SIMS v. STATE

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Docket Number

A04A0223

Attorney(S)

Fred I. Graham, for appellant. Kelly R. Burke, District Attorney, Jason E. Ashford, Amy E. Smith, Assistant District Attorneys, for appellee.

Judges

BLACKBURN, Presiding Judge.

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Smart Summary

Factual and Procedural Background

Kalvin Sims was convicted by a jury of seven counts of burglary and two counts of theft by receiving stolen property in Houston Superior Court. Following his conviction, Sims filed a motion for a new trial, which was denied. He appealed the denial, challenging the trial court's rulings concerning his requests for legal counsel, a continuance to obtain counsel and prepare a defense, as well as his sentencing as a recidivist. The trial court had repeatedly offered Sims appointed counsel through the public defender, but Sims refused to accept representation and declined to cooperate with appointed attorneys. Despite clear warnings from the court about the risks of self-representation and the scheduling of a trial date, Sims appeared at trial without counsel, moved for a continuance which was denied, and ultimately represented himself with standby counsel who was refused assistance.

Legal Issues Presented

Whether the trial court erred in denying Sims's request for legal counsel after he refused appointed counsel.
Whether the trial court erred in denying Sims a continuance to obtain legal counsel and prepare a defense.
Whether Sims was improperly sentenced as a recidivist without proper notice under OCGA § 17-10-2(a).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reviere v. State, 231 Ga. App. 329, 331 (1998)	Defendant's knowing and intelligent waiver of counsel and the consequences of self-representation.	Used to support the conclusion that Sims knowingly waived appointed counsel after being warned by the trial court.
Lopez v. State, 259 Ga. App. 720, 724 (2003)	Uncooperative conduct can constitute a functional waiver of counsel; denial of continuance is proper when defendant refuses counsel.	Applied to hold that Sims’s refusal to cooperate with counsel amounted to a valid waiver, justifying denial of his requests for counsel and continuance.
Mock v. State, 163 Ga. App. 320, 321-322 (1982)	Voluntary waiver of the right to counsel after being warned; right to counsel does not permit manipulation of the trial process.	Supported the court’s view that Sims voluntarily relinquished his right to counsel and was not entitled to delay the trial.
Head v. State, 233 Ga. App. 655, 657 (1998)	Failure to object to lack of notice regarding recidivist sentencing waives the issue.	Applied to find Sims waived any objection to notice of recidivist sentencing by failing to timely object.
Armstrong v. State, 264 Ga. 237, 239 (1994)	Failure to object to introduction of prior convictions during sentencing waives error.	Supported the waiver of Sims’s objection to recidivist sentencing notice.

Court's Reasoning and Analysis

The court analyzed Sims's requests for counsel and continuance in light of his repeated refusals to accept appointed counsel despite multiple warnings from the trial court about the dangers of self-representation. Sims was informed of his right to counsel, offered appointed counsel, and warned that the trial would proceed on schedule regardless of whether he secured private counsel. His refusal to cooperate with the public defender's office and failure to communicate his intentions clearly led the court to conclude that he effectively waived his right to counsel. The court emphasized that a defendant cannot manipulate the trial process by rejecting counsel after knowingly waiving the right. Regarding the recidivist sentencing, the court found that Sims had been served notice of the State’s intent to use prior convictions and did not timely object at the pre-sentencing hearing. Consequently, the court held that Sims waived any claim of inadequate notice. The court therefore affirmed the denial of Sims's motion for new trial and upheld his sentence.

Holding and Implications

The judgment of the trial court is affirmed.

The court held that Sims knowingly and voluntarily waived his right to counsel and was not entitled to a continuance to obtain counsel. Additionally, Sims waived any objection to recidivist sentencing notice by failing to timely object. The decision directly affirms the trial court's rulings and conviction without establishing new legal precedent beyond the application of existing principles regarding waiver of counsel and procedural waiver of sentencing objections.

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SIMS v. THE STATE.

BLACKBURN, Presiding Judge.

Following his conviction by a jury of seven counts of burglary and two counts of theft by receiving stolen property, Kalvin Sims appeals the denial of his motion for new trial, arguing that the trial court erred in: (1) denying his request for legal counsel; (2) denying him a continuance in order to obtain legal counsel and prepare a defense; and, (3) sentencing him as a recidivist. For the reasons set forth below, we affirm.

OCGA § 16-7-1.

OCGA § 16-8-7.

1. In his first and second enumerations of error, Sims contends that the trial court erred in denying his requests for legal counsel, and for a continuance so that he could obtain legal counsel and prepare a defense. We find no error.

Our laws governing criminal procedure are designed to ensure that defendants receive a fair trial. Defendants are free to waive the protections provided by such laws, assuming all the risks attendant thereto. A defendant is not free, however, 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.

Reviere v. State. Based on the record before us, we find that Sims was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.

Reviere v. State, 231 Ga. App. 329, 331(1) ( 498 S.E.2d 332) (1998).

At the time of his arraignment on February 12, 2003, the trial court asked Sims what he wished to do about legal representation, informing him that he qualified for representation by the public defender. Sims replied, "I don't want no public defender." He then added, "Not from this office." The trial court again tried to get Sims to tell it whether it was "true or accurate that you have declined to have the public defender represent you." Again, Sims replied, "Not from this county," and then added, "I need to talk to some people, I need to call this judge and talk to this judge and they're going to give me an appeal." Following several unresponsive answers to its inquiries, the trial court stated, "All right, well, you are entitled to a public defender and unless you specifically state to me that you do not want a public defender, I'm going to appoint one for you. Now, let me caution you before you make that decision very carefully and very specifically."

The trial court warned Sims of the dangers of representing himself and encouraged him to accept the appointment of a public defender. When Sims, after repeatedly being asked by the trial court whether he would accept the services of a public defender, refused to make any meaningful response, the trial court stated, "All right, since he has not specifically declined the public defender, I will appoint the public defender to represent him. They will meet with you, they'll discuss the case with you, they will prepare your case for trial." The trial court then set the case for trial on March 31, 2003.

After being informed by attorneys in the public defender's office that Sims had refused to talk with them, the trial court held a second pre-trial hearing on February 27, 2003, to clarify what Sims wished to do about representation at trial. At the beginning of the hearing, the trial court asked Sims, "Do you have any objection to the public defender representing you? Do you want to represent yourself? What's your position on that." Sims refused to answer. After a long period of silence, the trial court again asked the same questions, and again Sims refused to answer. At this point, because Sims had not specifically stated that he wished to represent himself, the trial court appointed a lawyer from the public defender's office who was present in court. The following colloquy then occurred.

Sims: I'm going to get me a lawyer.

Court: You're going to get you a lawyer?

Sims: Yeah.

Court: All right. Well, I'll tell you what. We'll — that's fine. You believe you can afford to hire one or someone in your family; someone for you will hire one. Is that right?

Sims: Yes, sir.

Court: You said, yes, sir. All right. Well, I'm going to appoint the public defender to represent you so that we don't have a delay in trial. Your trial is set for March 31st — Monday, March 31st. And as soon as whoever you hire — and you certainly have a right to have a lawyer of your own choosing. I want to emphasize that. But as soon as you hire someone to represent you, the public defender will be relieved and I will specifically sign another order relieving them. But so that there's no delay in the trial of the case, I'm going to appoint them and then if you do hire another lawyer or when you do hire another lawyer, they will notify the Court. Lawyers know how to do this.

Sims: I don't want no public defender.

Court: Well, I'm going to appoint the public defender at this time.

Sims: I refuse it.

Court: Pardon me?

Sims: I refuse it.

Court: All right. Now, let me caution you then —

Sims: I understand

Court: No. And it's my duty and responsibility to — to do this and then we'll be sure that you do understand it. And if that's the case, we will — we will certainly relieve the public defender from the appointment that I have given them earlier and that I've reiterated here today. But you have a right to represent yourself. Everybody has that right. But I would caution you against exercising that right to represent yourself. . . . If — since you've stated that it's your desire and your intention and you have the ability to hire your own lawyer, I revoke my appointment of the public defender. However, I would caution you that lawyers need as much time as they can to prepare a case for trial. And so you should hire a lawyer just as soon as you possibly can so that they can prepare a case — your case for trial at that time. Now, if you should come to court on that day without a lawyer, you would have to go forward representing yourself, in spite of my warnings to you. And I think I warned you last time, but I wish to emphasize it again this time that lawyers are trained in the law; trained to recognize defenses you might have; and they know how to raise those defenses that you as a layperson might not. It is certainly not to your advantage to attempt to represent yourself in a jury trial. However, you have that right. But the case will not be continued simply because you have not obtained a lawyer by that time.

In response to Sims's written request, the State made an appointment for Sims to review the evidence file. However, when an automobile arrived at the appointed time to transport Sims to the district attorney's office, Sims refused to go. Sims was informed that if he changed his mind, the State would reschedule an appointment so that he could see the evidence. Sims made no further efforts to review the evidence.

Despite the trial court's clear warnings and statement of its intention to have Sims proceed on the date of the trial with or without representation, Sims appeared on the morning of the trial without representation. The trial court informed Sims that he would have to go forward with the trial and represent himself. Sims protested that he needed an attorney. Sims also moved for a continuance and the trial court denied the motion. The trial court also refused Sims's request that he be appointed an attorney.

Shortly before the trial began, Sims requested that counsel sit with and advise him. The trial court asked an attorney from the public defender's office to sit with Sims and assist him with technical matters of law. The attorney agreed to serve as standby counsel for Sims, but Sims then refused to allow her to assist him.

Sims's uncooperative and dilatory conduct was "the functional equivalent of a knowing and voluntary waiver of appointed counsel." (punctuation omitted.) Lopez v. State, and the trial court did not err in denying Sims's requests for legal counsel and for a continuance to obtain counsel.

Lopez v. State, 259 Ga. App. 720, 724(4) ( 578 S.E.2d 304) (2003).

Intelligent waiver and foolishness are not mutually exclusive. The appellant's constitutional right to adequate counsel was satisfied in this case but he threw it away. He did so voluntarily and after having been urged not to. If he had had good reason to do so, even though the jury had been sworn, we would reach a different result in this case. He was not entitled to a continuance in the case because he had been provided, at no charge, the benefit of counsel and the effective assistance of counsel. We do not question that a defendant has the right to counsel, but he had it in this case and voluntarily gave it up. His right to counsel is not superior to the state's right to try him for the criminal offense[s] and does not include the right to manipulate, whether consciously or capriciously, the state's attempt in good course to prosecute him for the offense.

(Citation omitted.) Mock v. State.

Mock v. State, 163 Ga. App. 320, 321-322 ( 293 S.E.2d 525) (1982).

2. Sims contends that the trial court erred in sentencing him as a recidivist because he was not given notice pursuant to OCGA § 17-10-2(a) of the State's intention to use prior convictions in aggravation of sentence. When the State informed the trial court that Sims had been served with notice of the State's intention to proceed under the recidivist statute and then introduced the certificates of conviction at the pre-sentencing hearing, Sims did not object on the ground that he had received no notice. Accordingly, "[a]ny issue concerning lack of notice has been waived." Head v. State. See also Armstrong v. State ("because defendant did not interpose an objection when the state introduced defendant's prior conviction into evidence during the pre-sentencing phase of the trial . . . [t]he error is deemed waived"). "[Sims's] pro se status does not relieve him of the obligation to make timely objections and to comply with the procedural and substantive requirements of the law." Lopez, supra at 724-725(5).

Head v. State, 233 Ga. App. 655, 657(3)(a) ( 504 S.E.2d 499) (1998).

Armstrong v. State, 264 Ga. 237, 239(3) ( 442 S.E.2d 759) (1994).

Judgment affirmed. Barnes and Mikell, JJ., concur.