MCFADDEN, P. J., RAY and RICKMAN, JJ.
MCFADDEN, PRESIDING JUDGE.
jury trial at which Deborah Saunders acted pro se, she was
convicted of criminal trespass. OCGA § 16-7-21 (a).
Although the evidence was sufficient to support the
conviction, the record does not show that Saunders
intentionally relinquished her right to counsel, so we
reverse. Given this disposition, we do not reach
Saunders's other enumerations of error.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, with the defendant
no longer enjoying a presumption of innocence."
Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d
165) (2004). So viewed, the evidence at trial showed that for
at least a month Saunders lived in a vacant rental house
without the owner's permission; that she had changed the
locks on the house; and that she refused to leave the house
when asked to do so by the police. Although Saunders does not
challenge the sufficiency of the evidence against her, we
have reviewed the evidence and conclude that it was
sufficient to sustain her conviction for criminal trespass
under OCGA § 16-7-21 (a), which pertinently provides
that "[a] person commits the offense of criminal
trespass when he or she . . . knowingly and maliciously
interferes with the possession or use of the property of
another person without consent of that person." See
generally Jackson v. Virginia, 443 U.S. 307, 319
(III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (evidence
sufficient to support conviction if, viewed in light most
favorable to prosecution, "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt") (emphasis omitted).
Right to counsel.
the federal and state constitutions guarantee a criminal
defendant . . . the right to counsel[.]" Wiggins v.
State, 298 Ga. 366, 368 (2) (782 S.E.2d 31) (2016)
(citations omitted). "As with all constitutional rights,
the accused may forfeit this right by a knowing and
intelligent waiver." Granville v. State, 281
Ga.App. 465, 466 (2) (636 S.E.2d 173) (2006) (citation
omitted). The state bears the burden of showing waiver,
Wilson v. State, 230 Ga.App. 74 (495 S.E.2d 330)
(1997), and there is a presumption against waiver. See
Calloway v. State, 197 Ga.App. 606, 607 (398 S.E.2d
856) (1990) ("Waiver will not be lightly presumed, and a
trial judge must indulge every reasonable presumption against
waiver.") (citations and punctuation omitted).
detailed below, the record shows that the trial court
attempted to raise the issue of counsel with Saunders on
several occasions, but that Saunders neither expressly
elected to represent herself nor requested counsel until the
day of trial, when she objected to the proceedings because
she did not have an attorney. At an initial arraignment
hearing, the trial court informed Saunders and the other
persons appearing for arraignment of their right to an
attorney and the perils of proceeding without an attorney.
The trial court instructed those present that when he called
their names they should enter a plea and state whether they
planned to hire a private attorney or wanted to apply for
representation by the public defender. But when the trial
court called Saunders's name, she did not enter a plea or
make any statement regarding counsel; instead, she argued
that the trial court lacked jurisdiction. After failing to
get a response from Saunders to his questions, the trial
court entered a plea of not guilty on her behalf but did not
further address the issue of counsel.
start of another calendar call, the trial court mentioned
that the public defender, who had momentarily stepped out of
the courtroom, would be present. Later in the calendar call,
the trial court gave Saunders what the trial court described
as a "Faretta warning," see Faretta v.
California, 422 U.S. 806, 835 (V) (95 S.Ct. 2525, 45
L.Ed.2d 562) (1975) (requiring defendant seeking to represent
himself to be made aware of dangers and disadvantages of
self-representation), reminding her that she had a right to
counsel and telling her that if she chose to disregard the
warning she did so "at [her] own peril[.]" Saunders
refused to sign an acknowledgment that she had received the
warning, which she claimed not to understand. The trial
court, however, found that Saunders had heard and understood
the warning. During the calendar call, Saunders made no
specific comment regarding counsel. Instead, she reiterated
her challenge to the trial court's jurisdiction over her.
final plea calendar, the trial court made comments indicating
that the public defender was present in the courtroom. When
the trial court asked Saunders for her plea, she again
refused to enter a plea and instead challenged the trial
court's jurisdiction and asked that the case be
dismissed. Over Saunders's objection, the trial court set
the case for trial. Saunders made no comment regarding
counsel at this calendar.
on the day of Saunders's trial, after more argument
regarding the trial court's jurisdiction, Saunders argued
that the trial should not go forward because she had not been
offered a pro bono attorney. The trial court responded that
Saunders had been given the opportunity to speak with a
public defender at every calendar appearance but had failed
to do so. Saunders again objected, stating that she did not
waive any of her rights. Over this objection, the case
proceeded to trial, with Saunders acting pro se.
order denying Saunders's motion for new trial, the trial
court rejected Saunders's argument that her right to
counsel had been violated, instead holding that Saunders had
made a knowing and intelligent waiver of her right to
counsel. See McDaniel v. State, 327 Ga.App. 673, 675
(1) (a) (761 S.E.2d 82) (2014) (trial court may make
determination of whether defendant knowingly and voluntarily
waived right to counsel in order on motion for new trial). In
support of this holding, the trial court set forth his
findings that Saunders was told she had a right to counsel
and was made aware of the public defender, that she was
warned of and understood the danger of proceeding without
counsel, that she nevertheless proceeded without counsel, and
that after the jury returned a guilty verdict she secured
representation by the public defender. The trial court did
not find, and the record does not show, that Saunders ever
asked to represent herself or stated that she waived her
right to counsel.
facts found by the trial court do not show that Saunders
elected to represent herself. They merely show that she did
not request or obtain counsel despite being told of her right
to counsel and the perils of not having counsel. This was not
enough to show waiver. As the United States Supreme Court
explained in the seminal case of Johnson v. Zerbst,
304 U.S. 458 (58 S.Ct. 1019, 82 L.Ed 1461) (1938),
"courts indulge every reasonable presumption against
waiver . . . and . . . we do not presume acquiescence in the
loss of fundamental rights. A waiver is ordinarily an
intentional relinquishment or abandonment of a known
right or privilege." Id. at 464 (citations and
punctuation omitted; emphasis supplied). The decision in
Johnson v. Zerbst governs the determination of
"whether or not an accused has adequately waived his
right to counsel and elected to exercise his constitutional
right to represent himself." Clarke v. Zant,
247 Ga. 194, 196 (275 S.E.2d 49) (1981) (citation omitted). A
showing of the accused's knowledge of the right to
counsel is not enough; there must also be evidence of
relinquishment of that right. Granville, 281 Ga.App.
at 466 (2); Hasty v. State, 215 Ga.App. 155, 159 (2)
(450 S.E.2d 278) (1994). "Merely finding that a request
for counsel was not made is insufficient to establish waiver.
Where the assistance of counsel is a constitutional
requisite, the right to be furnished counsel does not depend
on a request." Jones v. Wharton, 253 Ga. 82, 83
(316 S.E.2d 749) (1984) (citation and punctuation omitted);
accord Granville, supra at 466 (2).
sympathetic to the plight of the trial court, who was faced
with a pro se defendant who would not engage on the issue of
counsel. But given the presumption against waiver, the facts
cited by the trial court - which amount to no more than
Saunders's failure to request or obtain counsel despite
knowing of her right to counsel and the perils of