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Ellis v. State

Court of Appeals of Georgia, Fifth Division

October 26, 2017

ELLIS
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         William Ellis appeals from the trial court's denial of his plea in bar asserted on constitutional speedy trial grounds. Because the trial court erred in key factual findings and failed to balance the relevant legal factors, the trial court's judgment is vacated and the case is remanded for the trial court to exercise its discretion based on the correct facts and law.

         1. Facts and procedural posture.

         Ellis was arrested on February 15, 2013, and on April 26, 2013, he was indicted for rape, aggravated sodomy, false imprisonment, kidnapping, and battery. Ellis remained incarcerated due to a parole violation. On June 6, 2013, attorney Brian McWhorter filed an entry of appearance on behalf of Ellis, a waiver of arraignment and not guilty pleas to all charges, a motion for discovery, and a notice of the defendant's election to engage in reciprocal discovery with the state.

         The case first appeared on a trial calendar for November 1, 2013, but it was then continued until the trial calendar beginning on January 6, 2014. On January 13, 2014, Ellis moved for a continuance on the ground that he had just received certain discovery from the state on or about January 8, 10, and 13. The trial court granted the motion and set a new trial date of March 10, 2014. The trial court subsequently continued the case to another trial date of May 2, 2014, and then continued the trial again until September 5, 2014.

         On June 27, 2014, the state indicted Ellis on a charge of influencing a witness in the instant case. McWhorter entered an appearance in that case as well, and on August 11, 2014, the state moved to join that influencing case with the instant case. On September 5, 2014, rather than holding the scheduled trial in this case, the trial court held a hearing on the state's motion to join the two cases. At that hearing, the state noted that joinder would create a potential conflict for defense counsel McWhorter because some of the witnesses in the influencing case were his former clients. Defense counsel objected to the joinder, stating that the rape case had already been continued several times, that if the cases were joined then he would be unable to continue representing Ellis due to the client conflicts, and that Ellis would then have to start over with a new attorney. At the end of the hearing, the trial court announced that it was granting the state's motion for joinder and told defense counsel, "Now we have the issue of a conflict. So, if you wish to be conflicted out, you know, just let me know, and we'll have to continue the case in order for Mr. Ellis to obtain other counsel." Three days after the hearing, on September 9, 2014, the trial court entered a written order granting the state's motion for joinder of the cases.

         The court placed the instant case on the trial calendar for October 31, 2014. Thereafter, McWhorter filed a motion to withdraw as counsel. On November 21, 2014, the trial court entered an order granting the motion and dismissing McWhorter from the case. On December 1, 2014, Ellis filed a pro se objection to McWhorter's withdrawal. In his objection, Ellis asserted, among other things, that the case had already been continued from five trial calendars; that "if counsel is removed . . . . or permitted to withdraw[, Ellis] will be unable to proceed to [a] jury trial[, ] which could violate his right to a speedy trial"; and that the withdrawal violated "his rights guaranteed by the 5th, 6th, and 14th Amendments to the U.S. Constitution and concomitant provisions of the Georgia Constitution."

          The trial court scheduled a hearing on Ellis' objection to counsel's withdrawal on December 17, 2014. At the hearing, the prosecutor indicated that she was not ready and the judge responded that he would continue the hearing if she was not prepared. McWhorter reiterated that he had argued vehemently against joinder of the influencing a witness case with the instant rape case because of the potential conflict. The judge then continued the hearing to a later date. The following day, December 18, 2014, the trial court vacated its November 21 order allowing McWhorter's withdrawal, and set a hearing on McWhorter's motion to withdraw for January 28, 2015.

         At the January 28 hearing, the state argued that the trial court should allow McWhorter to withdraw. The prosecutor also added that "there may be further charges against Mr. Ellis down the pipeline that would even further this potential conflict." McWhorter told the court that when they appeared on the trial "calendar before the last [one], " the state asked for, and was granted, a continuance to bring additional charges against Ellis. McWhorter reiterated that he had strongly objected to the state's motion to join the cases because he was ready on the instant case, he wanted to proceed with it, and he did not want to be forced to withdraw due to a potential conflict. The trial court continued the matter to another hearing on February 2, 2015.

         During that February 2 hearing, the trial court opined, "We joined these cases for trial. Would this - these issues be existing if the cases had not been joined? At one point you indicated that's the reason we face these issues, but I'm not - I'm not convinced of that, but what if I - these cases weren't joined and we just tried the rape case alone?" McWhorter responded that "that's what I had proposed early on." The trial court took the matter under advisement and on February 27, 2015, entered an order denying McWhorter's motion to withdraw.

         On March 10, 2015, the state filed a motion to disqualify McWhorter. A month later, on April 10, 2015, the trial court held a hearing on the state's motion to disqualify counsel. Two weeks after that, on April 24, 2015, the trial court entered an order denying the state's motion to disqualify McWhorter.

         On May 15, 2015, the state indicted Ellis on a second influencing case. On June 11, 2015, McWhorter and the state filed a joint motion requesting that the court continue the two joined cases - the instant case and the first influencing a witness case - from the July 6, 2015 trial calendar, and that the court specially set both cases for the first week of the September 2015 trial calendar. That same day, the trial court entered an order that granted the joint motion to continue, but did not address the request for a specially set trial date. On July 1, 2015, the parties appeared in court "to talk about where [the case was] going from here procedurally." At that meeting, the state proposed that the court now sever the first influencing case from the instant case and that the two influencing cases be tried before the instant case. Both Ellis and his counsel consented to the state's proposal.

         On August 7, 2015, Ellis filed a pro se plea in bar for a speedy trial violation in the instant case, claiming that two defense witnesses had died during the delay of the case. On August 10, 2015, the trial court denied the plea in bar on the ground that Ellis was represented by counsel and thus was not entitled to represent himself. Thereafter, the instant case appeared on trial calendars for January 4, 2016, and March 4, 2016, but no trial occurred on either date. In the meantime, the two influencing cases went to trial, with the first case resulting in a mistrial due to a hung jury on January 3, 2016, and the second influencing case resulting in a guilty verdict on March 15, 2016.

         The instant case appeared on the court's trial calendar beginning May 6, 2016, and was called for trial on May 16, 2016. At the call of the case, Ellis sought to dismiss McWhorter and proceed pro se. The trial court granted the request, but informed Ellis that he could later reinstate McWhorter if he wanted to do so. While representing himself, Ellis filed in court a plea in bar asserting a constitutional speedy trial violation. After filing the pro se plea in bar, Ellis sought to reinstate McWhorter, which the trial court initially allowed, but later disallowed and instructed Ellis to apply for a public defender.

         A new attorney was subsequently appointed to represent Ellis and he entered his notice of appearance as counsel for Ellis on June 10, 2016. New counsel expressly adopted the pro se plea in bar previously filed by Ellis. A hearing was held on August 3, 2016, and the trial court denied the plea in bar on August 26, ...


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