d 64 (Tenn. Crim. App. 1972). As in the case of a pre-conviction proceeding, a post-conviction petitioner is not entitled to

the attorney of

his choice. See Brewer v. State , 4 Tenn. Crim. App. 265, 470 S.W.2d 47, 49 (1970).
An indigent

person is "any

person who does no

t possess sufficie

nt means to pay

reasonable compensation for

the services of a

competent attorn

ey." Tenn. Code Ann. § 40-14- 201(1); State v. Gardner , 626 S.W.2d 721, 723 (Tenn. Crim. App. 1981). Indigen cy e ntitles a post-conviction petitioner to the appointment of counsel. Tenn. Code Ann. § 40-30-215; see also Owens v. State , 908 S.W.2d 923 (Tenn. 1995). The proce dure for the app

ointment before tr

ial as provided in Tennessee Code Annotated §§ 40-14-201 to -210 a pplies to post-conviction proceedings. See Goodner v. State, 484 S.W.2d 364 (Tenn. Crim. App. 1972).
Because there is no constitu

tional right to eit

her counsel or e

ffective counse

l in postconviction proceeding s, t he petitioner's right to counsel has not been abridged by the dismissal of the petition. In Carruthers , our supreme court recognized that a defendant in a criminal ca se ma y involuntary

waive or forfeit his constitutional right to counsel "by utilizing that right to manipulate, delay, or disrupt trial proc

eedings." 35 S.

W.3d at 549. In th

at case, where

in the defendant treated a series of appointed lawyers in an abusive manner, ou r hig h court ruled that the right to counsel "may not be used as a license" to derail the administration of justice. Id. ; see also United States v. Flewitt , 874 F.2d 669 (9 th Cir. 1989); Berry v. Lockhart , 873 F.2d 1168 (8 th Cir. 1989). In United States v. White , 529 F.2d 1390, 1393 (8 th Cir. 1976), the right to counsel was described as "a shield, not a sword."-4-

While one may forfeit the right to counsel by misconduct , this cour t, citing United States v. McDowell , 814 F.2d245 (6 th Cir. 1987), has suggested a specific procedure for those who, absent misconduct

requiring forfeiture, might voluntarily waive a right to counsel and exercise the option of self-representation. See Smith v. State , 987 S.W.2d 871, 875 (Tenn. Crim. App. 1998). During the trial proce ss, ev ery pers on has a cons titu tion al rig ht to repre sent h imsel f. U.S . Cons t. ame nd. VI; Tenn. Cons t. art . I, § 9; Faretta v. Calif ornia , 422 U.S. 806, 818-20 (1975). In State v. Herrod , this court ruled that th

e exercise of the

right of self-r

epresentation is

based upon three

conditions: (1) The defendant mu st timely asse

rt his right to self

-representatio

n; (2) the exercise of the right must be clear and unequivocal; and (3) the defendant must knowingly and intelligently waive his right

to assistance of counsel.
754 S.W.2d 627, 629-30 (Tenn . Crim. App. 1988). A defendant need not have legal training or experience in order to

competently and intelligently elect self -representation. Faretta , 422 U.S. at 835; see generally Smith v. State , 987 S.W.2d 871 (Tenn. Crim. App. 1998).
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 (Tenn. 1984). The waiver of the right to couns

el must be knowing

ly and in tellig ently made.

Tenn. R. Crim. P. 44(a

); State v. Armes , 673 S.W.2d 174, 177 (Tenn. Crim. App. 1984).
In Cole v. State , 798 S.W.2d 261, 263 (Tenn. Crim. App. 1990), this court conc luded that a post-convict ion petiti oner had neither a constitutional right nor a statutory right to selfrepresentation. Yet, this court als o determined that

a supreme court r

ule had by im

plic ation established a "common law rig ht" to self-representation. By virtue of Rule 13(1) of the Tennessee Supreme Court, a post-conviction petitioner "'has a right to be represented by counsel . . . and . . . counsel will be appoi nted . . . if he so desires .'" Cole , 798 S.W.2d at 263 (qu oting Tenn. S. Ct. R. 13(1)). Here, the record esta blishes that the pe

titioner refused

to proceed with his a

ppointed counsel. When a post-conviction petitioner seeks to substitute counsel, he has the burden of establishing to the satisfaction of

the trial judge good and valid reasons for the dismissal of his attorney. Whether to substitute counsel is discretionary with the trial court. State v. Gilmore , 823 S.W.2d 566, 568 (Tenn. Crim. App. 1 991). In this instance, the fact that Attorney Dotson had previously served as a district attorney general (but not at the time

that the petitioner

was prosecuted)

would not be a basis for his dismissal as coun

sel. The record does not indicate any abuse of discretion by the denial of substitution. Moreover, while the recorded e

vidence in

this case may rise to th

e level of absolut

e forfeitureof counsel (whether statutorily or constitutionally based) , the trial court did not explicitly declarethat forfeiture was the consequence and, while the petitioner did not ask to proceed pro se, it did not advise the petitioner of the alternative of self-representation or provide an accompanying-5-

admonition as to the perils of self-representation in a post-convicti

on setting. Under

these specific facts, a rem and is app ropri ate fo r that deter minat ion be fore a n abso lute d ismi ssal i s warr anted . If the petitioner

persists in his view that he will not proceed with his appointed counsel, the trial court should afford him the opp

ortunity to

proceed pro se. If the petitioner refuses to proceed, the petition may be dismissed. I f he choos es to represent himself, he must comply with all relevant rules and statutory guidelines. The

trial judge "is u

nder no obligatio

n to become an 'advocate' for or to assist and guide the pro se

layman through the trial thicket ." United States v. Pinkey , 548 F.2d 305, 311 (10 th Cir. 1977).
Acco rdi ngly, the trial court' s ord er of summary dismissal is reversed and the cause remanded.

___________________________________ GARY R. WADE, PRESIDING JUDGE