            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                          FILED
                                      AT KNOXVILLE                      August 24, 1999

                                                                       Cecil Crowson, Jr.
                               MARCH 1999 SESSION                      Appellate C ourt
                                                                           Clerk



STATE OF TENNESSEE,                   *   C.C.A. # 03C01-9802-CR-00065
                                          and # 03C01-9809-CR-00310
       Appellee,                      *
                                          WASHINGTON COUNTY
VS.                                   *
                                          Hon. Lynn W. Brown, Judge
MOHAMED F. ALI,                       *
                                          (Rape and Attempted Bribery
       Appellant.                     *   of a Witness)




For Appellant:                            For Appellee:

Clifford K. McGown, Jr., Attorney         Paul G. Summers
113 North Court Square                    Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185                         Michael E. Moore
(on appeal)                               Solicitor General

David F. Bautista                         Ellen H. Pollack
District Public Defender                  Assistant Attorney General
and                                       Criminal Justice Division
Deborah Black Huskins                     425 Fifth Avenue North
Assistant Public Defender                 Nashville, TN 37243
142 E. Market Street
P.O. Box 996
Johnson City, TN 37605
(at trial and of counsel on appeal)




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Mohamed F. Ali, was convicted of rape and attempting

to bribe a witness. Although represented by counsel at trial, the defendant served

as his own counsel during the sentencing hearing. The trial court imposed Range I,

consecutive sentences of twelve years for the rape and three years for the

attempted bribery. On direct appeal, this court remanded the cause to the trial court

to determine whether the defendant had knowingly and intelligently waived his right

to counsel at the sentencing hearing. State v. Mohamed F. Ali, No. 03C01-9405-

CR-00171 (Tenn. Crim. App., at Knoxville, Sept. 26, 1996). Afterward, the trial court

determined that the defendant had, in fact, knowingly and intelligently waived his

right to counsel and that a new sentencing hearing was not required. Approximately

two months later, the defendant, this time represented by counsel, filed a motion

seeking a reduction of sentence. The trial court denied the motion. The defendant

appealed each ruling. This court consolidated the appeals.



             The issues presented for review are whether the defendant knowingly

and intelligently waived his right to counsel and whether the trial court imposed an

excessive sentence. We affirm each of the judgments of the trial court.



             A factual summary is in order. The defendant is a physician. In 1989,

one of his female patients, the victim, went to the defendant to have her cholesterol

checked. After taking a blood sample, the defendant put on a rubber glove, pulled

up the victim's dress, and placed his hand inside her underwear. The defendant

then administered an injection which he explained was for muscle spasms and

directed her to the examination table. The victim described her state afterwards as

in a "dream world" or "in la la land." The defendant removed the victim's underwear,

fondled her privates, and stated that he would have to show the victim how she and


                                          2
her husband should have intercourse. The victim remembered that the defendant

unzipped his pants and placed his penis into her vagina and that, when she tried to

pull away, he forced her back. She described the incident was "over quickly."

When the victim stepped away from the examination table, she noticed what

appeared to be a semen stain on the paper covering. She recalled that she was

unable to find her underwear. The defendant then directed her to the reception

desk to make another appointment. After leaving the office, the victim stopped at a

convenience market and called her husband. When her husband arrived at the

market, he found that her speech was slurred. The victim informed him that she had

been raped by the defendant and could not find her underwear. The matter was

then reported to the police.



             Officers later found a semen stain on the examination table. Testing

indicated that the defendant could have been the source of the semen. Later, the

victim's husband met with the defendant privately. A recording of the conversation

confirmed that the defendant claimed to have given the victim an injection dosage of

a steroid which he contended had caused her to imagine that the rape had

occurred. The defendant stated that he had contacted his insurance company and

had been authorized to pay $20,000.00 in cash for the wrongful injection. The

defendant had also offered to pay for psychiatric counseling for the victim.



              Testimony by a representative of the defendant's malpractice

insurance carrier contradicted the defendant's claims. A blood and urine analysis of

the victim contradicted the defendant's claim that he had administered depo-medrol,

a steroid; instead, tests indicated a high level of hydroxyzine, a sedative used as a

pre-anesthetic. Expert testimony indicated that the drug could make one physically

helpless.


                                           3
              In the prior opinion on direct appeal, a majority of the court ruled in

pertinent part as follows:

              The record reflects that after the appellant was
              convicted, his attorney moved to withdraw because the
              appellant [had] filed a malpractice suit against the
              attorney. This motion was followed by the appellant's
              motion to remove the attorney because of certain alleged
              failures in the representation. The record on appeal
              contains no indication of judicial resolution of the
              motions, but the record subsequent to these motions
              reflects that the appellant acted pro se relative to his
              sentencing and new trial motion hearings.

              We believe the trial court was obligated to conduct a
              hearing on the record to determine if the defendant's
              decision to proceed pro se was knowingly and
              intelligently made.

                                           ***

              Because the record before us does not include a
              transcript of any hearing regarding the appellant's
              request to proceed pro se, we are unable to determine if
              the appellant's decision was knowingly and intelligently
              made. A new sentencing hearing may not be necessary,
              if such a hearing was conducted. Therefore, we vacate
              the sentences and remand the case to the trial court for it
              to determine if a record exists showing the appellant's
              affirmative waiver of counsel. If the trial court determines
              that such a record of waiver exists, it shall reinstate the
              sentences previously imposed. However, if no such
              record exists, the trial court shall conduct a new
              sentencing hearing.

State v. Mohamed F. Ali, No. 03C01-9405-CR-00171 (Tenn. Crim. App., at

Knoxville, Sep. 26, 1996), app. denied, (Tenn., June 2, 1997) (emphasis added and

citations omitted).



                                            I

              The accused in a criminal prosecution has the constitutional right to

represent himself and to proceed pro se without the assistance of counsel. Tenn.

Const., art. I, § 9; U.S. Const., amend. VI; Faretta v. California, 422 U.S. 806 (1975).

However, before the defendant is allowed to proceed on his own behalf, the trial


                                            4
court must determine that the defendant's decision is based upon a knowing and

intelligent waiver of his right to counsel. State v. Armes, 673 S.W.2d 174, 177

(Tenn. Crim. App. 1984). Rule 44(a) of the Tennessee Rules of Criminal Procedure

provides that indigent defendants should execute a written waiver before being

allowed to proceed pro se.



             In United States v. McDowell, 814 F.2d 245, 251-52 (6th Cir. 1987)

(quoting "Guideline for District Judges" from I Bench Book for United States District

Judges, 1.02-2 to -5 (3d ed. 1986)), a series of questions was suggested as a

means of assuring a knowing and intelligent waiver of the right to counsel. In Smith

v. State, 987 S.W.2d 871 (Tenn. Crim. App. 1998), this court adopted those

questions as a guideline in order to assure a proper waiver. This record includes a

transcript of the hearing on October 26, 1993.



             The defendant discharged his trial counsel several weeks after guilty

verdicts were returned on the charges of rape and attempting to bribe a witness.

The sentencing hearing was scheduled on the date the motion was filed. In his pro

se pleadings, the defendant sought both self-representation and the assistance of

the public defender. When the trial court suggested a procedure by which a public

defender would be appointed, the defendant sought to withdraw the motion for the

assistance of the public defender and represent himself. The trial court and the

defendant then engaged in a lengthy exchange regarding the request to proceed pro

se. The transcript establishes that the defendant graduated from Cairo University

School of Medicine in 1978. Afterwards, he completed his residency and a post-

graduate program at East Tennessee State University Medical School. He practiced

medicine from 1985 through 1989. The defendant expressed his understanding that

if he represented himself that he would be treated just as if he knew the law and he


                                          5
asserted that he had read the Tennessee Rules of Evidence and the Constitution of

the United States. At the time, he had in his possession the Tennessee Rules of

Evidence. The defendant testified that he had been studying constitutional law and

had brought a treatise on the subject to the sentencing hearing. When he was

asked whether he was aware of the content of the Sixth Amendment to the United

States Constitution, the defendant stated that there was a guarantee to the right to

the assistance of counsel and the right of self-representation.



              The trial court reiterated that the purpose of the inquiry of the

defendant prior to the sentencing hearing was to determine whether the choice of

self-representation was a knowledgeable and intelligent choice. When the trial court

warned that the self-representation would pose a disadvantage, the defendant

stated that he understood. When asked if he knew what Abraham Lincoln said

about one who represented himself, the defendant answered, "A man who has

himself for his attorney has a fool for an attorney...." At that point, when the

defendant asked if he could at sometime in the future elect to have counsel, the trial

court answered in the affirmative but warned that "that does not mean that [we] go

back and retry something...." The trial court stated as follows:

              But you see things just work out a whole lot better if you
              are going to have a lawyer and hire him or her and have
              the continuity of representation. It ... makes for
              confusion with the court. It makes it difficult for counsel.
              A lawyer coming in after you make ... some serious legal
              errors in representing yourself. Well, a lawyer [in that
              situation] is at a severe disadvantage.... So you are
              better off if you are going to obtain counsel to do so at
              this point.

(Emphasis added). Afterwards, the defendant responded, "Who knows, maybe

during the next week or so I might find someone.... But for today's hearing, I would

like your honor to rule on my eligibility to represent myself."




                                            6
              At the conclusion of the inquiry, the trial court found that the defendant

was intelligent, capable, and fluent in the language. It determined that the

defendant had been previously able to represent himself in filing a civil lawsuit

against his prior attorney which indicated a familiarity with the language and legal

concepts:

              I am of the opinion that you are probably making a
              mistake by representing yourself, [but the court] finds
              that you are competent, informed and knowledgeable
              and that this is a knowing and intelligent decision on your
              part. [All right], you represent yourself....

(Emphasis added).



              At the hearing on remand from this court, the trial court not only

reviewed the October 26, 1993, transcript, but also permitted testimony. Trial

counsel for the defendant asserted that prior to his discharge, he was "one hundred

percent confident" that he had advised the defendant of the potential penalties for

his crimes. The defendant claimed otherwise. He was allowed to testify. The

defendant stated that he would not have signed a waiver of his right to counsel

because of the permanency of his act. He stated that he was able to draft the civil

complaint against his former attorney only because he had used a malpractice suit

filed against him as a form. He claimed that his trial counsel never advised him of

the range of punishment for his crimes and that he was unaware that he was facing

sentencing on the date he sought to represent himself.



              In Smith, this court set aside a conviction when the trial court did not

make an extensive inquiry and, in particular, failed to warn the defendant of the

specific dangers of self-representation, "the area of primary concern." 987 S.W.2d

at 877. While the suggested questions identified in McDowell and adopted in Smith

were not specifically utilized by the trial judge in making a determination on the issue


                                           7
of waiver of counsel, there was, in our view, substantial compliance. In one way or

another, the trial court touched on each of the subjects included in the guideline.

Despite the defendant's failure to actually sign a waiver as required by Rule 44, it is

apparent that the defendant knowingly and intelligently waived his right to counsel.



              Moreover, the record establishes that the trial judge did make

reference to the applicable range of punishment and that the defendant confirmed

his understanding. On the remand, the trial court declined to accredit the assertions

of the defendant that his waiver of counsel was neither knowingly nor intelligently

made. The trial judge concluded that the motion for dismissal of defense counsel

constituted a written waiver: "[the defendant did file a written] motion for dismissal

of defense counsel [wherein he sought] to act as his own defense counsel."



              In our view, these facts are similar to those in State v. Goodwin, 909

S.W.2d 35 (Tenn. Crim. App. 1995), in which a panel of this court ruled that the

defendant had validly waived his right to counsel after an inquiry which included

questions about his age and education and a warning that proceeding pro se was

fraught with peril. In Goodwin, the trial court determined that the defendant "clearly

understood the hazards of representing himself" and was aware that he would be

responsible for understanding the Rules of Evidence and the rules of court.



                                           II

              The defendant sought a reduction of his sentence, pursuant to Rule

35, Tenn. R. Crim. P. In the initial appeal, a panel of this court concluded that the

trial court should "reinstate the sentences previously imposed" if it found that there

had been a valid waiver of the right to counsel. Ali, separate op. at 6. Thus, this

court had conditionally affirmed the sentences imposed. On January 22, 1998,


                                           8
following a finding by the trial court that the defendant's waiver of his right to counsel

was valid, the trial court reinstated the sentences originally imposed.



              In his March 13, 1998, motion to reduce the sentence, the defendant

contended that the maximum sentences were excessive and requested that he be

permitted to serve his sentences concurrently rather than consecutively. On March

19, 1998, the trial court denied the motion without a further hearing, with the

following commentary:

              The defendant in this cause has never, in any court
              proceeding, taken the slightest responsibility for
              committing these offenses, nor has he shown any
              remorse for his actions of raping his patient while he was
              a physician. Considering this and the totality of the proof
              in the sentencing hearing in this cause, the court is of the
              opinion that the motion for reduction of sentence should
              be denied.



              Rule 35 permits a trial court to reduce a sentence in the "interests of

justice." Tenn. R. Crim. P. 35 and Advisory Commission Comments. The trial court

may but is not required to conduct an evidentiary hearing. Id. In our view, the

sentences, as imposed, are entirely appropriate and justice would not be served by

a reduction in the sentence. We find no abuse of discretion on the part of the trial

court. See State v. Irick, 861 S.W.2d 375 (Tenn. Crim. App. 1993).



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge




                                            9
CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




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