Edwin Newbern v. State

• Court: Court of Appeals of Georgia
• Decided: September 17, 2020
• Docket: A20A0853
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., RICKMAN and BROWN, 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. https://www.gaappeals.us/rules

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September 17, 2020

In the Court of Appeals of Georgia A20A0853. NEWBERN v. THE STATE.

DILLARD, Presiding Judge.

Edwin Newbern appeals from the revocation of his probation, arguing that the

trial court erred by failing to (1) inform him of his right to request appointed counsel,

(2) determine whether he was entitled to appointed counsel, and (3) state reasons on

the record for refusing to allow him to have appointed counsel. For the reasons set

forth infra, we vacate the trial court’s judgment and remand the case for additional

proceedings consistent with this opinion.

The record shows that in March 2017, Newbern was indicted on two counts of

exploitation and intimidation of a disabled adult, elder person, or resident (Counts 1

and 3); and two counts of theft by deception (Counts 2 and 4). Several months later,

in October 2017, Newbern entered into a negotiated guilty plea to Count 1, by which he was sentenced to, inter alia, pay $9,438.59 in restitution to the victim and spend

ten years on probation. The remaining counts were nol prossed. But in February 2019,

the State moved to revoke Newbern’s probation on the ground that he had failed to

make his monthly payment of restitution to the victim since March 2018. Then,

following a hearing on the matter, the trial court revoked Newbern’s probation and

ordered him to spend five years in confinement. This appeal follows.

1. In three separate enumerations of error, Newbern argues that the trial court

erred by failing to inform him of his right to request appointed counsel, determine

whether he was entitled to appointed counsel, and state reasons on the record for

refusing to allow him to have appointed counsel.

As the Supreme Court of Georgia has explained, although there is “no Sixth

Amendment right to counsel at a revocation proceeding,” a probationer does have “a

more limited due process right to counsel under the Fourteenth Amendment.”1 But

even under the Due Process Clause of the Fourteenth Amendment, the probationer in

a revocation proceeding “has no ‘inflexible constitutional’ right to have counsel

1 Vaughn v. Rutledge, 265 Ga. 773, 774 (1) (462 SE2d 132) (1995) (punctuation omitted), discussing Gagnon v. Scarpelli, 411 U.S. 778, 782 (II) (93 SCt 1756, 36 LE2d 656) (1973).

2 appointed,”2 so there is “no absolute requirement that he be informed of that right.”3

Nevertheless, a probationer is entitled to “be informed of his right to request

counsel.”4 And consistent with this requirement, our Supreme Court has further

explained that—even with “the more limited and conditional right to counsel” in

proceedings such as those seeking to revoke probation—the right “is not waived

merely by a party unknowingly failing to insist upon a lawyer in a proceeding in

which he is not even advised that he might request counsel.”5

2 Vaughn, 265 Ga. at 774 (2) (punctuation omitted); see Gagnon, 411 U.S. at 790 (III) (“We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel.”). But see OCGA § 17-12-23 (a) (2) (“The circuit public defender shall provide representation in . . . [a] hearing on a revocation of probation in a superior court[.]”). 3 Vaughn, 265 Ga. at 774 (2); accord Kitchens v. State, 234 Ga. App. 785, 785 (1) (508 SE2d 176) (1998). 4 Vaughn, 265 Ga. at 774 (2) (punctuation omitted) (first emphasis supplied); accord Kitchens, 234 Ga. App. at 785 (1); see Gagnon, 411 U.S. at 790 (III) (“Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request . . . .”); Elrod v. State, 354 Ga. App. 177, 183 (4) (840 SE2d 658) (2020) (quoting Gagnon to recognize that, presumptively, “it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer makes such a request”). 5 Miller v. Deal, 295 Ga. 504, 506-07 (1) (761 SE2d 274) (2014) (emphasis supplied); see Brewer v. Williams, 430 U.S. 387, 404 (III) (97 SCt 1232, 51 LE2d 424) (1977) (“[T]he right to counsel does not depend upon a request by the defendant

3 With this in mind, the appointment of counsel for a probationer “must be

determined ‘on a case-by-case basis’ and the presence and participation of counsel

will probably be both undesirable and constitutionally unnecessary in most revocation

hearings.”6 Thus, it is only in a revocation proceeding in which “fundamental

fairness—the touchstone of due process—mandates the appointment of counsel that

the State will be required to provide the probationer with legal representation.”7

. . . .” (citations omitted)). 6 Vaughn, 265 Ga. at 774 (2) (punctuation omitted); accord Gagnon, 411 U.S. at 790 (III); Collins v. State, 352 Ga. App. 151, 154 (1) (834 SE2d 291) (2019). 7 Vaughn, 265 Ga. at 774 (2) (punctuation omitted); see Gagnon, 411 U.S. at 790 (III) (“[T]here will remain certain cases in which fundamental fairness—the touchstone of due process—will require that the State provide at its expense counsel for indigent probationers or parolees.”); see also Meadows v. Settles, 274 Ga. 858, 860 (3) (561 SE2d 105) (2002) (“[I]t is clear that the Fourteenth Amendment due process provisions contemplate that any such [probation-revocation] hearing must comport with principles of fundamental fairness.” (punctuation omitted)); Kemp v. Spradlin, 250 Ga. 829, 830 (301 SE2d 874) (1983) (recognizing that under Gagnon, counsel must be provided to probationers facing revocation when “fundamental fairness requires”).

4 As the Supreme Court of the United States explained in Gagnon v. Scarpelli,8

“presumptively,”9 counsel should be appointed when requested

based on a timely and colorable claim (i) that [the probationer] has not committed the alleged violation of the conditions upon which [the probationer] is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.10

And then, in passing on a request for the appointment of counsel, the “responsible

agency also should consider, especially in doubtful cases, whether the probationer

appears to be capable of speaking effectively for himself.”11 After considering the

8 411 U.S. 778 (93 SCt 1756, 36 LE2d 656) (1973). 9 In Elrod v. State, 354 Ga. App. 177, 183 (4) n.5 (840 SE2d 658) (2020), we recently noted that “the Supreme Court of Georgia took care to point out that ‘the appointment of counsel is only presumptively necessary, not absolutely required’” in Miller, 295 Ga. at 510 (2), which we cite in note 5, supra. 10 Gagnon, 411 U.S. at 790 (III); accord Vaughn, 265 Ga. at 775 (3); Kitchens, 234 Ga. App. at 785 (1). 11 Gagnon, 411 U.S. at 790 (III); accord Vaughn, 265 Ga. at 775 (3); Kitchens, 234 Ga. App. at 785 (1).

5 foregoing, if the request for counsel is refused, “the grounds for refusal should be

stated succinctly in the record.”12

Here, at the beginning of the hearing, the following colloquy transpired:

THE COURT: Mr. Newbern, you’re in court today for a hearing on a petition to revoke your probation . . . . The procedure is I need to advise you that you have the right to remain silent. You do not have to say anything that might incriminate yourself. The [S]tate has the obligation or requirement under the law to prove any allegation they contend you violated your probation by. I see you are not represented by an attorney?

NEWBERN: I would like to have one, Your Honor

THE COURT: Do you have an attorney?

NEWBERN: No, sir.

THE COURT: What have you done to obtain the services of an attorney?

NEWBERN: When the probation man came to the house and told me to sign the paper, I had to come to court, I’ve been looking for an attorney but I ain’t been able to get one.

12 Gagnon, 411 U.S. at 790 (III); accord Vaughn, 265 Ga. at 775 (3); Kitchens, 234 Ga. App. at 785-86 (1).

6 THE COURT: You were served with the petition. Did you read it?

NEWBERN: No, sir. He just come to my house and told me to sign it and told me I had to go to court on the 19th.

The trial court then explained to Newbern that the sheet he signed “outline[d]

what we’re doing here today which is to have a hearing on the violations.”

Additionally, the court explained the allegations, that Newbern could ask questions

of witnesses, testify on his own behalf, and call his own witnesses. But the court

never revisited the subject of Newbern’s desire to have counsel.

It is evident from the record, then, that the trial court never advised Newbern

of his right to request appointed counsel, as it should have done.13 Indeed, even after

Newbern stated on the record that he wished to have counsel, the trial court never

determined whether Newbern was, in fact, entitled to have counsel appointed.14

Additionally, the trial court never stated any reasons on the record for not appointing

13 Vaughn, 265 Ga. at 774 (2) (“A probationer is entitled . . . to be informed of his right to request counsel.” (punctuation omitted)); Kitchens, 234 Ga. App. at 785 (1) (same); see Gagnon, 411 U.S. at 790 (III) (“Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request . . . .”). 14 See supra note 10 & accompanying text.

7 counsel.15 To the contrary, the transcript of the hearing “reveals that the court gave

no consideration whatsoever as to whether [Newbern] should be given such

assistance.”16 In failing to do so, the trial court erred.

2. Despite the foregoing failures by the trial court, unless Newbern’s revocation

proceeding was one in which “the actual appointment of counsel was necessary to

satisfy applicable due process requirements of fundamental fairness, then he would

not have been entitled to have his request for counsel honored and the mere failure

to have informed him of the right to make such a request could not have harmed

him.”17

In Gagnon, the Supreme Court of the United States made clear that “[t]he

general guidelines outlined [by the Supreme Court] should be applied in the first

instance by those charged with conducting the revocation hearing,”18 i.e., by the trial

15 Gagnon, 411 U.S. at 790 (III) (explaining that when a request for counsel is refused, “the grounds for refusal should be stated succinctly in the record”); Vaughn, 265 Ga. at 775 (3) (same); Kitchens, 234 Ga. App. at 785-86 (1) (same). 16 Kitchens, 234 Ga. App. at 787 (1). 17 Vaughn, 265 Ga. at 775 (III); accord Kitchens, 234 Ga. App. at 787 (1). 18 411 U.S. at 791 (IV); accord Banks v. State, 275 Ga. App. 326, 329 n.4 (620 SE2d 581) (2005).

8 court. To that end, both this Court and the Supreme Court of Georgia have vacated

and remanded cases to the trial court to make such a determination when the court

failed to do so initially.19

19 See Harris v. State, 251 Ga. 517, 517 (307 SE2d 504) (1983) (“The complexities thus presented require, under directions set out in Gagnon v. Scarpelli . . . , that the habeas corpus court make inquiry as to whether [the probationer] was entitled to appointed counsel. Accordingly, the judgment of the habeas court is vacated, and the case remanded for such a determination.” (citations omitted)); Elrod, 354 Ga. App. at 183 (4) (“As neither judge reviewed the probation revocation hearing transcript, and we cannot determine from the record before us whether the proper guidelines were used to determine if [the appellant] had a right to counsel in that hearing, we vacate [the appellant’s] sentence and remand this case to the trial court to apply the factors set forth in Gagnon, based upon a review of the probation revocation hearing transcript, if it can be obtained.” (footnote omitted)); Adams v. State, 207 Ga. App. 508, 510 (1) (428 SE2d 613) (1993) (physical precedent only) (“[W]e hold that the order of revocation is vacated and the case is remanded so the trial court can ascertain whether appellant knowingly waived his right to request counsel for the probation revocation hearing. If the trial court finds appellant did not knowingly waive his right to request counsel the trial court shall consider the factors set forth in Gagnon, to decide if fundamental fairness dictates that counsel should be appointed for appellant. Should the trial court decide that counsel should be appointed for appellant for the probation revocation proceedings a new revocation hearing shall be held in which the appellant is afforded the opportunity to be represented by counsel. If the trial court determines counsel should not be appointed for appellant, the trial court shall issue an order specifying why the appointment of counsel is not necessary under the facts of this case.” (citations omitted)); Elkins v. State, 147 Ga. App. 837, 837 (250 SE2d 535) (1978) (“Since in this case it does not appear that the appellant was ever informed of his right to request counsel for the hearing, as required by [Gagnon], it cannot be said that he waived counsel by failing to make such a request. We shall, therefore, treat the case as if a request for counsel had been made and refused. While it appears from an investigation of the record that the trial judge may have been justified in making such a refusal, his actual grounds

9 This Court is aware of only once instance in which we have not remanded a

case to the trial court to make this determination in the first instance. In Banks v.

State,20 the probationer requested appointed counsel, but the trial court denied the

request under an erroneous legal theory.21 Despite this error, we affirmed the court’s

denial of her request and did not remand for reconsideration because (1) the

probationer admitted to the probation violation, (2) she did not claim “any reasons

justifying or mitigating her violations,” and (3) the record reflected that she “capably

spoke for herself.”22 As a result, we determined that the probationer in Banks “made

no showing that the appointment of counsel for the revocation proceedings was

necessary to satisfy due process concerns of fundamental fairness.”23 Suffice it to say,

this case is readily distinguishable from Banks.

for doing so are not stated in the record, as is further required by [Gagnon]. Accordingly, the order of revocation is vacated and the case is remanded so that the trial court may either state its reasons for not appointing counsel prior to the hearing or, in the alternative, proceed with a new revocation hearing in which the appellant is afforded the opportunity to be represented by counsel.”). 20 275 Ga. App. 326 (620 SE2d 581) (2005). 21 Id. at 328-29. 22 Id. at 329. 23 Id.

10 In Gagnon, the Supreme Court of the United States acknowledged that

“respondent’s admission to having committed another serious crime creates the very

sort of situation in which counsel need not ordinarily be provided.”24 Indeed, this is

one of the factors a trial court is to consider when assessing a probationer’s request

for appointed counsel.25 But Gagnon also provides that “even if the violation is a

matter of public record or is uncontested,”26 counsel should be provided if “there are

substantial reasons which justified or mitigated the violation and make revocation

inappropriate, and that the reasons are complex or otherwise difficult to develop or

present.”27

24 411 U.S. at 791 (IV). 25 See Gagnon, 411 U.S. at 790 (III) (“Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim . . . that he has not committed the alleged violation of the conditions upon which he is at liberty . . . .”); Vaughn, 265 Ga. at 775 (3) (same); Kitchens, 234 Ga. App. at 785 (1) (same). 26 Gagnon, 411 U.S. at 790 (III); accord Vaughn, 265 Ga. at 775 (3); Kitchens, 234 Ga. App. at 785 (1). 27 Gagnon, 411 U.S. at 790 (III); accord Vaughn, 265 Ga. at 775 (3); Kitchens, 234 Ga. App. at 785 (1).

11 In this case, the State is correct that Newbern admitted to violating the terms

of probation in that he failed to make timely payments of restitution to the victim. But

unlike the probationer in Banks, who did “not claim[ ] any reasons justifying or

mitigating her violations,”28 Newbern suggested that he had been unable to repay the

victim due to (1) ongoing medical issues from which he suffered that required MRIs

on his back, and (2) going to court so that he and his wife could take in family

members’ children who had been placed into the custody of DFCS.

During the hearing below, when the State asked Newbern about property it

alleged that he owned, he called his wife to the stand and asked her to testify about

what they owned—which did not include the land the State inquired about. But

Newbern faltered while questioning his wife, telling the court, “Sir, I ain’t no lawyer,

and I don’t know how to do this, I mean, you know—,” to which the court instructed

Newbern that “[i]t’s not complicated” and “[y]ou need to ask her what you want me

to hear.” Newbern then proceeded to ask his wife to explain how his “medical stuff”

affected his ability to make money and provide for his family. In response, his wife

testified that the situation was “bad,” had required multiple doctor visits, and left

Newbern unable to work. This was the extent of the testimony on that issue, and the

28 275 Ga. App. at 329.

12 documents Newbern brought to court to reflect his medical problems—which

purportedly included a letter from his doctor and medical records—were never

tendered into the record.

Under these circumstances, we cannot conclude that a remand is unnecessary

in this case. As a result, for all of the foregoing reasons, we vacate the order of

revocation and remand the case so that the trial court may either state its reasons for

not appointing counsel when Newbern indicated that he wished to have an attorney

represent him at the hearing or, alternatively, proceed with a new revocation hearing,

in which Newbern is afforded the opportunity to be represented by counsel.29

Judgment vacated and case remanded. Rickman and Brown, JJ., concur.

29 See supra note 18-19 & accompanying text.