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Black v. State

Court of Appeals of Georgia, Fifth Division

March 5, 2019

BLACK
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          RICKMAN, JUDGE.

         After a jury trial, David Black was convicted of aggravated sexual battery and child molestation. He appeals, claiming that the trial court abused its discretion by failing to require retained counsel to properly withdraw from the case and forcing Black to trial with unprepared counsel. Black argues that the trial court's actions violated his Sixth Amendment right to effective assistance of counsel and to competent counsel of his choice. We agree and reverse.

         The record shows that a month and a day after his privately-retained attorney appeared without reservation "as counsel for Defendant in the above-captioned matter," and only two months after being indicted for a crime bearing a possible life sentence, Black appeared at a Monday trial calendar call without counsel, and without notice that on the previous Thursday his retained counsel had filed an untimely[1]motion to withdraw. After Black notified the assigned judge that retained counsel had just told him in the hall that he would not be representing Black at trial, and without the court addressing retained counsel's motion to withdraw or considering its merits, the assigned judge told Black that he should hire counsel or be prepared to conduct the trial pro se the following Monday. The judge also gave Black "a very stern lecture about showing up to calendar call without a lawyer."[2]

         Later that day Black obtained appointed counsel, who on the same day notified the court that he would be representing Black. When he did so, the same judge, who appeared still to be angry at Black, instructed appointed counsel that no request for a continuance would be granted and the case would be tried the following Monday. One week later, despite trying two felony cases in the interim, appointed counsel stood in court and announced ready to defend Black from the serious charges facing him. One day after that, Black was found guilty, taken into custody, and eventually sentenced to life (to serve 25 years) on one of the two charges against him.

         Adding to the discontinuity in this case, the assigned judge presided at the calendar call and at sentencing, and a substitute judge presided at trial and at the hearing on the motion for new trial, which motion that judge denied. In his order, the substitute judge even noted that "[t]o date, retained counsel has still not been officially ordered withdrawn from the case." Nevertheless, despite not presiding at the calendar call where Black appeared without counsel and where the assigned judge neither considered nor ruled upon the motion to withdraw, the substitute judge found that Black was at fault for "failing to maintain contact with retained counsel" and that Black himself "deprived [appointed counsel] of time . . . to prepare [Black's] case." The judge added, "[Black] is the author of the condition in which he finds himself. He will not now be heard to complain."

         At Black's jury trial the state presented three witnesses-the victim, the victim's forensic interviewer, and a police investigator who observed the forensic interview-and introduced a video recording of the forensic interview. The defense called the victim's mother as its sole witness.

         Viewed in favor of the verdict, the evidence showed that Black lived with the victim's mother. The victim lived with her maternal great grandmother, but would often stay with her mother and Black. On July 29, 2016, when the victim was 12 years old, she accompanied her mother to a fast food restaurant where she told her mother that Black had raped her. That same day, the victim sent text messages to her father stating "David's going to prison soon yayyyy," because he had raped her. The father reported the allegations to the police, who arranged a forensic interview of the victim. During that interview, the victim stated that Black had been touching her inappropriately for a couple of years and had inserted something into her vagina. At trial, the victim testified that Black had touched her breasts and vagina, but that he had not inserted anything into her vagina.

         Black moved for a directed verdict on the aggravated sexual battery count based on the victim's testimony that nothing had been inserted into her vagina. The State responded that during the recorded forensic interview, the victim stated that Black had penetrated her vagina with his finger. The court denied the motion, finding that the evidence presented a question of fact for the jury.

          The jury found Black guilty of both counts-aggravated sexual battery and child molestation. The trial court imposed a life sentence, with 25 years in confinement and the remainder on probation, for the aggravated sexual battery, and imposed a concurrent 20-year sentence for the child molestation. Black filed a motion for new trial, which, following a hearing, the trial court denied. Black appeals.

         1. We agree with Black that the trial court abused its discretion at the trial calendar call when it impliedly granted Black's retained counsel's motion to withdraw without consideration of the merits of the motion and, later that day, by sua sponte refusing to consider any motion for a continuance by appointed counsel.

         (a) Retained counsel filed the motion to withdraw on the Thursday before the Monday trial calendar call, and the motion included an affidavit signed by retained counsel. In addition to being untimely as shown above, the motion was flawed in several ways. First, the certificate of service states that retained counsel "[did] not have a proper mailing address to notify [Black]," and there is no evidence that Black received notice of the motion before he appeared at the calendar call. Second, the motion to withdraw did not comply with the Uniform Rule of Superior Court 4.3 (1) in that it did not "state that the attorney has given written notice to the affected client setting forth the attorney's intent to withdraw, that 10 days have expired since notice, and there has been no objection, or that withdrawal is with the client's consent." Third, the motion and the attached affidavit were internally inconsistent: the motion stated that counsel should be allowed to withdraw because he had been "retained for bond purposes only and filed as counsel in this matter in error," yet the record shows that retained counsel represented Black for one month and that he had waived arraignment, demanded a list of witnesses, and elected to engage in reciprocal discovery on behalf of Black.[3] The affidavit further differed from the motion in that it stated that withdrawal should be permitted because Black failed to maintain contact and failed to provide fees for continued representation. In addition, the motion stated that Black would not be prejudiced by retained counsel's withdrawal because "the state has no objection to withdrawal and a continuance from this trial calendar to allow defendant to obtain new counsel."

         Rather than attempt to resolve the untimely nature of the motion, the obvious discrepancies it contained, and the potential prejudice it posed to Black, the assigned judge simply instructed Black that his trial would occur the following week and that he had to either obtain different counsel or be prepared to proceed pro se. In so doing, the judge failed to properly exercise her discretion-or indeed, exercise any discretion-with respect to retained counsel's motion to withdraw.

         Although a trial court's decision to grant or deny a motion to withdraw is entrusted to a court's discretion, see Miller v. Lomax, 333 Ga.App. 402, 406 (3) (a) (773 S.E.2d 475) (2015), a court abuses its discretion by wholly failing to exercise that discretion. See generally Brown v. State, 133 Ga.App. 56, 60 (6) (209 S.E.2d 721) (1974) ("[W]hen a judge passes on a matter, in which he has a discretion, and fails and refuses to exercise that discretion (especially where the judge lets it be known that he believes he has no discretion) the judgment thus reached is erroneous and should be set aside."). By wholly failing to exercise discretion by neglecting to consider and address the motion for withdrawal, the trial court erred.[4]

         The court also erred because under well-established Georgia law, "[a] formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record." (Citation and punctuation omitted.) Tolbert v. Toole, 296 Ga. 357, 362 (3) (767 S.E.2d 24) (2014); see generally White v. State, 302 Ga. 315, 319 (2) (806 S.E.2d 489) (2017) ("[L]egal representation continues-unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see USCR 4.3 (1)-(3)-through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea."). Yet, here, as acknowledged in the order denying Black's motion for new trial, "[t]o date, retained counsel has still not been officially ordered withdrawn from the case." Nevertheless, Black was forced to go to trial-on criminal charges that potentially (and actually) carried a life sentence-with alternative counsel after receiving legally insufficient notice and none of the requisite inquiry into whether retained counsel should have been permitted to withdraw.

         (b) The assigned judge also failed to exercise her discretion regarding the possible need for a continuance by instructing appointed counsel that no continuance would be granted. "[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." (Citations omitted.) Ungar v. Sarafite, 376 U.S. 575, 589 (IV) (84 S.Ct. 841, 11 L.Ed.2d 921) (1964); see Smith v. Greek, 226 Ga. 312, 317 (175 S.E.2d 1) (1970) ("Undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. The true course lies between these extremes.") (citation and punctuation omitted). In short, a court should not impede the request for a continuance; rather, "the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require." Hill v. State, 161 Ga.App. 346 (1) (287 S.E.2d 779) (1982). By refusing to consider a continuance, the assigned judge wholly failed to consider the factors that could justify delaying the trial, and failed to take into account whether prejudice would result to Black, including that retained counsel asserted in the motion for withdrawal that "the state has no objection to withdrawal and a continuance from this trial calendar to allow defendant to obtain new counsel." Accordingly, the assigned judge again abused her discretion.

         2. The above-described abuses of discretion resulted in a structural error-deprivation of Black's counsel of choice-that requires ...


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