State v. Houston ( 2021 )

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.
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.
2
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.
4
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 court-
appointed 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 hour-
and-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 case-
specific 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
9
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
5The 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
14
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.
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