           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs August 20, 2013

     STATE OF TENNESSEE v. GEORGE JOSEPH RAUDENBUSH, III

                  Appeal from the Criminal Court for Monroe County
                          No. 11077 Carroll L. Ross, Judge


                 No. E2012-02287-CCA-R3-CD - Filed December 3, 2013


The Defendant, George Joseph Raudenbush, III,1 was found guilty by a Monroe County
Criminal Court jury of evading arrest with risk of death, a Class D felony; evading arrest, a
Class A misdmeanor; two counts of assault, Class A misdemeanors; reckless endangerment,
a Class A misdemeanor; driving on a suspended license, a Class B misdemeanor; violation
of the financial responsibility law, a Class C misdemeanor; and speeding, a Class C
misdemeanor. See T.C.A. §§ 39-16-603 (2010) (evading arrest), 39-13-101 (2010) (assault),
39-13-103 (2010) (amended 2012, 2013) (reckless endangerment), 55-50-504 (2012)
(driving on a suspended license), 55-12-139 (2012) (amended 2013) (violation of the
financial responsibility law), 55-8-152 (2012) (speeding). The trial court merged the evading
arrest convictions. The Defendant was sentenced to serve four years as a Range I, standard
offender for evading arrest. For the misdemeanor convictions, he was sentenced to serve
eleven months, twenty-nine days for the reckless endangerment and the two assault
convictions, six months for the driving on a suspended license conviction, and thirty days for
the speeding conviction. Pursuant to statute, he was not sentenced for violating the financial
responsibility law. The trial court imposed concurrent sentences. On appeal, he contends
that the trial court denied him his Sixth Amendment right to counsel by determining he
waived the right and by requiring him to proceed pro se at the trial, during sentencing, and
on appeal. We reverse the judgments of the trial court and remand for a new trial.

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




       1
          The Defendant identified himself in pro se pleadings as “George Joseph Third; Raudenbush.”
Appellate counsel filed pleadings identifying the Defendant as “George Joseph Third Raudenbush.” We
use the name that appears in the presentment.
J OSEPH M. T IPTON , P.J., delivered the opinion of the court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Richard Hughes (on appeal), District Public Defender; and George Joseph Raudenbush, III
(at trial), Pro Se, for the appellant, George Joseph Raudenbush, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and James H. Stutts, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The Defendant proceeded pro se in the trial court. At the arraignment, he advised the
court that he was “seeking private counsel.” He stated, though, that he was unable to post
his $25,000 bond. At a status hearing approximately two months later, the Defendant, who
was no longer in custody, advised the court that he still intended to hire an attorney and was
attempting to obtain the necessary funds. He agreed that he would retain counsel and appear
with counsel about two months later. Before he was supposed to appear with counsel, the
Defendant filed pro se motions in which he stated that he had interviewed several attorneys
and “could not find a lawyer to repose his confidence in,” noted his lack of legal training and
need to obtain legal education, and requested that the court schedule a “status hearing”
approximately eight months later in order allow him to attend a law school that had agreed
to train him and to prepare his case. He stated that he did not want to waive any of his rights.
The court denied the Defendant’s motion to continue the case. The Defendant sought
permission to pursue an interlocutory appeal, which this court denied. See State v. George
Joseph Raudenbush, III, No. E2011-01294-CCA-R9-CD (Tenn. Crim. App. Aug. 2, 2011)
(order). During the time the Defendant’s application to this court was pending, the trial court
conducted the previously scheduled hearing, and the Defendant appeared without counsel.
The court set a trial date two months later. The Defendant requested additional time to
prepare, but the court denied the motion.

        About one and one-half weeks before the trial date, the trial court conducted a hearing
on the Defendant’s motion to appoint counsel. The court stated that it could not consider the
affidavit of indigency until the Defendant signed it. The Defendant stated that he did not
want to sign it until he had an attorney present. When the court pressed the Defendant to sign
the affidavit, the Defendant insisted that he did not feel comfortable signing it without
counsel. The public defender was in the courtroom and offered to review the affidavit with
the Defendant, but the court instructed the public defender that it did not want him to review
the affidavit with the Defendant. The Defendant disagreed with the court’s statement that



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the Defendant had refused counsel. The Defendant acknowledged that when he was in
custody, he wanted to retain an attorney and said he “tried to.”

       The Defendant sought permission to appeal to the Tennessee Supreme Court, but the
court denied the application. See State v. George Joseph Raudenbush, III, No. E2011-01295-
SC-R9-CD (Tenn. Oct. 20, 2011) (order). The Defendant filed a signed affidavit of
indigency with his interlocutory applications, and this court and the supreme court granted
his motion to proceed in forma pauperis. The Defendant’s application to the supreme court
was filed five days before his trial began.

       At the hearing two days before the trial, the Defendant requested that the trial court
appoint counsel, but the trial court declined. The court noted that the Defendant had
“consistently refused to hire counsel” and had not signed an affidavit of indigency. The
Defendant stated that he did not want to go to trial without counsel, that he could not
competently represent himself, and that he would affirm but not swear to the contents of the
affidavit of indigency. At the end of this hearing, the court found the Defendant in contempt
for having a recording device in the courtroom. The court jailed the Defendant, and he
remained in jail until his trial began.

       The Defendant reiterated his concerns about needing counsel at the beginning of the
trial. He stated, “I don’t want to waive my rights, Your Honor. . . . I can’t go forward
without counsel.” He noted that he had filed a signed affidavit of indigency in his pending
application to the Tennessee Supreme Court. The court did not allow the Defendant to
submit an affidavit of indigency upon affirmation, conduct an indigency hearing, or conduct
a hearing in order to determine if the Defendant knowingly and voluntarily waived his right
to counsel and desired to proceed pro se.

        The Defendant represented himself at the sentencing hearing. The judgments were
filed on October 17, 2011. No timely notice of appeal appears in the record. Although a
post-conviction petition is not in the record, an October 1, 2012 order of the trial court
granting post-conviction relief in order to allow the Defendant to pursue a delayed appeal is
in the record. The Defendant filed a notice of appeal on October 19, 2012. The Defendant
filed a motion for appointment of counsel accompanied by an affidavit of indigency. This
court ordered that the Defendant be considered indigent and remanded the case for
appointment of appellate counsel. The Defendant is now represented by appointed counsel.

        The issues before this court concern the trial court’s determination that the Defendant
was not entitled to appointed counsel. The Defendant contends that the court erred in
refusing to appoint counsel and in requiring him to proceed pro se. The State concedes that
the trial court erred. We agree with the Defendant and the State.

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       A criminal defendant has a right to be represented by counsel under both the United
States and Tennessee Constitutions. U.S. Const. Amend. VI; Tenn. Const. art. I, § 9.
Tennessee Criminal Procedure Rule 44(a) states, “Every indigent defendant is entitled to
have assigned counsel in all matters necessary to the defense and at every stage of the
proceedings, unless the defendant waives counsel.” Tennessee Code Annotated section 40-
14-202(b) (2010) requires, in pertinent part,

       Whenever an accused informs the court that the accused is financially unable
       to obtain the assistance of counsel, it is the duty of the court to conduct a full
       and complete hearing as to the financial ability of the accused to obtain the
       assistance of counsel and thereafter, to make a finding as to the indigency of
       the accused.

The statute provides that the accused’s statements shall be by sworn testimony in court or by
sworn affidavit. T.C.A. § 40-14-202(b).

        The record reflects that the Defendant requested appointed counsel and claimed he
was indigent. Although he did not provide the trial court with a signed affidavit of
indigency, he indicated his willingness to affirm the contents of an affidavit, and he advised
the court that he had signed an affidavit of indigency for the supreme court. Because the
Defendant had previously declined to sign the affidavit, the court did not allow the Defendant
to sign it when the Defendant advised the court that he had been unable to retain counsel, that
he was indigent, and that he desired appointed counsel. We note, as well, that the court did
not conduct a hearing on the Defendant’s financial resources and make a finding regarding
the Defendant’s indigency. The statute provides that the court must conduct a full and
complete hearing and that the statements of a defendant seeking appointed counsel “shall be
by sworn testimony in open court or written affidavit sworn to by the judge.” Id. This court
has said, “[A]n indigency hearing is required at any point that the defendant claims
indigency.” State v. Dubrock, 649 S.W.2d 602, 605 (Tenn. Crim. App. 1983) (involving a
defendant who initially retained counsel but later informed the court that he was unable to
pay an attorney). Throughout the pretrial proceedings, the Defendant advised the court that
he was trying to obtain the funds to retain counsel, and when the Defendant eventually told
the court that he was unable to pay an attorney and desired appointed counsel, the court failed
to make a finding as to his indigency. Rather, the court relied upon the Defendant’s previous
actions and statements in determining that the Defendant had waived the right to appointed
counsel. We note that the court could have made its findings after conducting a hearing or
reviewing an affidavit of indigency, but it refused to do either.

      The Defendant stated repeatedly in pleadings and in court that he did not wish to
waive his right to counsel and that he wanted appointed counsel. Generally, the waiver of

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the right to counsel must be knowing, voluntary, and intelligent and occurs “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.’” State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000) (quoting Adams v. U.S. ex rel.
McCann, 317 U.S. 269, 279 (1972) (citations omitted)). That said, an implicit waiver may
be presumed “from the defendant’s conduct after he has been made aware that his continued
misbehavior will result in the dangers and disadvantages of proceeding pro se.” State v.
Holmes, 302 S.W.3d 831, 840 (Tenn. 2010). A defendant’s conduct may become so
egregious that he forfeits his right to counsel “even though the defendant was not warned of
the potential consequences of his . . . actions or the risks associated with self-representation.”
See Carruthers, 35 S.W.3d at 548.

        As we have stated, the record in the present case reflects that the Defendant did not
explicitly waive his right to counsel. Although the record reflects that the Defendant tried
the patience of the trial court and at one point was held in contempt, it does not reflect that
the court ever advised the Defendant that his continued conduct placed his right to counsel
in jeopardy by implicit waiver, nor does it reflect conduct so egregious that a forfeiture of the
right to counsel occurred. Because the Defendant was denied his right to counsel and
required to proceed pro se, his convictions must be reversed. The case must be remanded for
a new trial at which the Defendant is afforded the right to counsel.

       Despite the reversal of the convictions, we note that the trial court entered separate
judgments for Count 4 (evading arrest with risk of death) and Count 5 (evading arrest) but
noted on the judgment for Count 5 that the conviction merged with Count 4. Upon merger
of two convictions, the trial court should enter a single judgment. See, e.g., State v. Addison,
973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). If the Defendant is convicted of both counts
upon remand and the court determines that merger is appropriate, a single judgment should
be entered.

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are reversed, and the case is remanded for a new trial.


                                             _____________________________________
                                             JOSEPH M. TIPTON, PRESIDING JUDGE




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