Gardner v. StateGardner v. State
This Court granted Charles Gardner’s (“Petitioner”) petition for a writ of certiorari to review the denial, after a hearing, of his application for Post-Conviction Relief (“PCR”). Petitioner argues the PCR court erred in finding he knowingly and intelligently waived his right to counsel. We agree.
Factual/Procedural Background
In February 1995, Petitioner was indicted on two counts: (1) for trafficking over 400 grams of cocaine; and (2) for trafficking over eighty grams of crack cocaine. Pursuant to a рlea agreement, Petitioner plead guilty to trafficking twenty-eight grams or more, but less than 100 grams, of cocaine and to trafficking ten grams or more, but less than twenty-eight grams, of crack cocaine. Petitioner was not represented by counsel at the plea hearing. Pursuant to the State’s recommendation, Petitioner received concurrent 10 year sentences.
In September 1995, Petitioner filed an appliсation for PCR. After a hearing, the PCR judge denied Petitioner relief. Petitioner then petitioned this Court for a writ of certiorari. This Court granted certiorari, and the sole issue before this Court is:
Did the PCR Court err in holding Petitioner knowingly аnd intelligently waived his right to counsel?
Petitioner argues the record does not support the PCR court’s finding that he understood the dangers of self-representation and knowingly and intelligently waived his right to counsel. We agreе.
At the PCR hearing, Petitioner testified he retained an attorney after he was arrested. However, because he was unable to afford the legal fees, the private attorney stopped representing Petitioner. 1 A public defender was never appointed.
Petitioner testified he spoke with Assistant Solicitor Jon Ozmint (“Ozmint”) about his plea. 2 Petitioner stated Ozmint informed him that his bond would be revoked if he refused to plead guilty. According to Petitioner, Ozmint told him he would recommend a seven year sentence, of which he would only have to serve three years, if Petitioner would plead guilty and turn in three other drug dealers. Ozmint admits he discussed a plea with Petitioner, but denied he ever told Petitiоner that his bond would be revoked or that he would only have to serve three years.
Petitioner’s brother, Rick Gardner, also testified at the PCR hearing. He stated Ozmint offered Petitioner a seven year deal and promised him he would only have to spend four years in prison. He later testified Ozmint offered Petitioner a ten year deal and promised he would only spend three years in prison.
On cross-examination, Petitioner admitted Magistrate David Crenshaw
3
informed him at his arraignment that he had a
The PCR court found Petitioner failed to prove that he did not knоwingly and voluntarily waive his right to counsel. In its order, the PCR court stated Petitioner was of above average intelligence. 4 The court further stated the record indicated Petitioner was advised at his arraignment that hе had a right to a public defender. In addition, the court found Petitioner was completely familiar with the court system.
According to the United States Supreme Court, in order to waive the right to counsel, the accused must be (1) advised of his right to counsel
and
(2) adequately warned of the dangers of self-representation.
Prince v. State,
While a specifiс inquiry by the trial judge expressly addressing the disadvantages of a pro se defense is preferred, the ultimate test is not the trial judge’s advice but rather the defendant’s understanding. If the record demonstratesthe defendant’s decision to represent himself was mаde with an understanding of the risks of self-representation, the requirements of a voluntary waiver will be satisfied.
Wroten,
In a PCR action, if the record fails to demonstrate the petitioner made an informed choice to proceed
pro se,
with “eyes open,” then the petitioner did not make a knowing and voluntary waiver of counsel, and the case should be remanded for a new trial.
See Watts v. State,
Because of the absolute failure of the plea judge to ask Petitioner for a waiver and to apprise him of the dangers of appearing
pro se,
as is required by
Faretta,
this Court must look into the record to determine if Petitioner had sufficient background or was apprised of his rights by some other source.
Prince; Wroten
(absent a specific inquiry by the trial court into the hazards of proceeding
pro se,
this Court will examine the record to determine whether the accused was advised of his rights from some other source or had sufficient background to intelligently waive his right to counsel). When determining if аn accused has a sufficient background to understand the dangers of self-representation, the courts consider many factors including: (1) the accused’s age, educational background, and physical and mеntal health; (2) whether the accused was previously involved in criminal trials; (3) whether the accused knew the nature of the charge(s) and of
While there is evidence in the record to indicate Petitioner was aware of his right to counsel, there is insufficient evidence to indicate he was aware of the dangers of sеlf-representation. After weighing the factors above, we find the PCR court erred in finding Petitioner knowingly and intelligently waived his right to counsel.
First, the plea judge did not give Petitioner any warning about the dangers of proceеding pro se. He did not inform him of the nature of the charges or of the possible penalties. Petitioner did have a 12th grade education, and he had been represented by counsel on a previous charge to which he pled guilty. He also had a private attorney when he was first charged. However, the record gives no indication this attorney explained to him the dangers of self-representation. See Wroten (fact that petitioner had spoken with an attorney and fact that he had plead guilty to another charge in 1979 did not sufficiently demonstrate that he was aware of the dangers of self-representation).
Second, althоugh the guilty plea proceeding did not consist merely of
pro forma
questions and answers, the transcript on its face poses several other problems which would indicate the plea itself was not knowing and voluntary. This Court аnd the United States Supreme Court have held that before a court can accept a guilty plea, a defendant must be advised of the federal and state constitutional rights he or she is waiving.
Boykin v. Alabama,
In this case, the plea judge did not even ask Petitioner for an admission of guilt. The transcript also indicates the trial judge did not advise Petitioner of the crucial elements of the charged offenses, or of the possible penalties if the recommended sentence was not accepted by the plea judge. In addition, the trial judge did not ask questions to ensure Petitioner’s understanding of the consequences of his plea. Furthermore, any defect in the court’s questioning was not ciued by the accused conversation with another source, since Petitioner had no attorney.
See State v. Ray,
Conclusion
Based on the foregoing, we REVERSE the PCR court’s order of dismissal and REMAND for a new trial.
Notes
. The record is not clear at what point Petitioner’s private attorney stopped his representation.
. Follоwing the initial dismissal of Petitioner’s PCR application, he filed a petition for a writ of certiorari. This Court issued an order remanding the case back to the PCR judge for a reconstruction of the record from the PCR hearing. The PCR judge then issued a second order finding an additional hearing to reconstruct was unnecessary because the first order was so detailed. Petitioner has not voiced an objection to this order. Accordingly, the testimony discussed comes from the Order of Dismissal.
.Judge Crenshaw also testified at the PCR hearing. He stated it was his usual practice to explain to those who appear before him that they
. The record is unclear whether Petitioner actually graduated from high school. In his application for PCR, he stated he did not have a high school diploma. At his guilty plea hearing, when asked how far he went in school, Petitioner responded, "12th Grade.”