In the Supreme Court of Georgia

Decided: November 23, 2021

S21A0957. THE STATE v. HOUSTON. 

 PETERSON, Justice.

The State is appealing a grant of habeas relief to Aaron 

Saunders Houston, who pleaded guilty to three misdemeanor DUI 

counts. The habeas court vacated the convictions entered on those 

pleas on the basis that the pleas were tendered without the 

assistance of counsel and without Houston being advised of his right 

to counsel, and that Houston did not knowingly and voluntarily 

waive his right to counsel. The State argues that the habeas court 

erred because Houston did not produce sufficient evidence that his 

waiver of counsel was not knowing and voluntary. Because the 

habeas court did not clearly err in concluding that Houston was not 

advised of his right to counsel at the plea hearing, thereby 

precluding an express waiver of that right, we affirm. 
2

1. Background.

Houston was charged with DUI and various related charges in 

three cases arising from three separate incidents occurring in 2014, 

2015, and 2017. Houston, who apparently was not deemed to be 

indigent (and does not claim indigence on appeal), retained an 

attorney to represent him in two of the cases but did not obtain 

representation for the third case. Houston started the evaluation 

process for DUI Court, but before his evaluation was completed, his 

lawyer filed a motion to withdraw from representation, which was 

granted in April 2018. A jury calendar for all three cases was 

scheduled for June 2018, but was reset at Houston’s request to allow 

him to hire a new attorney and complete the DUI Court assessment. 

Houston failed to appear at the rescheduled hearing. In February 

2019, the three cases were again reset to allow Houston to complete 

the DUI Court evaluation and hire a new attorney. After Houston 

completed the DUI Court evaluation and orientation, his cases were 

transferred to DUI Court, and on June 25, 2019, he appeared at a 

DUI Court plea calendar. 
3

At the start of his plea hearing, Houston told the trial court, “I 

request that I get counsel because I need to find . . . some help in 

this matter.” Houston stated that he had received a written copy of 

the State’s sentencing recommendation only that day, although the 

assistant solicitor who represented the State at the plea hearing had 

described it to him during a telephone conversation on the day before 

the hearing. Houston told the trial court that he “wanted to read [the 

sentencing recommendation] tomorrow” to “look at it for what I am 

charged so I have a better understanding and how would a person 

go about this.” He added, “[M]y professional career is going in the 

right direction and I just don’t want it to impede that.” After the trial 

court explained that the DUI Court requirements would certainly 

get in the way of his work and social life, Houston indicated that his 

concern was not so much about the program requirements as it was 

about serving the jail time that would be required under the State’s 

recommendation, because he wanted to keep his job. The trial court 

responded, 

. . . I’ve got some other cases. You can have a seat, Mr. 
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Houston, but I’m not resetting your case. If you decide 

you’re not going to do it, you will go back to [State Court] 

Judge Dixon[’s] trial calendar and if you enter a plea there 

I’ll do whatever the recommendation [is] without the DUI 

Treatment Court. You have had plenty of time to think 

about this and you know what’s coming up and I’m not 

resetting it today, Mr. Houston. But, you know, we can 

talk and if you have questions I’m happy to be here and 

talk about it with you.

The hearing transcript reflects that there was then a break in the 

proceedings lasting about an hour and a half, during which Houston 

“talked to some courtroom personnel, including public defenders[.]”1

When proceedings resumed, the State recited the basis for the 

charges and made its sentencing recommendations to the trial court. 

The trial court asked Houston if he was “able to read, write, and 

understand the English language” and whether he read the plea 

statement forms in each case; Houston responded in the affirmative. 

The record shows that Houston signed three identical guilty plea 

statement forms, one for each case. He put his initials next to the 

pre-printed word “YES” in response to the question on the forms that 

 1 As the habeas court found, however, the record contains no indication 

that a lawyer represented Houston when he subsequently tendered his pleas.
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asked whether he understood that by pleading guilty he was giving 

up certain rights. That question listed rights that generally come 

with a trial, such as the right to cross-examine witnesses. It included 

“the right to assistance of an attorney hired by you, or of a courtappointed lawyer if you cannot afford to hire one and if there is a 

real possibility that you would be incarcerated if convicted, or if you 

fail to comply with any conditions of your sentence[.]”

The trial court also asked Houston if he had any questions 

about his rights; Houston said that he did not. When the trial court

gave Houston the opportunity to ask questions, he asked only about 

serving his custodial sentence, including whether he could serve it

on weekends and whether he would get credit for time served. 

Houston then pleaded guilty to a DUI count (per se or less safe) in 

each of the three cases, as well as a charge of driving with a 

suspended license; the other charges were nolle prossed. As Houston 

entered each guilty plea, the trial court found that the plea was

“willingly, knowingly, and intelligently entered.” Giving Houston 

credit for time served, the trial court sentenced Houston to serve an 
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additional ten days in jail, along with probation, fines, and 

community service.

Approximately two months later, Houston, through counsel, 

filed a habeas petition, alleging that his Sixth Amendment right to 

counsel had been violated because the trial court denied his request 

for counsel, and that his right to due process had been violated 

because the trial court did not apprise him of his rights, including 

the right to counsel, the right to the presumption of innocence, the 

right to require the State to prove his guilt beyond a reasonable 

doubt, the right to confront witnesses, and the right to call witnesses 

at trial. At a habeas hearing, the assistant solicitor, who was the 

sole witness, testified that he spoke with Houston during the hourand-a-half break at the plea hearing, answered his general 

questions about DUI Court, and advised him that if he did not want 

to enter a guilty plea that day, his case would be sent back to the 

State Court judge. The solicitor said that Houston was “adamant 

that he wanted to resolve all three cases that day.” The solicitor also 

testified that public defenders routinely speak with pro se 
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defendants, and review their plea paperwork, “as a courtesy of the 

court,” and that it was his recollection that Houston spoke to a public 

defender in the courtroom on the day that he entered his guilty plea, 

although the solicitor could not recall which public defender was on 

duty that day.2

In a one-page order, the habeas court granted Houston’s 

petition and vacated his convictions, concluding that “the evidence 

establishes that [Houston] tendered a plea without the assistance of 

counsel and was not advised of his right to counsel” and “[u]nder 

such circumstances there can have been no knowing and voluntary 

waiver of the right to counsel.”

2. Analysis.

The petitioner bears the burden of proof in a habeas 

proceeding. See Holt v. Ebinger, 303 Ga. 804, 807 (814 SE2d 298)

(2018); see also Iowa v. Tovar, 541 U.S. 77, 92 (124 SCt 1379, 158 

LE2d 209) (2004) (“[I]n a collateral attack on an uncounseled 

 2 The habeas court made a finding that Houston “may have spoken to a 

public defender[.]”
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conviction, it is the defendant’s burden to prove that he did not 

competently and intelligently waive his right to the assistance of 

counsel.”); Kennedy v. Hines, 305 Ga. 7, 9 (2) n.2 (823 SE2d 306) 

(2019) (contrasting habeas petitioner’s burden of demonstrating 

that a guilty plea was not voluntary, knowing, and intelligent with 

State’s burden to show the opposite on direct appeal). “In reviewing 

the grant or denial of a petition for habeas corpus, this Court accepts 

the habeas court’s factual findings and credibility determinations 

unless they are clearly erroneous, but we independently apply the 

law to the facts.” Dozier v. Watson, 305 Ga. 629, 629-630 (827 SE2d 

276) (2019).

A defendant has a Sixth Amendment right to the assistance of 

counsel at his plea hearing. See Tovar, 541 U.S. at 81 (“The entry of 

a guilty plea, whether to a misdemeanor or a felony charge, ranks 

as a ‘critical stage’ at which the right to counsel adheres.”); Jones v. 

Terry, 279 Ga. 623, 624 (619 SE2d 601) (2005) (“The Sixth 

Amendment right to counsel in a criminal prosecution 
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unquestionably extends to a plea hearing.”).3 For a defendant’s 

express waiver of the Sixth Amendment right to counsel to be valid, 

the waiver must be “knowing, voluntary, and intelligent[.]” Tovar, 

541 U.S. at 87-88. “The law ordinarily considers a waiver knowing, 

intelligent, and sufficiently aware if the defendant fully understands 

the nature of the right and how it would likely apply in general in 

the circumstances — even though the defendant may not know the 

specific detailed consequences of invoking it.” Id. at 92 (citation and 

punctuation omitted). Whether a defendant is capable of making a 

knowing and intelligent decision “will depend on a range of casespecific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the charge, 

and the stage of the proceeding.” Id. at 88.4 The determination of 

 3 To be clear, this case does not involve a claim of denial of the right to 

appointed counsel. But both the Sixth Amendment and Paragraph XIV of 

Article I, Section I of the Georgia Constitution guarantee the right to 

representation by counsel of choice. See Hill v. State, 269 Ga. 23, 23-24 (2) (494 

SE2d 661) (1998).

4 Houston appears to argue that the trial court should have held a 

hearing pursuant to Faretta v. California, 422 U.S. 806, 835 (95 SCt 2525, 45 

LE2d 562) (1975), to determine whether he was competent to represent himself 

at his plea hearing. But a Faretta inquiry is not required at the guilty plea 

phase. See Tovar, 541 U.S. at 88-94; Parks v. McClung, 271 Ga. 795, 798 (524 
10

whether a defendant is capable of making a knowing waiver of his 

right to counsel is a factual determination that we accept on appeal 

unless it is clearly erroneous. See Brown v. State, 259 Ga. 453, 454 

(2) (b) (383 SE2d 882) (1989); cf. Young v. State, 309 Ga. 529, 535 (2) 

(a) (847 SE2d 347) (2020) (“A trial court’s decision as to whether a 

defendant made a knowing and intelligent waiver of his Miranda

rights will not be disturbed on appeal unless clearly erroneous.” 

(citation and punctuation omitted)).

Here, the habeas court did not clearly err in concluding that 

Houston did not make an express waiver of the right to counsel at 

his plea hearing that was knowing and voluntary. On the contrary, 

he specifically requested an attorney to help him at the beginning of 

his plea hearing. Nowhere in the transcript of the change-of-plea 

hearing does the trial court inform Houston that he had a right to 

counsel at that hearing.

The State’s arguments largely amount to a challenge to the 

 

SE2d 718) (1999). At any rate, the trial court’s failure to conduct a Faretta 

hearing was not cited in the habeas court’s order as a basis for its grant of 

relief.
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habeas court’s factual determination that Houston was not informed 

that he had a right to counsel at the hearing. The State argues that 

forms signed by Houston support a conclusion that he was informed 

of his right to counsel. Houston did sign a set of guilty plea 

statement forms that, among other things, informed him of his right 

to counsel and that he was waiving that right by pleading guilty.5

But given the context in which the question about his understanding 

that he was giving up the right to counsel by pleading guilty appears 

on the forms — in a list of certain rights that come with a trial —

Houston’s completion of the forms at most evidences his awareness 

that he was giving up the right to have counsel represent him at 

trial. His completion of the forms does not demonstrate that he knew 

that he had a right to counsel at the plea hearing. Compare Jones, 

279 Ga. at 624 (“[I]t is undisputed that Jones was not informed in 

 5 The habeas court stated in its order that “the document the Petitioner 

reviewed and or signed is not part of the record before this Court.” This was 

incorrect; the guilty plea statement forms discussed herein in fact were 

admitted as evidence at the habeas hearing and appear in the appellate record, 

and Houston addresses the forms in his brief to this Court without raising any 

suggestion that they are not part of the habeas record.
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any fashion, whether scripted or non-specific, about his right to 

counsel during his plea in this case. Any arguments based on the 

facts that Jones signed a generalized waiver form and was 

instructed he had a continued right to counsel during a jury trial do 

not change this result.”); and Fullwood v. State, 290 Ga. 335, 336

(720 SE2d 642) (2012) (generalized waiver form and court’s 

explanation that defendant had a right to counsel at trial were 

insufficient to show that court informed defendant about his right to 

counsel during his plea hearing); with Parks v. McClung, 271 Ga. 

795, 796, 798 (524 SE2d 718) (1999) (knowing, intelligent, and 

voluntary waiver of right to counsel at plea hearing demonstrated 

by extrinsic evidence that petitioners signed or initialed a waiver 

form that not only detailed the trial rights that they were giving up 

by pleading guilty, but also included a separate statement, signed 

by the petitioners, that said, “I do not desire a lawyer, appointed or 

employed, and waive the right to have an appointed or employed 

lawyer to represent me”), overruled on other grounds by Barnes v. 

State, 275 Ga. 499, 502 & n.19 (3) (570 SE2d 277) (2002). Given that 
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the forms signed by Houston did not include an advisement that a 

defendant has a right to a lawyer when pleading guilty, the State’s 

suggestion in its briefing that a public defender likely reviewed that 

paperwork with Houston is beside the point.

The State also points to evidence that Houston could have 

elected not to enter DUI Court and asked for his cases to be reset 

before a different judge, arguing that this shows that Houston was 

not “forced” to enter a guilty plea without the benefit of counsel. But 

this misapprehends the basis for the grant of habeas relief — that 

Houston entered his guilty pleas without being apprised of his right 

to counsel, not that he was somehow left with no choice but to plead 

guilty on the day that he did. And the State’s suggestion that 

Houston requested an attorney merely to review the State’s 

sentencing recommendation, and achieved that goal when he spoke 

to a public defender on a break and had his concerns addressed by 

the trial court, rests on speculation and fails to appreciate that 

Houston was not in fact represented by counsel when he entered his 

guilty pleas.
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Finally, the State speculates that the habeas court was

influenced by the arguments of Houston’s counsel at the habeas 

hearing that, even in defending against Houston’s habeas petition,

the State bore the burden of establishing that Houston’s various 

rights were not freely, knowingly, and voluntarily waived. But 

although the habeas court’s order does not clearly state who bears

the burden of proof in the proceeding, there is nothing in the order 

indicating that the court misapprehended the petitioner’s burden in 

that regard. Moreover, Houston’s counsel indicated at the habeas 

hearing that he thought the habeas court actually did not accept his 

argument about who bore the burden. Although the habeas court’s 

order is brief, it contains written findings of fact and conclusions of 

law upon which the judgment is based, and the State does not argue 

that the order fails to comply with OCGA § 9-14-49. Given a lack of 

evidence to the contrary, we assume that the habeas court applied 

the proper legal standard. See State v. Abbott, 309 Ga. 715, 719 (2) 

(848 SE2d 105) (2020) (“Trial judges too are presumed to know the 

law and apply it in making their decisions, absent some indication 
15

in the record suggesting otherwise.” (citation, punctuation, and 

emphasis omitted)).

On this record, we cannot conclude that the habeas court 

clearly erred in making any of its key factual determinations — that 

Houston entered a guilty plea without counsel, that Houston was 

not advised that he had a right to counsel at that proceeding, and

that, therefore, Houston did not knowingly waive that right. The 

State thus has not shown a basis to reverse the grant of habeas relief 

to Houston.6

 6 We recognize that a non-indigent defendant may be allowed to proceed 

without a lawyer even when he does not expressly waive his right to counsel. 

A defendant may validly elect to represent himself by waiving his right to 

counsel expressly, but he also may be required to proceed without counsel 

where he functionally waives his right to counsel. See Allen v. Daker, 311 Ga. 

485, 497 (2) (858 SE2d 731) (2021) (citation omitted). “A non-indigent 

defendant may functionally waive the right to counsel by failing to retain 

counsel with reasonable diligence, and regardless of indigency, a defendant 

may functionally waive the right to counsel by engaging in dilatory tactics.” Id. 

at 497-498 (2) (citations omitted). Where a non-indigent defendant has not 

invoked his right to self-representation and has failed to hire an attorney to 

represent him, “whether he validly waived his right to counsel does not turn 

upon whether he knowingly and intelligently chose to proceed pro se,” but 

rather on whether he “exercised reasonable diligence in securing 

representation.” Id. at 499 (2) (b) (i) (citation omitted). The record in this case 

may have supported a finding of functional waiver by the trial court. But 

neither the trial court nor the habeas court made any finding on the question 

of functional waiver, and the State does not argue to this Court that the habeas

court erred by failing to consider in its order the question of whether Houston 
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Judgment affirmed. All the Justices concur.

 

functionally waived his right to counsel. We thus do not decide that question, 

either.