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Longo v. City of Dunwoody

Court of Appeals of Georgia, Second Division

September 6, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          Reese, Judge.

         John Longo filed an application for discretionary review in this Court, seeking to appeal the superior court's order affirming his conviction in the Dunwoody Municipal Court for violating a city ordinance. In his application, Longo asserted that the superior court had erred in finding that he had waived his right to an attorney in the municipal court. This Court granted the application, and Longo filed the above-styled appeal. For the reasons set forth infra, we affirm.

         The undisputed evidence in the record shows that, in December 2015, the City of Dunwoody ("City") cited Longo for violating a city ordinance by performing construction on a residence without a permit. When Longo appeared without an attorney in the municipal court for arraignment on January 20, 2016, he signed a form entitled "Defendant's Right to an Attorney." At the top of the form was the following statement:

As a person accused of a crime, you have the right to be represented by any attorney under the United States and Georgia Constitutions at all critical stages of the criminal process, including your arraignment. If you cannot afford an attorney, you have the right to have an attorney appointed to represent you. If you wish to be interviewed to determine whether you qualify financially for a court appointed attorney, you may apply and be interviewed by a member of the court staff.

         The form also included the following notifications:

[A]lthough you may waive the right to an attorney, it is important that you be aware that an attorney can help you understand . . . [t]he nature of the charges against you[ ] and [t]he range of possible punishments for the charges, including a jail sentence for up to 12 months on each misdemeanor and/or 6 months on each local ordinance count[.]
Even if you [choose] to waive your right to an attorney now, you can change your mind and obtain an attorney later. But you must act diligently in obtaining an attorney, either appointed or retained. If you do not act diligently, it is possible that you might later be deemed to have waived your right to an attorney.

         Finally, the form stated, "I HAVE TAKEN THE TIME TO THOROUGHLY READ THE ABOVE AND I CHOOSE TO WAIVE MY RIGHT TO AN ATTORNEY AND AT THIS TIME WISH TO SPEAK TO THE SOLICITOR/PROSECUTOR ON MY OWN BEHALF." Longo signed and dated the form. Longo also requested a continuance to retain legal counsel, which the court granted.

         When Longo returned to the municipal court on February 18, 2016, he still had not hired counsel. Longo told the court that he needed more time to find a lawyer because he had had to use his money "to move so [he would] have a place to live." The municipal court advised Longo that it would give him additional time to find a lawyer, even though he had already had "plenty of time" since the January proceeding. The court also warned Longo, however, that it would not grant any further continuances in the case. The City's solicitor then asked Longo on the record, "You understand that you have a right to have a lawyer? And if you couldn't afford a lawyer, the City would appoint one for you if you met the financial requirements?" Longo responded, "Yes." The solicitor explained to Longo the multiple benefits of having a lawyer represent him at trial. The solicitor also told Longo that he was facing a range of possible punishments that included a jail sentence for up to six months on the ordinance violation. Longo stated that he understood his rights and that he was going to try to get a lawyer. The solicitor then asked Longo:

Do you understand that if you come to trial the next time without a lawyer, because you have not tried to avail yourself of a lawyer by application for a free lawyer, that we will object to anything else going forward other than going forward [with trial] on the next occasion if you come without your lawyer now that you've been informed?[1]

Longo answered, "Yes, sir."

         In addition, Longo signed a "Non-Jury Trial Demand"[2] during the February 18, 2016 proceeding.[3] The form stated, in relevant part: "I understand that I have the right to retain an attorney and in the alternative, I have the right to be interviewed for a court-appointed attorney if I cannot afford one." Longo checked and initialed a box on the form stating, "I will bring my own attorney on the below court date. I understand that I am responsible for hiring an attorney as soon as possible, and that not hiring an attorney is not legal grounds for a continuance."[4] Significantly, Longo did not check or initial the statement directly above that text, which stated, "I wish to be interviewed for a court[-] appointed attorney[, ]" nor did he ask to apply or be interviewed for appointed counsel during that proceeding. In addition, the form stated that Longo "attest[ed, ] by signing this [non-jury trial] demand, that no promise [or] threat has been made to me to waive my right to an attorney or waive my right to a jury trial. I further attest that I have read this document in its entirety and understand its contents." The municipal court set Longo's non-jury trial for March 30, 2016.

         On March 30, Longo appeared for his trial without an attorney, telling the municipal court trial judge ("trial judge")[5] that he did not have the money to pay for an attorney "right now." The trial judge asked if Longo had been advised of his right to an attorney in the previous proceedings, and the solicitor responded that he had been advised on the record "in anticipation [that] this is what [Longo] would do today." When the trial judge asked Longo if he wanted to apply for a court-appointed attorney or go forward with the trial without a lawyer, Longo attempted to delay the proceedings, telling the judge, "[W]ell, right now I'm not making [any] money. But in time, I will. I can try [to hire a lawyer]." The trial judge asked Longo again if he wanted to apply for a court-appointed attorney, and, for the first time, Longo said that he did. The solicitor interjected, however, and asked the trial judge to listen to the audio recording of the February 18 proceeding before deciding whether to allow Longo to apply for counsel at that point. After listening to the recording, the trial judge found that both the solicitor and the previous judge had fully apprised Longo of his right to an attorney and that Longo had received a "sufficient warning" of the need to obtain counsel before trial. The trial judge found that Longo had waived his right to counsel and that the non-jury trial would proceed as scheduled. The trial judge told Longo that he still had the option of having a trial or he could plead guilty. Longo elected to plead guilty.

         The trial judge then established that Longo was not under the influence of drugs or alcohol, that he had not been threatened or promised anything if he pled guilty, and that he understood he was giving up his right to a trial, to confront witnesses, and to remain silent. After the solicitor called witnesses to testify and provide the factual basis for the ordinance violation, [6] the trial judge accepted Longo's guilty plea. On April 14, 2016, the trial judge sentenced Longo to six months in jail (to serve seventy-five days, with the remainder on probation), to pay a $500 fine, and to perform twenty hours of community service.

         Longo filed a petition for a writ of certiorari to the superior court, claiming that he had been denied his Sixth Amendment right to counsel and that he had not entered his guilty plea knowingly and voluntarily.[7] Among other things, Longo argued that he was unaware that he could face jail time for the ordinance violation. An attorney hired by Longo filed a notice of appearance on August 1, 2016, and represented him during the hearing on the petition. Following the hearing, during which the superior court took a temporary recess and reviewed the transcripts of the municipal court proceedings, the superior court ruled that Longo had waived his right to counsel by failing to exercise due diligence by either hiring an attorney or applying for appointed counsel. The court found that Longo had had plenty of time before trial to retain counsel, and "he could have applied [for appointed counsel] all along this process[, ]" but he failed to do either. According to the superior court's order, Longo

simply made no effort to retain or apply for legal counsel [prior to trial] and such failure to exercise due diligence by [Longo] caused his waiver of his right[ to] legal counsel at trial. It is clear to this Court that [Longo] was attempting to effect additional delay [by] appearing [in the municipal court] without counsel on March 30, 2016. [A] defendant is not free to play one right against another with the hope of creating error. Neither may a defendant who has knowingly waived counsel then complain of a lack of counsel when he determines that the judge's warnings were valid. Under such circumstances, the defendant's problems are of his own making, and he is bound by his poor choices.[8]

         The superior court also ruled that, based on the entire record, Longo's guilty plea "was knowing, intelligent and voluntary." Thus, the court denied Longo's motion to withdraw his guilty plea.

         Longo applied to this Court for discretionary review of the superior court's ruling, arguing that the superior court erred by finding that he waived his right to counsel in the municipal court.[9] This Court granted the application, and this direct appeal followed.

         Under OCGA § 5-4-12, the scope of the superior court's review on certiorari from a decision of a lower tribunal is limited to alleged errors of law, as set forth in the petition, and the determination of whether the decision was supported by any evidence.[10] On appeal, this Court's duty is not to review whether the record supports the superior court's decision; instead, we must determine whether the record supports the decision of the lower tribunal.[11] With these guiding principles in mind, we turn now to Longo's specific claims of error.

         Longo contends that the superior court erred in finding that he had waived his right to counsel "by merely arriving at court [for trial on March 30] without an attorney." Longo also suggests that he was "indigent"[12] at the time of the municipal court proceedings, and that the municipal court erred in failing to determine, on the record, whether he qualified for court-appointed counsel. These arguments lack merit for the following reasons.

         1. As an initial matter, Longo's claim that he was "indigent" is not supported by the record. On the contrary, the record shows that Longo never asserted that he was indigent in the municipal court; instead, Longo repeatedly insisted - even during the March 30 proceeding - that he was going to hire an attorney. Further, because he failed to avail himself of the opportunity to apply for an appointed attorney, there is no evidence in the record to show that he ...

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