Frank Morgan Connell, Jr.
City of Daphne
from Baldwin Circuit Court (CC-17-1594)
ON APPLICATION FOR REHEARING
Court's opinion of April 12, 2019, is withdrawn, and the
following opinion is substituted therefor.
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.
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.
and Procedural History
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.
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.
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
"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
"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