In Interest of TDW

493 S.E.2d 736 (1997)

229 Ga. App. 273

In the Interest of T.D.W., a child.

No. A97A1527.

Court of Appeals of Georgia.

November 7, 1997.

*737 Mary Evans-Battle, for appellant.

Tommy K. Floyd, Robert E. Keller, District Attorneys, Elizabeth N. Scarbrough, Assistant District Attorney, for appellee.

POPE, Presiding Judge.

T.D.W., a minor, was adjudicated delinquent on the offenses of leaving the scene of an accident, reckless driving, and aggravated assault, and appeals.

1. T.D.W. argues that the trial court denied his constitutional and statutory rights to counsel and that he was prejudiced. Concluding that T.D.W. did not knowingly waive his right to counsel, we reverse.

The record reflects that on March 12, 1996, a complaint charging T.D.W. with the misdemeanor offenses of reckless conduct[1] and leaving the scene of an accident arising from a March 11, 1996 incident was filed in juvenile court. On April 4, 1996, an intake conference was conducted at which a court service worker read T.D.W. his rights, and both T.D.W. and his mother signed an acknowledgement of rights form. The form, which correctly indicated that T.D.W. had been charged with reckless driving and leaving the scene of an accident, stated that T.D.W. had been informed of the importance of being represented by an attorney and had been informed of the possible dispositions which the court could order in the case. The form indicated that T.D.W. denied the charges and requested an attorney. Accordingly, T.D.W.'s application for a court-appointed attorney was completed; but his application was disapproved on April 10, 1996. Notations on the application, which is signed by a "judge or authorized representative," indicated that T.D.W.'s application was rejected because his family was not indigent.

The delinquency petition was filed in juvenile court on April 25, 1996. On April 29 and May 13, 1996, T.D.W. and his father appeared without counsel for the scheduled arraignments. Both times the arraignments were continued on motion by the State with no objection from T.D.W. or his father. An amended petition, adding the charge of aggravated assault, a designated felony under OCGA § 15-11-37, was filed on July 15, 1996. On that date, T.D.W. and his father appeared without counsel for the arraignment. The court read T.D.W. all of the charges, including the aggravated assault charge as a designated felony under OCGA § 15-11-37, and T.D.W. denied all charges. The court indicated that T.D.W.'s rights had been read to him on April 4, 1996, that he had denied the charges, that he wanted an attorney, and that his application for a court-appointed attorney had been rejected. The court gave T.D.W.'s father a sheet of instructions to use if he decided not to hire an attorney and instructed T.D.W.'s father that if he decided to hire an attorney, "it would be nice to have him within 30 days." T.D.W. and his father were also given a "Notice Regarding Counsel," which was signed by T.D.W.'s father and witnessed by the judge, which stated: "if you plan to retain an attorney, you should do so immediately and notify *738 this Court as to the attorney's name and address within thirty days." The form then stated: "[i]f your child wishes to be represented by an attorney but you do not feel that you can afford one, you need to return to the reception area of the Juvenile Court immediately following this hearing and a juvenile court officer will meet with you and give you a form to determine if you are indigent." The form concluded by stating that questions regarding attorneys should be directed to the court's intake officers.

On August 27, 1996, T.D.W. and his father appeared without counsel for the adjudicatory hearing. The court made no inquiry regarding counsel or T.D.W.'s diligence in procuring representation and proceeded with the hearing. T.D.W.'s father handled the defense; the court adjudicated T.D.W. delinquent. On October 21, 1996, the court held a dispositional hearing, at which T.D.W. was represented by counsel. On this date, the court ordered T.D.W. to serve a minimum of 120 days in boot camp. On October 23, 1996, T.D.W. filed an application for appointment of counsel, and on October 25, the court entered an order appointing counsel for T.D.W.

The question of a voluntary and knowing waiver of a juvenile's right to counsel depends on the totality of the circumstances, and the State has a heavy burden in showing that the juvenile understood and waived his right to counsel. Crawford v. State, 240 Ga. 321, 323-324, 240 S.E.2d 824 (1977); see generally OCGA § 15-11-30(b). "In Clarke v. Zant, 247 Ga. 194, 197, 275 S.E.2d 49 (1981), the court held that where a defendant proceeds to trial and represents himself the record should reflect that the trial court made the defendant aware of the danger of proceeding without counsel. This is particularly true in juvenile cases as the state has a heavy burden in showing that the juvenile did understand and waive his rights." (Citations and punctuation omitted.) In re B.M.H., 177 Ga.App. 478, 479, 339 S.E.2d 757 (1986); but see Burnett v. State, 182 Ga.App. 539, 356 S.E.2d 231 (1987).

In this case, T.D.W. was non-indigent, and accordingly, we will apply the standards for waiving retained counsel. Though this Court has not explicitly addressed the issue of waiving retained counsel in a juvenile case,[2] we conclude that the same standard as that used with retained counsel for adult offenders is appropriate. "For a non-indigent defendant, such as appellant, the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. Since a non-indigent defendant's right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney's services and whether the absence of an attorney is attributable to reasons beyond the defendant's control." (Citation and punctuation omitted; emphasis in original.) Houston v. State, 205 Ga.App. 703, 704, 423 S.E.2d 431 (1992); see also Smith v. State, 194 Ga.App. 810, 392 S.E.2d 288 (1990); Callaway v. State, 197 Ga.App. 606, 398 S.E.2d 856 (1990).

In the instant case, there is no indication that on the date of the adjudicatory hearing the court addressed the issue of T.D.W.'s representation. The record contains no evidence that the trial court attempted to ascertain whether T.D.W. or either of his parents acted with reasonable diligence in obtaining an attorney's services and whether the absence of an attorney was attributable to reasons beyond T.D.W.'s control. Houston v. State, 205 Ga.App. at 704, 423 S.E.2d 431. The record should have reflected that the court inquired into T.D.W. and his father's diligence in securing representation. Accordingly, we must vacate the adjudication of delinquency and the dispositional *739 sentence and remand the case to the trial court for a hearing to determine the reason T.D.W. and his father appeared at the adjudicatory hearing without counsel. "If it appears that [T.D.W. and his father were] unable to obtain counsel despite diligent efforts, then a new [adjudicatory hearing] is warranted. If, on the other hand, after this hearing, the court determines that [T.D.W. and his father's] failure to obtain counsel was attributable to [their] own lack of diligence, then no new [adjudicatory hearing] is demanded [and the adjudication of delinquency and dispositional sentence may be reinstated]. After this hearing and the entry of an order reflecting the judge's findings, [T.D.W.] is free to pursue whatever further remedies may be available to him, including the right to appeal directly from the judge's order on this issue." Hasty v. State, 210 Ga.App. 722, 724-725(1), 437 S.E.2d 638 (1993); see generally Flanagan v. State, 218 Ga.App. 598, 462 S.E.2d 469 (1995).

The instant case differs from Smith v. State, 211 Ga.App. 567, 440 S.E.2d 44 (1993), rev'd 264 Ga. 634, 452 S.E.2d 90 (1994), in which our Supreme Court reversed this Court's reversal of Smith's conviction for simple battery. First, in Smith the defendant was not sentenced to actual imprisonment, whereas in this case T.D.W. was sentenced to confinement. Secondly, in Smith, the non-indigent defendant clearly understood and wished to avoid the danger of self-representation, but was unable to retain counsel due to the loss of his job. In this case, there is no indication from the record as to the reason T.D.W. and his father appeared for the adjudicatory hearing unrepresented. Moreover, it is not clear from the record that after the petition was amended to include the aggravated assault charge, which was a designated felony, T.D.W. or either of his parents was warned of the consequences of an affirmative finding on the newly added charge. Compare In the Interest of W.M.F., 180 Ga.App. 397, 399(3), 349 S.E.2d 265 (1986); see also In re B.M.H., 177 Ga.App. at 478, 339 S.E.2d 757. Our conclusion is supported by the post-hearing conversation in which T.D.W. and his father demonstrated that they were unaware of the ramifications of the aggravated assault charge.

2. T.D.W. also argues that the pertinent proceedings were not recorded as mandated by OCGA § 15-11-28(b) and that the State erred in failing to hold an adjudicatory hearing within 60 days of the filing of the petition, as required by OCGA § 15-11-26(a). These enumerations are without merit. See generally Sanchez v. Walker County Dept. of Family & Children Svcs., 237 Ga. 406, 408, 229 S.E.2d 66 (1976).

Judgment vacated and case remanded.

JOHNSON and BLACKBURN, JJ., concur.

[1] This charge was later corrected to be reckless driving.

[2] The court implicitly addressed the issue in In the Interest of T.S., 211 Ga.App. 46(1), 438 S.E.2d 159 (1993).