FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
January 31, 2013
In the Court of Appeals of Georgia A12A2022. GIBSON v. THE STATE.
BOGGS, Judge.
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 his staff could schedule a date for his return for the restitution hearing. Sentence was entered accordingly. At the
restitution hearing, Gibson’s counsel was present, but Gibson did not appear. Counsel
provided no explanation or excuse for the absence of her client.
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 decision in
Williams v. State, 311 Ga. App. 152, 154 (2) (715 SE2d 440) (2011). In Williams, a
restitution hearing was held in the absence of the appellant, but her counsel was
2 present. Id. at 153. We assumed without deciding that a restitution hearing is a
“critical stage of proceedings” requiring the presence of the defendant, id. at 154, and
concluded that because counsel was given notice of the restitution hearing and
counsel offered no explanation for Williams’ absence, “the trial court was entitled to
presume that Williams voluntarily chose not to attend the hearing, thus waiving her
confrontation rights.” (Citations and footnotes omitted.) Id. at 155.
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, 175
Ga. App. 269, 270 (333 SE2d 152) (1985). But the cases cited by Gibson involve the
absconding of a defendant prior to trial, when jeopardy had not yet attached. Id.;
compare Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849) (1993)
3 (defendant failed to appear on second day of trial). Here, Gibson had entered a plea
of guilty and jeopardy had attached. OCGA § 16-1-8 (a) (2); Terrell v. State, 236 Ga.
App. 163, 165 (511 SE2d 555) (1999). The trial court did not err by proceeding with
the restitution hearing in Gibson’s absence.
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, 280 Ga. 885, 886 (635 SE2d
138) (2006). In Golden v. Newsome, 755 F2d 1478, 1481 (11th Cir. 1985), upon
which our Supreme Court relied in Robertson,1 the Eleventh Circuit considered the
appeal of a Georgia habeas corpus proceeding. The court held that the petitioner’s
sentencing was fundamentally unfair because he was denied his right to be
represented by counsel at the proceeding, even though he was a fugitive from justice
at the time. Golden, supra, 755 F2d at 1484. See also Ga. Const. Art. I, § I, Para. XII
1 See Perez v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008) (“The decisions of the Eleventh Circuit are not binding on this Court, but they are persuasive authority. [Cit.]”)
4 (“No person shall be deprived of the right to prosecute or defend, either in person or
by an attorney, that person’s own cause in any of the courts of this state.” (Emphasis
supplied.))
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, 291 Ga. App. 86, 92 (1) n.7 (660 SE2d 822)
(2008).
“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 So. 3d 1104, 1107 (Fla.
Dist. Ct. App. 2009). See also Bargeron v. State, 895 So. 2d 385, 387 (Al. Crim. App.
2004); State v. Guadagni, 218 Ariz. 1, 7 (178 P.3d 473) (2008); Long v. State, 2009
5 Ark. App. 97 (2009 Ark. App. LEXIS 77, decided February 18, 2009) (unpublished)2;
People v. Cain, 82 Cal. App. 4th 81, 87 (I) (97 Cal. Rptr. 2d 836) (2000); State v.
Alspach, 554 N.W.2d 882, 883 (II) (Iowa 1996); State v. Muhammed, 250 P.3d 844
(Kan. App. 2011) (unpublished); State v. Sabby, 2011 Minn. App. Unpub. LEXIS 333
(Case Nos.
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FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
January 31, 2013
In the Court of Appeals of Georgia A12A2022. GIBSON v. THE STATE.
BOGGS, Judge.
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 his staff could schedule a date for his return for the restitution hearing. Sentence was entered accordingly. At the
restitution hearing, Gibson’s counsel was present, but Gibson did not appear. Counsel
provided no explanation or excuse for the absence of her client.
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 decision in
Williams v. State, 311 Ga. App. 152, 154 (2) (715 SE2d 440) (2011). In Williams, a
restitution hearing was held in the absence of the appellant, but her counsel was
2 present. Id. at 153. We assumed without deciding that a restitution hearing is a
“critical stage of proceedings” requiring the presence of the defendant, id. at 154, and
concluded that because counsel was given notice of the restitution hearing and
counsel offered no explanation for Williams’ absence, “the trial court was entitled to
presume that Williams voluntarily chose not to attend the hearing, thus waiving her
confrontation rights.” (Citations and footnotes omitted.) Id. at 155.
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, 175
Ga. App. 269, 270 (333 SE2d 152) (1985). But the cases cited by Gibson involve the
absconding of a defendant prior to trial, when jeopardy had not yet attached. Id.;
compare Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849) (1993)
3 (defendant failed to appear on second day of trial). Here, Gibson had entered a plea
of guilty and jeopardy had attached. OCGA § 16-1-8 (a) (2); Terrell v. State, 236 Ga.
App. 163, 165 (511 SE2d 555) (1999). The trial court did not err by proceeding with
the restitution hearing in Gibson’s absence.
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, 280 Ga. 885, 886 (635 SE2d
138) (2006). In Golden v. Newsome, 755 F2d 1478, 1481 (11th Cir. 1985), upon
which our Supreme Court relied in Robertson,1 the Eleventh Circuit considered the
appeal of a Georgia habeas corpus proceeding. The court held that the petitioner’s
sentencing was fundamentally unfair because he was denied his right to be
represented by counsel at the proceeding, even though he was a fugitive from justice
at the time. Golden, supra, 755 F2d at 1484. See also Ga. Const. Art. I, § I, Para. XII
1 See Perez v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008) (“The decisions of the Eleventh Circuit are not binding on this Court, but they are persuasive authority. [Cit.]”)
4 (“No person shall be deprived of the right to prosecute or defend, either in person or
by an attorney, that person’s own cause in any of the courts of this state.” (Emphasis
supplied.))
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, 291 Ga. App. 86, 92 (1) n.7 (660 SE2d 822)
(2008).
“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 So. 3d 1104, 1107 (Fla.
Dist. Ct. App. 2009). See also Bargeron v. State, 895 So. 2d 385, 387 (Al. Crim. App.
2004); State v. Guadagni, 218 Ariz. 1, 7 (178 P.3d 473) (2008); Long v. State, 2009
5 Ark. App. 97 (2009 Ark. App. LEXIS 77, decided February 18, 2009) (unpublished)2;
People v. Cain, 82 Cal. App. 4th 81, 87 (I) (97 Cal. Rptr. 2d 836) (2000); State v.
Alspach, 554 N.W.2d 882, 883 (II) (Iowa 1996); State v. Muhammed, 250 P.3d 844
(Kan. App. 2011) (unpublished); State v. Sabby, 2011 Minn. App. Unpub. LEXIS 333
(Case Nos. A10-825, A10-1397, decided April 12, 2011); State v. Perkins, 2011 Ohio
3129 at ¶ 8 n.1 (Ohio Ct. App. 2011); State v. Phillips, 235 Or. App. 646, 653 (234
P.2d 1030) (2010), modified, 236 Or. App. 465 (236 P.3d 789) (2010); State v.
Cabrera, 2007 UT App. 194 at ¶ 14 (II) (163 P.3d 707) (2007).
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, 280 Ga. at 886; Golden, supra, 755 F2d at
1484 n.9. But here, the trial court took evidence and exercised its discretion at a
2 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, Inc. v. State of Georgia, 316 Ga. App. 727, 736 (2) (730 SE2d 430) (2012).
6 separate hearing to set the amount of restitution. Gibson has enumerated specific
issues with regard to the amount of restitution which his counsel was prevented from
asserting on his behalf. The trial court’s action in determining the amount of
restitution was part of Gibson’s sentencing and was not “purely ministerial,” and the
hearing was thus a critical stage of proceedings at which Gibson was entitled to
representation by counsel.
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, 466 U. S. 648, 654 (II) (104 SC 2039, 80 LE2d
657) (1984). And effective representation requires that counsel “subject the
prosecution’s case to meaningful adversarial testing.” (Citation, punctuation, and
footnote omitted.) State v. Heath, 277 Ga. 337, 338-339 (588 SE2d 738) (2003),
citing Cronic, supra. Prohibiting counsel from cross-examining the witness and from
making argument prevents any meaningful challenge to the State’s case, and in such
circumstances the mere presence of counsel does not amount to representation.
The State also conflates Gibson’s right to representation by counsel at the
restitution hearing with the Sixth Amendment right of confrontation, which is
7 personal to the accused and may be waived.3 But waiver of the right of confrontation
does not foreclose the right to representation by counsel. In Winfield, supra, although
Winfield “waive[d] the right to be present during trial proceedings by voluntarily
absenting himself from the court, [cit.]” Winfield’s counsel continued to conduct the
trial and cross-examine witnesses. 210 Ga. App. at 850-851. Compare Anderson v.
State, 238 Ga. App. 866, 873 (3) (519 SE2d 463) (1999), in which Anderson acted
as his own attorney and waived his right to cross-examine a State witness when he
“voluntarily absent[ed] himself from the proceedings. [Cit.]”
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. Doyle, P. J. and
Andrews, P. J., concur.
3 The State cites Pearce v. State, 256 Ga. App. 889, 891 (2) (570 SE2d 74) (2002), for this proposition, but there we expressly did not consider the question because Pearce waived it by failure to object at trial.