Connell v. City of Daphne

          Appeal from Baldwin Circuit Court (CC-17-1594)

          ON APPLICATION FOR REHEARING

          COLE, JUDGE

         This Court's opinion of April 12, 2019, is withdrawn, and the following opinion is substituted therefor.

         Frank Morgan Connell, Jr., who was not represented by counsel, was convicted in the Fairhope Municipal Court of second-degree criminal mischief, see § 13A-7-22, Ala. Code 1975, and was sentenced to 180 days in jail. The municipal court suspended that sentence and placed Connell on 12 months' probation. Connell, again acting pro se, appealed his conviction and sentence to the Baldwin Circuit Court for a trial de novo. Following a jury trial in that court, Connell, still acting pro se, was found guilty of second-degree criminal mischief. The circuit court sentenced Connell to 6 months in jail; that sentence was split and he was ordered to serve 60 days in jail, followed by 1 year of unsupervised probation. Connell was also ordered to pay court costs, $963.60 in restitution, and a $500 fine. Connell filed a timely notice of appeal.

         On appeal, Connell, who is still proceeding pro se, argues that his Sixth Amendment right to counsel was violated because, although he never waived his right to counsel, he was required to represent himself in both the municipal court and the circuit court. We agree, and we reverse Connell's conviction and sentence and remand this case.

         Facts and Procedural History

         On July 10, 2017, Connell was arrested for violating City of Daphne Ordinance No. 2003-18, which incorporates § 13A-7-22, Ala. Code 1975. On August 29, 2017, Connell appeared in the Daphne Municipal Court, at which time both the municipal-court judge and the city prosecutor recused themselves from Connell's case. Connell's case was then transferred to the Fairhope Municipal Court. Connell pleaded not guilty, and the municipal court presented him with a waiver-of-counsel form, which he refused to sign. (C. 40.) The municipal court noted on that form that the "Defendant refused to sign"; however, it also "checked the box" that Connell had waived his right to counsel "knowingly, intelligently, and voluntarily." (C. 40.) The case-action summary also reflects that Connell refused to sign the waiver-of-rights form but includes no assertion that Connell waived his right to counsel. (C. 8.) The record on appeal does not indicate that the municipal court ever inquired into Connell's indigency status or advised him of his right to counsel or advised him of his right to have counsel appointed if he could not afford counsel. Likewise, the record on appeal does not reveal any colloquy with Connell regarding any waiver of his right to counsel.

         The same day he refused to waive his right to counsel, Connell, acting pro se, was found guilty by the municipal court and was sentenced to 180 days in jail. The court suspended that sentence and placed Connell on 12 months' probation. Connell timely appealed his conviction and sentence to the circuit court for a trial de novo.

         In the circuit court, Connell again appeared without counsel. (R. 1.) There is no waiver-of-rights form in the circuit-court record, and nothing in the record on appeal indicates that the circuit court inquired into Connell's indigency status, advised him of his right to counsel, or advised him that he had the right to appointed counsel if he could not afford counsel. As was the case in the municipal court, nothing in the record shows that the circuit court conducted a colloquy with Connell about a waiver of his right to counsel. Instead, the circuit court and Connell had the following exchange:

"The Court: All right. Mr. Connell, let me go over a couple of things with you. The first thing that I'd like to inform you of is this is a Class A misdemeanor which carries a range of punishment of up to one year in the county jail or, I guess, in the city jail, that would be in the City of Daphne, and a fine not to exceed--is it $500 in the city?

"[City Prosecutor]: Yes, sir.

"The Court: So the first thing I'm going to tell you is you have the real possibility that if a jury convicts you that you could be spending the next year in the county jail. I'm just making you aware that that is what you're facing.

"The other thing I'm going to tell you is if you represent yourself, you are not going to be a witness and an attorney at the same time. Meaning if you want to testify, you're going to sit in the stand, you're going to take an oath, and you're going to testify and you'll be subject to cross-examination. But when you are acting as your ...