In this appeal, we consider whether a restitution hearing is a “critical stage of proceedings” in which a defendant has a right to counsel. Under the circumstances presented here, we conclude that it is, and we accordingly reverse and remand for a new restitution hearing.
Derrick Gibson pleaded guilty to theft by receiving, theft by taking, theft by deception, falsification of a vehicle identification number, and removal of a vehicle identification number in connection with the theft of a classic Ford Mustang. At the plea hearing, Gibson’s counsel indicated that he was willing to pay restitution, but disagreed with the amount proposed by the State. The trial court accepted the plea and directed that Gibson remain in the courtroom so that court staff could schedule a date for Gibson’s return for the restitution
The victim presented testimony regarding his expenses and damage to the vehicle. When Gibson’s counsel rose to cross-examine, the trial court refused to allow her to cross-examine the witness, produce any evidence, or make argument regarding the amount of restitution in the absence of her client. The trial court observed, “I don’t think you get to challenge without him present, the — essentially, the reasonableness of what he’s asking for.” The trial court concluded, “I’m going to give him everything he’s asking for if your client’s not present.”
An order was entered directing that Gibson pay $1,692 in restitution. From this order Gibson appeals, asserting four enumerations of error. We find that Gibson waived his right to be present in person at the hearing, but he did not waive his right to be represented by counsel in his absence. We accordingly reverse and remand for a new restitution hearing.
1. Gibson’s first enumeration of error is controlled by our recent decisionin Williams v. State,
Here, the trial court at the end of the sentencing hearing gave notice of the restitution hearing not only to Gibson’s counsel but to Gibson himself as well: “You’re not to leave the courtroom today until my staff. .. gives you a date to come back for a restitution hearing.” As in Williams, Gibson’s counsel was present at the restitution hearing, but did not present evidence or state in her place any reason for Gibson’s absence. Gibson therefore waived his right to be present at the restitution hearing. Id.
Gibson attempts to distinguish Williams by asserting that he “failed to appear” rather than “failed to return” to court, citing such decisions as Pollard v. State,
2. The trial court did err, however, in refusing to allow Gibson’s counsel, who was present, to cross-examine the victim on the issues of his expenses and the amount of restitution to which he was entitled, or to present argument on Gibson’s behalf.
Independent of his right to be present, which was waived as noted in Division 1, Gibson is entitled to representation by counsel at any “critical stage of the proceedings,” including sentencing. Robertson v. State,
We therefore must consider the issue that was not reached in Williams, supra: Is a separate restitution hearing a “critical stage of proceedings”? While we have found no Georgia decision directly on point, other states which have considered the question have held that a restitution hearing is part of sentencing and therefore a critical stage at which the defendant is entitled to counsel. Like federal law, these decisions are not in any sense binding precedent, but we may look to them for persuasive reasoning. Smith v. Stewart,
“A criminal defendant is entitled to representation by counsel at all critical stages of the proceeding, including sentencing. This includes any hearing to determine the amount of restitution. [Cits.]” Ritch v. State, 14 S3d 1104, 1107 (Fla. Dist. Ct. App. 2009). See also Bargeron v. State, 895 S2d 385, 387 (Ala. Crim. App. 2004); State v. Guadagni,
After carefully reviewing these decisions, we find the reasoning employed persuasive. We therefore conclude that a separate hearing to determine the amount of restitution to be made part of a defendant’s sentence is a critical stage of proceedings. In some cases an order for restitution is merely a pro forma, ministerial act not requiring the exercise of the court’s discretion, and thus is not a critical stage of the proceedings. See Robertson, supra,
The State argues that Gibson’s right to counsel was satisfied by the physical presence of his attorney at the hearing. But “it has long been recognized that the right to counsel is the right to effective assistance of counsel.” (Citation and punctuation omitted.) United States v. Cronic,
The State also conflates Gibson’s right to representation by-counsel at the restitution hearing with the Sixth Amendment right of confrontation, which is personal to the accused and may be waived.
We therefore reverse and remand this case to the trial court for a new restitution hearing.
3. Gibson’s remaining enumeration of error is rendered moot by our decision in Division 2.
Judgment reversed and case remanded with direction.
Notes
See Perez v. State,
Although this is an unpublished opinion and thus of no precedential value, see Ark. Sup. Ct. & Ct. of App. Rule 5-2 (c), we consider the reasoning of this and other unpublished decisions persuasive, much as we may consider the content of a Georgia Court of Appeals decision despite its lack of precedential value. Amusement Sales v. State of Ga.,
The State cites Pearce v. State,