Desmond Preston v. State
This text of Desmond Preston v. State (Desmond Preston v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
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. http://www.gaappeals.us/rules/
June 12, 2014
In the Court of Appeals of Georgia A14A0028. PRESTON v. THE STATE.
RAY, Judge.
We granted Desmond Preston’s application for interlocutory review of the trial
court’s order denying his out-of-time motion to file pre-trial motions. Preston
contends that he should be allowed to file untimely pre-trial motions because he was
not represented by counsel at arraignment and did not give a valid waiver of counsel.
Because we find that the denial of his motion was not in error, we affirm.
Preston was charged with possession of marijuana, less than an ounce (OCGA
§ 16-13-30 (j) (1)), and driving under the influence (OCGA § 40-6-391 (a) (2)). On
February 6, 2013, Preston appeared pro se for his arraignment before the trial court.
He signed an “Appearance, Plea and Waiver” form, in which he pled not guilty and
indicated that he wished to apply for the services of a public defender. Preston was disqualified from receiving assistance of appointed counsel for financial reasons.
Preston also signed a document titled “Arraignment Instructions,” which further
advised him of his rights and the importance of having an attorney. Preston told the
trial court that he intended to hire an attorney, but did not have one at the
arraignment. During Preston’s arraignment, the trial court informed him that he had
10 days to file any motions in his case or else his right to file pre-trial motions would
be waived, and that he “really need[ed] to get a lawyer hired in the next ten days”
because “DUI[s] and drug cases are the kinds of cases that lawyers like to file
motions in.” The trial court further entered an order granting him 10 days after
arraignment in which to file pre-trial motions.
Preston was arraigned on February 6, 2013, but his attorney did not make an
entry of appearance until April 16, 2013, long after the 10-day period in which to file
pre-trial motions had expired. Preston even appeared pro se at his first trial calendar
on March 12, 2013, and the trial court continued his case to a later calendar so that
he could procure counsel for trial. On April 16, 2013, Preston’s counsel filed a notice
of appearance, along with a motion to suppress, motion for discovery, motion for a
jury trial (which Preston had previously waived at his arraignment), and a motion to
allow out-of-time filing of motions. The trial court continued the case to May 7, 2013,
2 for a hearing on Preston’s motion to allow motions and his motion for a jury trial. At
the hearing, Preston provided no explanation as to why he was unable to hire counsel
to file pre-trial motions within the 10-day window. The trial court granted the motion
for trial by jury, but denied Preston’s out-of-time motion to file pre-trial motions,
citing its prior notice to Preston of the 10-day limit in which to file motions after
arraignment. The trial court issued a certificate of immediate review, and this appeal
ensued.
OCGA § 17-7-110 provides that “[a]ll pretrial motions, including demurrers
and special pleas, shall be filed within ten days after the date of arraignment, unless
the time for filing is extended by the trial court.” In the instant cast, Preston argues
that the trial court erred in denying his motion to allow motions because he was
arraigned without the benefit or counsel or a valid waiver of counsel. We disagree.
Citing to Ledford v. State, 247 Ga. App. 885 (545 SE2d 396) (2001), Preston
argues that a defendant’s right to counsel extends to arraignment proceedings and that
he did not knowingly waive his right to counsel. In Ledford, this Court held that a
defendant’s right to counsel attaches
at the pleading stage of the criminal process and clearly extends to arraignment. Arraignment is a critical stage in a criminal prosecution in
3 this state not only because the defendant must enter a plea, but also because USCR 31.1 mandates that pre-trial motions be filed at or before arraignment. A defendant who lacks a lawyer at arraignment may not be aware of or capable of meeting USCR 31.1’s deadline, and . . . risks forfeiting the right to file important pre-trial motions.
(Footnotes omitted.) Id. at 886. In Ledford, this Court held that the trial court abused
its discretion in ruling that a defendant waived her right to counsel when she appeared
at arraignment pro se and the trial court did not ask defendant “why she was
appearing pro se, whether she wanted a lawyer, or whether she could afford one.” Id.
at 887. Further, “no one informed [the defendant] that by entering a plea at
arraignment she was waiving her right to file pre-trial motions [and] [t]his was
especially critical in her case because she unknowingly waived the right to file a
motion to suppress.” (Footnotes omitted.) Id. at 887.
Ledford is distinguishable from the present case, however. After Ledford,
USCR 31.1 was amended to provide that “[a]ll motions, demurrers, and special pleas
shall be made and filed at or before the time set by law unless time therefor is
extended by the judge in writing prior to trial.” Further, our legislature passed OCGA
§ 17-7-110 in 2003, amending former USCR 31.1’s deadline by granting defendants
a period of 10 days after arraignment in which to file motions. These changes mean
4 that defendants no longer waive their right to file pre-trial motions by being arraigned
prior to obtaining counsel. Thus, unlike the defendant in Ledford, Preston did not
waive his right to file pre-trial motions simply by appearing for arraignment pro se.
Further, unlike the defendant in Ledford, who was not asked at arraignment why she
was appearing pro se, whether she wanted a lawyer, or whether she could afford one,
Preston informed the trial court that he intended to hire counsel. He was also
repeatedly told by the trial court of the importance of obtaining an attorney and of the
10-day deadline in which to file pre-trial motions or else his right to do so would be
waived. Preston also signed documents which stated that he “fully understood the
Judge’s instructions and what my rights are.” He also signed documents advising him
of his rights and the importance of having an attorney.
Further, the trial court noted that Preston did not use reasonable diligence to
obtain counsel prior to his arraignment. For a non-indigent defendant, such as
Preston, “the constitutional right to counsel only entitles him to be defended by
counsel of his own selection whenever he is able and willing to employ an attorney
and uses reasonable diligence to obtain his services.” (Citation and punctuation
omitted; emphasis in original.) Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d
231) (1987). See also Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856)
5 (1990). Here, the trial court implied at the hearing on Preston’s out-of-time motion
to file pre-trial motions that Preston had not exercised reasonable diligence in
obtaining counsel prior to his arraignment because he had “approximately eight
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