            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          SEPTEMBER 1998 SESSION
                                                       November 13, 1998

                                                    Cecil W. Crowson
PAUL DAN SMITH,               *                    Appellate Court Clerk
                                   # 01C01-9712-CC-00578

             Appellant,       *    LAWRENCE COUNTY

VS.                           *    Hon. William B. Cain, Judge

STATE OF TENNESSEE,           *    (Post-Conviction)

             Appellee.        *




For Appellant:                     For Appellee:

J. Jay Cheatwood                   John Knox Walkup
Attorney for Appellant             Attorney General & Reporter
231 Mahr Avenue
P.O. Box 794                       Elizabeth B. Marney
Lawrenceburg, TN 38464             Assistant Attorney General
                                   425 Fifth Avenue North
                                   Cordell Hull Building, Second Floor
                                   Nashville, TN 37243-0493

                                   James G. White
                                   Assistant District Attorney General
                                   P.O. Box 279
                                   Lawrenceburg, TN 38464


OPINION FILED: __________________


REVERSED AND REMANDED


GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The petitioner, Paul Dan Smith, appeals the trial court's denial of post-

conviction relief. The single issue for review is whether the trial court erred by

concluding that the petitioner had knowingly and voluntarily waived his right to

counsel. We reverse the judgment of the trial court.



              In 1996, the petitioner was indicted on four counts of burglary, three

counts of theft, five counts of contributing to the delinquency of a minor, coercion of

a witness, passing a worthless check, and felony escape. On September 12, 1996,

the petitioner, pro se, entered best interest pleas of guilty to four counts of burglary

and single counts of felony escape and passing a worthless check. For each

burglary conviction, the petitioner was sentenced to six years as a Multiple, Range II

offender. For the felony escape, he received a six-year sentence as a Persistent,

Range III offender. He was required to serve eleven months twenty-nine days for

passing the worthless check. All sentences were to be served concurrently. No fine

was imposed. As a part of the plea agreement, the state dismissed eight other

charges and agreed not to oppose parole.



              There was no direct appeal. On October 31, 1996, the petitioner filed

this petition for post-conviction relief, counsel was appointed, and the petition was

amended. The petitioner alleged that his guilty pleas were not knowing and

voluntary, that he was denied the right to counsel, and that his waiver of the right to

counsel was neither knowingly nor voluntarily made.



              Just prior to the 1996 guilty pleas, the public defender informed the

trial court that her office could not represent both the petitioner and his wife, Sheila

Smith, who was charged with aiding and abetting felony escape. The trial court


                                            2
appointed another attorney to represent Ms. Smith, leaving the office of the public

defender as the representative of the petitioner. At that point, the petitioner advised

the trial court as follows:

               Petitioner:    Your Honor, I would like to refuse to have
                              the Public Defender's office represent me.

               Court:         Well, you can hire your own lawyer. Other
                              than that, you don't have--

               Petitioner:    Your Honor, I would like to represent myself
                              then, because I do not think--

               Court:         You've got the right to do that.

The trial court provided the petitioner with copies of the indictments and entered not

guilty pleas on his behalf. When the petitioner inquired about a speedy trial, the trial

court set the trial for September 12th, just three days later. On the scheduled trial

date, the pro se petitioner informed the trial court that he had negotiated a plea

agreement with the state. The following colloquy occurred:

               Court:         I have before me here a waiver of a trial by
                              jury .... You did sign this waiver, did you?

               Petitioner:    Yes, sir.

               Court:         Now, Mr. Smith, you're here without an
                              attorney and I believe you told me on
                              Monday that you wanted to represent
                              yourself; is that right?

               Petitioner:    That's correct.

               Court:         Now, you understand that if you want an
                              attorney and you're unable to employ one,
                              then the Court will appoint an attorney for
                              you. Do you understand that?

               Petitioner:    Yes, sir.

               Court:         And you want to waive that right and
                              proceed with this matter on your own
                              without the assistance of an attorney?

               Petitioner:    Yes, sir, I do.

               Court:         All right.


                                                3
               The trial court advised the petitioner of his absolute right to a jury trial

and inquired whether there were promises made or coercive tactics used by the

state to induce the waiver of trial by jury. No such question was asked about the

waiver of counsel. The trial court then declared that the petitioner had freely and

voluntarily waived his right to a jury trial and accepted the petitioner's waiver of the

right to counsel.



               The indictments were read, after which the trial judge propounded a

series of questions. The record establishes that the petitioner was thirty-four years

old at the time of his plea and that he had completed twelfth grade. His physical

and mental health were described as good. The petitioner represented to the trial

court that he was not then, nor at the time of the offenses, under the influence of

intoxicants.



               The trial court again informed the defendant that he had the right to a

trial and to have an attorney appointed. The petitioner acknowledged these rights.

The petitioner was advised that his maximum possible penalty for these offenses

was fifty-five years and that he could be fined twenty-five thousand dollars. The

state presented a brief factual basis for the pleas. The petitioner submitted no

additional information. Afterward, the trial court inquired as follows: "[I]f

understanding everything we've talked about here this morning and fully

understanding, would you now want to withdraw your plea to any of these charges?"

The petitioner replied that he did not; he told the trial judge that he had no other

statements to make and had no questions to ask. The trial court then found that the

pleas were voluntary and knowing, accepted them, and imposed the agreed

sentences.




                                             4
              The record includes a waiver of a jury trial form dated September 12,

1996, which contains the following paragraph:

              I understand that ... if I choose to plead "Not Guilty" the
              Constitution guarantees me ... (e) the right to have the
              assistance of counsel in my defense at all stages of the
              proceedings and that if I cannot afford counsel, counsel
              will be appointed for me at no cost.

The box signifying waiver of the right to appointed counsel was checked and the

form was signed by the petitioner and the trial judge.



              On September 25th, thirteen days after the guilty pleas, the trial judge

granted a hearing at the request of the petitioner:

              Petitioner:   I felt it was injustice. ... What I felt like the
                            day when I said that I didn't want the public
                            defender to represent me, what I was
                            saying is that Mr. Rundy had instructed me
                            to say that. He said he couldn't represent
                            me. He'd told me that for six months, your
                            honor. Then when I said that I didn't want
                            them to represent me, they didn't stand up
                            and say nothing about there was any
                            conflict. Maybe I misunderstood.

              Court:        That was on the 9th [of September], and
                            you stated at that time that you wanted to
                            represent yourself.

              Petitioner:   Because, your honor, you asked me did I
                            have funds to hire an attorney and I said,
                            "no."

              Court:        All right. You said, "no," and then you said
                            that you wanted to represent yourself....

              Petitioner:   Yes, sir, I did.

              Court:        All right. Tell me about what's happened
                            that caused you to change your mind ....

              Petitioner:   I guess I just thought it over. I don't know,
                            you know, I'm no attorney myself. I've got a
                            limited ability as far as the law, you know.
                            I'm a truck driver. I don't know much about
                            law. And six years, I guess that's fine. You
                            all are the Court system. If that's justice to
                            be served, your honor, I can accept it and

                                               5
              do the six years in the State penitentiary or
              whatever.
                            ***

State:        [The petitioner] wanted to talk with us
              regarding his cases prior to the trial so we
              had him brought up, and I asked him if he
              wanted an attorney. He said, "no." I said,
              "If you want an attorney, you just pick one
              out and we'll see if they'll come over here
              and represent you and get an order from
              the Court." He did not want an attorney.
                             ***
              If he does not want [the plea] we can let
              him withdraw it, get him an attorney, and
              have a trial.
                             ***

Court:        Didn't the attorney general come down and
              talk with you?

Petitioner:   Yes, sir, he did.

Court:        Well, as far as him saying at that time that
              he would try to see that you got an
              attorney, do you agree that that happened?

Petitioner:   Yeah. I felt like there was no attorney in
              Lawrenceburg really wants to represent me,
              your honor, not fairly. Not to really do a job
              and try to help me. ... But, I'm satisfied with
              the six years.
                              ***

Court:        [I]f there's any problem, now is the time to
              work it out, rather than going to the
              penitentiary and filing petitions and post
              conviction relief and that sort of thing. If
              there is something that we need to do
              before anything else happens, then I really
              need to know what that is now.
                 The way this stands, this will be a ... six
              year sentence ... at ... forty-five percent?

Petitioner:   Yes, sir.

Court:        Now, is there anything that you want to
              redo that we did there on September 12th?

Petitioner:   No sir, I don't see none. I don't see nothing
              but just loading me up and sending me on
              to the penitentiary and let me just do it,
              rather than keeping me in this suffering in
              Lawrence County jail.

                             6
                                           ***

              Court:        But what I was concerned about is if there's
                            anything went wrong on the 12th when you
                            entered your pleas, we need to redo or
                            reconsider now.

              Petitioner:   I suppose not.



              At the evidentiary hearing on the petition for post-conviction relief, the

petitioner testified that had been informed of his right to counsel before entering the

guilty pleas. He maintained, however, that when he declined the services of the

public defender's office, the trial court had refused to appoint other counsel. He

claimed that he asked to represent himself only because he had no alternative. The

petitioner contended that had he been appointed counsel, he would have been

informed that necessity was a defense to felony escape and that he would not have

pled guilty. He claimed that he did not know the law and had no access to legal

references. The petitioner insisted that his waiver of the right to counsel was not

knowingly or intelligently entered because he did not fully understand his rights. He

also complained about an assault at the jail and testified that he had been

intimidated by the trial judge at the arraignment.



              On cross-examination, the petitioner admitted that he had thirty prior

convictions and had on three different prior occasions entered guilty pleas. He

could not point to a particular right that he did not understand and acknowledged

that prior to accepting his guilty pleas, the trial court had informed him he had the

right to an attorney. The petitioner stated that the reason he did not want an

attorney at the time was because he did not know he needed one.



              The trial judge who accepted the petitioner's guilty pleas testified that

in his eighteen years on the bench, he had never denied a defendant the

                                             7
representation of an attorney. He recalled that the petitioner wanted to represent

himself, requested a speedy trial and then expressed a desire to serve his sentence:

               I got the impression that [the petitioner] just wanted to go
               on to the penitentiary .... And we went over this
               procedure, again. I recall telling him ... if there's anything
               wrong, you need to bring it to my attention, now. ... And
               he indicated to me that he was satisfied.



               At the conclusion of the post-conviction proceeding, the trial court

concluded that the petitioner's decision to represent himself was "intelligently made

with full knowledge of his right to counsel." Under our statutory law, the petitioner

bears the burden of proving his allegations by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f). On appeal, the findings of fact made by the trial court

are conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim.

App. 1988). The burden is on the petitioner to show that the evidence

preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978).



               When an accused desires to proceed pro se, the trial judge must

conduct an intensive inquiry as to his ability to represent himself. State v.

Northington, 667 S.W.2d 57, 61 (Tenn. 1984). The waiver of the right to counsel

must be knowingly and intelligently made. State v. Armes, 673 S.W.2d 174, 177

(Tenn. Crim. App. 1984); Tenn. R. Crim. P. 44. In Johnson v. Zerbst, 304 U.S. 458,

465 (1938), the United States Supreme Court placed "the serious and weighty

responsibility ... of determining whether there is an intelligent and competent waiver"

directly upon the trial judge. In a subsequent case, more specific guidelines were

established:

               [A] judge must investigate as long and as thoroughly as
               the circumstances of the case before him demand. The

                                             8
             fact that an accused may tell him that he is informed of
             his right to counsel and desires to waive this right does
             not automatically end the judge's responsibility. To be
             valid such waiver must be made with an apprehension of
             the nature of the charges, the statutory offenses included
             within them, the range of allowable punishments
             thereunder, possible defenses to the charges and
             circumstances in mitigation thereof, and all other facts
             essential to a broad understanding of the whole matter.
             A judge can make certain that an accused's professed
             waiver of counsel is understandingly and wisely made
             only from a penetrating and comprehensive examination
             of all the circumstances under which such a plea is
             tendered.

Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948). Rule 44(a) of the Tennessee

Rules of Criminal Procedure places a similar obligation on the trial court:

             Every indigent defendant shall be entitled to have
             counsel assigned to represent him in all matters
             necessary to his defense and at every stage of the
             proceedings, unless he executes a written waiver.
             Before accepting such waiver the court shall first advise
             the accused in open court of his right to the aid of
             counsel in every stage of the proceedings. The court
             shall, at the same time, determine whether there has
             been a competent and intelligent waiver of such right by
             inquiring into the background, experience and conduct of
             the accused and such other matters as the court may
             deem appropriate. Any waiver shall be spread upon the
             minutes of the court and made a part of the record of the
             cause.

See also State v. Gardner, 626 S.W.2d 721, 723 (Tenn. Crim. App. 1981). This

court has recommended that the trial court question a defendant who wishes to

proceed pro se according to the guidelines contained in 1 Bench Book for United

States District Judges 1.02-2 to -5 (3d ed. 1986), also contained in the appendix to

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

754 S.W .2d 627, 630 (Tenn. Crim. App. 1988). For ease of reference, we have

included these guidelines in an appendix to this opinion.



              In Northington, our supreme court held that the trial court had "wholly

failed to properly investigate [whether] the defendant understood the consequences


                                           9
of self-representation in light of the Von Molke factors." 667 S.W.2d at 61 (internal

quotation marks omitted). The trial court had addressed the seriousness of the

charges, had advised that a pro se defendant would be held to the same standard

as a lawyer, and was assured that the pro se defendant had discussed the case with

his appointed attorney. Id. at 59. The age and education of the accused was also

determined in advance of the acceptance of the waiver of the right to counsel. Id.

The trial court had warned Northington that proceeding pro se was unwise. Id. Our

supreme court set aside the conviction because the trial court "failed to diligently

examine the defendant's background and experience, failed to notify defendant as

to the possible extent of any penitentiary sentence, and failed to elaborate fully to

defendant why he thought it 'unwise' to waive counsel." Id. at 61 (emphasis added).



              In State v. Goodwin, 909 S.W.2d 35 (Tenn. Crim. App. 1995), a panel

of this court ruled that Goodwin had validly waived his right to counsel. Id. at 41.

There, the trial court inquired as to Goodwin's age and education and warned him

that proceeding pro se would cause confusion. Id. at 40. Goodwin was informed

that an attorney would be provided for him for pretrial proceedings through an

appeal, if needed. Id. He was warned that he would not have access to a law

library and that his advisory counsel was not required to provide him with

photocopies of relevant legal materials. Id. The trial judge told him that the trial

would proceed at the same pace as it would if he had appointed counsel, that he

would not have an opportunity to confer with advisory counsel for every question,

and that he was responsible for understanding the rules of evidence and local rules

of court. Id. at 41. The trial judge informed Goodwin that, as a litigant, he would

have "no greater right than any other litigant" and that he would be treated the same

as if he were represented by counsel. The trial court is not required to interrupt the

trial to explain procedural rules, legal terms, or consequences of the litigant's


                                           10
actions. Id. This court held that Goodwin "clearly understood the hazards of

representing himself." Id.



              Here, the inquiry was not nearly as extensive and there were no

warnings of the pitfalls of self-representation. The trial court accepted the

petitioner's waiver of counsel without asking about the defendant's background,

education, or experience with the court system. While the trial court inquired at the

arraignment whether the petitioner understood the nature of the charges against

him, no questions were asked at the plea submission hearing as to his

understanding of lesser offenses or the elements of the offenses charged. The trial

court did not ask whether he understood available defenses or the range of possible

punishments or fines he might face, if convicted. Most importantly, the trial court

failed to warn the petitioner that self-representation was "unwise." The petitioner

was not advised that he would be held to the same standards as an attorney trained

in the law or that he would not have access to legal reference materials. At the

impromptu hearing when the trial court offered to let the petitioner withdraw his guilty

pleas and proceed to trial with appointed counsel, the trial judge still had not

explained to the petitioner why he should have counsel and what he risked by

refusing appointed counsel.



              The state argues that the petitioner was given an opportunity to

withdraw his pleas and proceed to trial with appointed counsel on September 25th,

some thirteen days after entering his pleas and receiving his sentence. Because the

petitioner declined that offer, the state contends, he should not be entitled to relief.



              In State v. Duane A. Peters, C.C.A. No. 03C01-9112-CR-00382, slip

op. at 1 (Tenn. Crim. App., at Knoxville, Apr. 15), app. denied, (Tenn. July 6, 1992),


                                           11
Peters proceeded to trial pro se and was convicted of criminal trespass. On appeal,

he argued a violation of the right to counsel. Id. A panel of this court held that the

record did not support a finding of a valid waiver of this fundamental right because

there was no compliance with the mandates of Northington or Rule 44, Tenn. R.

Crim. P. Id., slip op. at 3-4. The state argued that the issue of right to counsel was

waived because Peters did not include it in his motion for a new trial. Id., slip op at

4. Presiding Judge John K. Byers wrote decisively on behalf of the court, as follows:

              We find [the state's argument] to be rather ingenuous.
              Counsel is required to protect the rights of the accused.
              The accused goes to trial without counsel. Upon appeal
              he raises the denial of counsel as a basis for a new trial.
              Are we to deny relief because the uncounseled appellant
              did not know he must raise the issue in his motion for a
              new trial? These are the things which make the denial of
              counsel prejudicial and the right to counsel mandatory
              unless properly waived.

Id., slip op. at 4 (emphasis added).



              By insisting on a speedy trial and self-representation, the petitioner

foolishly initiated a process which concluded in a predictable result. One and a half

months later, he complained to the trial court for relief from his convictions and cited

his own folly as grounds therefor. Ordinarily, this court would have little desire to

address such a grievance. Yet the right to counsel issue has not been waived or

previously determined. Tenn. Code Ann. § 40-30-206(g), (h). Technically, the

petitioner did not fail in the September 25th proceeding to present his waiver of

counsel issue. There was no ruling on the merits. Thus, there is no procedural bar.



              Under the existing guidelines, the inquiry by the trial court should have

been more extensive. The failure to warn of the specific dangers of self-

representation is the area of primary concern. That the petitioner had prior offenses

suggests he had some previous knowledge of and experience with the criminal


                                           12
justice system. Nonetheless, the importance of an extensive inquiry is emphasized

by the content of the appendix. In our view, the evidence in the record

preponderates against the trial court's finding that the waiver of the right to counsel

by the petitioner was knowingly made. See Brooks, 756 S.W.2d at 289.



              Accordingly, the judgment of the trial court is reversed. The

convictions are set aside and the causes are remanded to the trial court for the

appointment of counsel and a new trial.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



________________________________
Thomas T. W oodall, Judge



________________________________
Curwood Witt, Judge




                                           13
                                     APPENDIX


The following excerpt is from United States v. McDowell, 814 F.2d 245, 251-52 (6th

Cir. 1987) (quoting Guideline[s] For District Judges from I Bench Book for United

States District Judges 1.02-2 to -5 (3d ed. 1986)):


               When a defendant states that he wishes to represent himself, you
should ... ask questions similar to the following:

      (a)    Have you ever studied law?

       (b)    Have you ever represented yourself or any other defendant in a
       criminal action?

       (c)   You realize, do you not, that you are charged with these crimes:
       (Here state the crimes with which the defendant is charged.)

       (d)    You realize, do you not, that if you are found guilty of the crime
       charged in Count I the court must impose an assessment of at least
       $50 ($25 if a misdemeanor) and could sentence you to as much as __
       years in prison and fine you as much as $__?

       (Then ask him a similar question with respect to each other crime with
       which he may be charged in the indictment or information.)

       (e)    You realize, do you not, that if you are found guilty of more than
       one of those crimes this court can order that the sentences be served
       consecutively, that is, one after another?

       (f)   You realize, do you not, that if you represent yourself, you are
       on your own? I cannot tell you how you should try your case or even
       advise you as to how to try your case.

       (g)    Are you familiar with the [Tennessee] Rules of Evidence?

       (h)   You realize, do you not, that the [Tennessee] Rules of Evidence
       govern what evidence may or may not be introduced at trial and, in
       representing yourself, you must abide by those rules?

       (i)   Are you familiar with the [Tennessee] Rules of Criminal
       Procedure?

       (j)   You realize, do you not, that those rules govern the way in
       which a criminal action is tried in [this] court?

       (k)    You realize, do you not, that if you decide to take the witness
       stand, you must present your testimony by asking questions of
       yourself? You cannot just take the stand and tell your story. You must
       proceed question by question through your testimony.


                                          14
       (l)    (Then say to the defendant something to this effect):
       I must advise you that in my opinion you would be far better defended
       by a trained lawyer than you can be by yourself. I think it is unwise of
       you to try to represent yourself. You are not familiar with the law. You
       are not familiar with court procedure. You are not familiar with the
       rules of evidence. I would strongly urge you not to try to represent
       yourself.

       (m)     Now, in light of the penalty that you might suffer if you are found
       guilty and in light of all of the difficulties of representing yourself, is it
       still your desire to represent yourself and to give up your right to be
       represented by a lawyer?

       (n)     Is your decision entirely voluntary on your part?

       (o)      If the answers to the two preceding questions are in the
       affirmative, [and in your opinion the waiver of counsel is knowing and
       voluntary,] you should then say something to the following effect:
       "I find that the defendant has knowingly and voluntarily waived his right
       to counsel. I will therefore permit him to represent himself."

       (p)    You should consider the appointment of standby counsel to
       assist the defendant and to replace him if the court should determine
       during trial that the defendant can no longer be permitted to represent
       himself.

(Final alteration in original).




                                            15
