        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 28, 2010

         STATE OF TENNESSEE v. CHARLES PHILLIP MAXWELL

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2005-D-3130    Monte D. Watkins, Judge


                 No. M2009-00467-CCA-R3-CD - Filed March 16, 2011


Defendant-Appellant, Charles Phillip Maxwell, was convicted by a Davidson County
Criminal Court jury of driving on a suspended license, a Class B misdemeanor. The trial
court imposed a six-month sentence, with Maxwell to serve forty-eight hours in jail prior to
serving the remainder of his sentence on probation. In Maxwell’s appeal, he argues that the
trial court erred: (1) in failing to appoint counsel to represent him at trial; and (2) in orally
denying his interlocutory appeal for the appointment of competent counsel. The State has
conceded that the trial court committed reversible error in refusing to appoint counsel for
Maxwell prior to trial. We reverse the trial court’s judgment and remand for a new trial
following the appointment of counsel.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                             Reversed and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Ashley D. Preston, Nashville, Tennessee, for the Defendant-Appellant, Charles Phillip
Maxwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Kyle S.
Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

        This case concerns Maxwell’s conviction for driving on a suspended license.
Maxwell represented himself at trial, at the sentencing hearing, and at the motion for new
trial hearing. Because we are reversing the judgment of the trial court and remanding for a
new trial following the appointment of counsel, we will not summarize the evidence
presented at Maxwell’s first trial.

        Following the sentencing hearing, Maxwell filed a timely pro se motion for new trial,
which the trial court denied by minute entry on January 30, 2009. See State v. Byington, 284
S.W.3d 220, 226 (Tenn. 2009) (“[A]lthough we hold that a minute entry is sufficient to
confer appellate jurisdiction under Rule 4 in a criminal case, better practice dictates that the
trial court enter a written order.”). At the same time, the trial court granted Maxwell’s
motion for appellate counsel but failed to enter an order appointing a named attorney.
Maxwell subsequently filed a timely notice of appeal pro se. He then filed a motion to this
court requesting the appointment of appellate counsel. On September 25, 2009, this court
filed an order requiring the clerk of the trial court to forward a copy of the trial court’s order
regarding the appointment of appellate counsel in this case within thirty days. The clerk
subsequently forwarded the trial court’s order, entered November 16, 2009, declaring
Maxwell indigent and appointing specific appellate counsel in this case.

                                          ANALYSIS

       I. Failure to Appoint Counsel. Maxwell argues that the trial court committed
reversible error in failing to appoint counsel to represent him at trial. In response, the State
concedes that Maxwell, who was declared indigent, did not waive or forfeit his right to
counsel. The State further concedes that Maxwell was entitled to the appointment of counsel
and that the trial court’s judgment should be reversed and remanded for a new trial following
the appointment of counsel by the trial court. We agree with the State.

       In this case, the record shows that at least two attorneys declined to be appointed to
represent Maxwell due to difficulties with him. Subsequently, at Maxwell’s request, the trial
court appointed an out-of-state attorney, who failed to comply with Tennessee’s pro hoc vice
requirements. The trial court then appointed a local attorney as Maxwell’s counsel but
allowed that attorney to withdraw based on counsel’s assertions that Maxwell refused to meet
with him about the case without his “entourage” present, accused him of conspiring with the
prosecution, questioned his ability to effectively represent him, and refused to listen to his
legal advice. In a minute entry dated just over a month prior to trial, the trial court granted
the local attorney’s motion to withdraw and determined that Maxwell would proceed pro se.

         Both the United States Constitution and the Tennessee Constitution guarantee to
criminal defendants the right to legal counsel at trial. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. Although the Sixth Amendment guarantees an effective advocate for a defendant,
it does not guarantee counsel preferred by a defendant. State v. Carruthers, 35 S.W.3d 516,
546 (Tenn. 2000) (citing Wheat v. U.S., 486 U.S. 153, 159 (1988)). Moreover, “[t]he right

                                               -2-
of an accused to assistance of counsel . . . does not include the right to appointment of
counsel of choice, or to special rapport, confidence, or even a meaningful relationship with
appointed counsel. Id. (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983); U.S. v. Gallop,
838 F.2d 105, 107 (4th Cir. 1988); Siers v. Ryan, 773 F.2d 37, 44 (3d Cir. 1985); State v.
Moody, 968 P.2d 578, 579 (Ariz. 1998); Snell v. State, 723 So.2d 105, 107 (Ala. Crim. App.
1998); Jones v. State, 449 So.2d 253, 258 (Fla. 1984); State v. Ryan, 444 N.W.2d 610, 625
(Neb. 1989)).

        The question of whether a defendant has a federal constitutional right to counsel in
a state court has often been considered by the United States Supreme Court. In Gideon v.
Wainwright, 372 U.S. 335, 344-45 (1963), the Court overruled Betts v. Brady, 316 U.S. 455
(1942), and held that the Sixth Amendment as applicable to the states through the Fourteenth
Amendment requires that an indigent defendant in a criminal prosecution in state court has
the right to appointed counsel. In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), the Court
held that “absent a knowing and intelligent waiver, no person may be imprisoned for any
offense, whether classified as petty, misdemeanor, or felony, unless he was represented by
counsel at his trial.” In Scott v. Illinois, 440 U.S. 367, 374 (1979), the Court clarified its
ruling in Argersinger by holding that the Sixth and the Fourteenth Amendments require only
that no indigent criminal defendant be sentenced to a period of imprisonment unless the State
afforded him the right to assistance of appointed counsel.

        Here, Maxwell was charged with driving on a suspended license, a Class B
misdemeanor, in violation of Tennessee Code Annotated section 55-50-504(a)(1) (2003).
Since Maxwell’s license was suspended because of his failure to file proof of insurance with
the Tennessee Department of Safety rather than because of a conviction for vehicular
assault, vehicular homicide or driving while intoxicated which would have resulted in
enhanced punishments under section 55-50-504(a)(1), he faced a sentence of not greater than
six months, or a fine not to exceed $500, or both. See T.C.A. § 40-35-111(e)(2); see also
Marie Hawks v. Michael C. Greene, No. M1999-02785-COA-R3-CV, 2001 WL 1613889,
at *5 (Tenn. Ct. App. Dec. 18, 2001) (The General Assembly “distinguish[ed] the offense
of driving on a license revoked for conviction of specific offenses, including driving under
the influence, from the offense of driving on a license revoked for any other reason, through
enacting enhanced punishments for the former[.]”). In Tennessee, defendants are appointed
counsel in felony and misdemeanor cases where the defendant “is in jeopardy of
incarceration” and the trial court had made a finding that the defendant is indigent. See
Tenn. Sup. Ct. R. 13, Sec. 1(d)(1)(A). Because the court ordered Maxwell’s incarceration
when he had been found indigent, he was entitled to appointed counsel in this case.

       The State concedes that Maxwell neither waived nor forfeited his right to counsel.
In State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000), the Tennessee Supreme Court

                                             -3-
distinguished the concepts of waiver, implicit waiver, and forfeiture of a defendant’s right
to counsel. The court stated that “waiver of the right to counsel must be voluntary, knowing,
and intelligent.” Id. at 546 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938); State v.
Small, 988 S.W.2d 671, 673 (Tenn. 1999)). In addition, waiver usually “occurs only after
the trial judge advises a defendant of the dangers and disadvantages of self-representation
and determines that the defendant ‘knows what he is doing and his choice is made with eyes
open.’” Id. (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942)). In contrast,
the court concluded that “an implicit waiver may appropriately be found, where . . . the
record reflects that the trial court advises the defendant the right to counsel will be lost if the
misconduct persists and generally explains the risks associated with self-representation.” Id.
at 549. In other words, the court distinguished the concept of explicit waiver, where a
defendant waives his right to counsel using words, from the concept of implicit waiver,
where a defendant waives his right to counsel through his conduct after he is warned by the
trial court of the risks of proceeding pro se and that continued misconduct will result in self-
representation. Id. at 546-49; see also State v. Holmes, 302 S.W.3d 831, 840 (Tenn. 2010).
Finally, the court held that a defendant forfeits his right to counsel where he “engages in
extremely serious misconduct . . . even though the defendant was not warned of the potential
consequences of his or her actions or the risks associated with self-representation.” Id. at 548
(citing U.S. v. Goldberg, 67 F.3d 1092, 1102 (3rd Cir. 1995); City of Tacoma v. Bishop, 920
P.2d 214, 218 (Wash. Ct. App. 1996)). The court added that “an indigent criminal defendant
may implicitly waive or forfeit the right to counsel by utilizing that right to manipulate, delay,
or disrupt trial proceedings.” Id. at 549. It also acknowledged that “the distinction between
[the concepts of implicit waiver and forfeiture] is slight[.]” Id.

        In State v. Holmes, 302 S.W.3d at 838-39, the Tennessee Supreme Court reiterated
that the right to counsel is not limitless:

               Although the right to counsel at trial is fundamental, it is not without
       limits. A criminal defendant may be deemed to have forfeited this right when
       he or she engages in “extremely serious misconduct,” Carruthers, 35 S.W.3d
       at 548 (citing Goldberg, 67 F.3d at 1102), or engages in an “egregious
       manipulation” of the right to counsel “so as to delay, disrupt, or prevent the
       orderly administration of justice.” Id. at 550.

The Holmes court emphasized that “[w]hether a defendant engages in some form of conduct
that justifies a ruling of forfeiture may generally be determined only after an evidentiary
hearing at which the defendant is present and permitted to testify.” Id. at 838-39 (citing
Commonwealth v. Means, 907 N.E.2d 646, 662 (Mass. 2009); King v. Superior Court, 132
Cal. Rptr. 2d 585, 598-99 (Cal. Ct. App. 2003)) (emphasis added) (internal footnote omitted).
Moreover, the State has the burden of proving that the defendant committed the acts

                                                -4-
justifying forfeiture. Id. (citing Brewer v. Williams, 430 U.S. 387, 404 (1977)). The court
stated that “a criminal defendant’s constitutional right to the assistance of counsel is so
fundamental, particularly at trial, that only the most egregious misbehavior will support a
forfeiture of that right without warning and an opportunity to conform his or her conduct to
an appropriate standard.” Id. at 846 (internal footnote omitted). Hence, a trial court’s
erroneous ruling which deprives a defendant of his right to counsel is per se reversible error.
Id. at 848. Finally, the court stated that, at the evidentiary hearing to determine whether the
defendant engaged in “extremely serious misconduct” resulting in forfeiture of the right to
counsel, the trial court should consider the following factors:

       (a) the stage of the proceedings;

       (b) whether the lawyer attacked is initial counsel or is a successor to other
       lawyers allowed to withdraw due to problems with the defendant;

       (c) whether the defendant had previously been warned about the potential loss
       of counsel as a result of misbehavior;

       (d) whether the defendant engaged in the misconduct deliberately and with the
       aim of disrupting, delaying, or otherwise manipulating the proceedings;

       (e) the degree of violence involved and the seriousness of any injury inflicted;
       and

       (f) whether measures short of forfeiture will be adequate to protect counsel.

Id. If the trial court determines at the end of the evidentiary hearing that the defendant did
not engage in “extremely serious misconduct” resulting in forfeiture of the right to counsel,
then the trial court should:

       (1) appoint new counsel (assuming prior counsel withdrew);

       (2) inform the defendant of the potential consequences of future misbehavior
       and the risks of proceeding pro se; and

       (3) order such measures as are necessary to protect new counsel from future
       misbehavior by the defendant.

Id.



                                              -5-
        Here, the record does not show whether an evidentiary hearing took place prior to the
court finding that Maxwell would proceed pro se and it provides no explanation for the
court’s final determination as to Maxwell’s self-representation. Additionally, it does not
show that the trial court warned Maxwell that if he continued to have unreasonable conflict
with appointed counsel or used alleged conflicts with counsel to disrupt, delay, or manipulate
the proceedings, he would have to proceed pro se. Finally, the record fails to show that the
trial court warned Maxwell of the risks of self-representation. The record does show that the
trial court denied Maxwell’s motions to appoint counsel and denied his motion to continue
his trial, stating:

       [Y]our position is that [appointed local counsel] did not want to proceed with
       your particular case and you didn’t think he was competent to proceed with it,
       and [I find that appointed local counsel] is a very competent attorney. He was
       the second attorney who I had appointed to represent you. And because of the
       conflict between you and both counsel, they . . . were relieved from
       representing you.

              [T]he Court does not believe that it has to continue appointing you
       counsel if you can’t get along with anyone. And for that reason, I decided that
       you could proceed pro se on this matter. . . .[I]t’s the Court’s position that we
       don’t have to just continue to appoint counsel when the defendant does not
       care for legal counsel that has been appointed.

              I mean, we try to accommodate everyone, but there reaches a certain
       point where we have to just go ahead and move on. And in your particular
       case since this case has been around here for a substantial period of time, I
       decided that we needed to go forward with this matter.

        Upon reviewing the record, we conclude that Maxwell’s actions fell short of a
forfeiture or implicit waiver of his right to counsel at trial. Because the procedure established
in Holmes was not followed by the trial court in this case, we must reverse the trial court’s
judgment and remand for a new trial following the appointment of counsel. However,
because the record establishes that many of Maxwell’s conflicts with counsel had to do with
counsel’s refusal to present arguments submitted by Maxwell on the ground that they were
frivolous, we encourage the trial court, if appropriate, to remind Maxwell that newly
appointed counsel is specifically prohibited from submitting frivolous arguments to the court
pursuant to Rule 3.1 of the Rules of Professional Conduct. See Tenn. Sup. Ct. R. 8, RPC 3.1
(“A lawyer shall not bring or defend or continue with the prosecution or defense of a
proceeding, or assert or controvert or continue to assert or controvert an issue therein, unless
after reasonable inquiry the lawyer has a basis for doing so that is not frivolous, which

                                               -6-
includes a good faith argument for an extension, modification, or reversal of existing law.”).
In the event that future problems between Maxwell and appointed counsel occur in this case,
the trial court should strictly adhere to the aforementioned procedure established in Holmes.

        II. Failure to Enter a Written Order Denying Interlocutory Appeal. Maxwell
also argues that the trial court erred in orally denying his interlocutory appeal for the
appointment of competent counsel since Tennessee Rule of Appellate Procedure 9(b)
requires entry of a written order. In response, the State contends that a written order was not
required pursuant to Rule 9(b) because the trial court determined that Maxwell’s issue was
not appealable. The State further contends that the issue is moot, given its concession that
the trial court erred in refusing to appoint counsel and that Maxwell’s judgment should be
reversed and remanded. We agree with the State.

       Rule 9(b) sets out the procedure for filing an interlocutory appeal:

       The party seeking an appeal must file and serve a motion requesting such relief
       within 30 days after the date of entry of the order appealed from. When the
       trial court is of the opinion that an order, not appealable as of right, is
       nonetheless appealable, the trial court shall state in writing the reasons for its
       opinion. The trial court’s statement of reasons shall specify: (1) the legal
       criteria making the order appealable, as provided in subdivision (a) of this rule;
       (2) the factors leading the trial court to the opinion those criteria are satisfied;
       and (3) any other factors leading the trial court to exercise its discretion in
       favor of permitting an appeal. The appellate court may thereupon in its
       discretion allow an appeal from the order.

Tenn. R. App. P. 9(b) (emphasis added). Here, Maxwell filed his interlocutory appeal on
August 25, 2008. We agree with the State that the record shows that the trial court
determined that Maxwell’s issue was not appealable. Nevertheless, we decline to address
this issue because Maxwell has proceeded on appeal pursuant to Rule 3 and we have already
reversed the trial court’s judgment and remanded the case for a new trial following the
appointment of counsel.


                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                               -7-
