C5 Right To Counsel (6Th Amendment, Miranda Not Covered)

C5. RIGHT TO COUNSEL (6^th Amendment, Miranda not covered)

C5.1 When Does Right to Counsel Exist - The right to counsel begins at the Initiation of Prosecution and thereafter covers any Critical Stage of the prosecution.

A. Initiation of Prosecution

1. General test - The U.S. Supreme Court has offered two general descriptions of when prosecution has been initiated:

a. Defendant has been "immersed in the intricacies of substantive and procedural criminal law" [McNeil v. Wisconsin, 501 U.S. 171 (1991)];

b. Government has committed itself to prosecute, and the adverse positions of government and defendant have been solidified [U.S. v. Gouveia, 467 U.S. 180 (1984)].

2. Grand Jury proceedings - Pre-arrest grand jury proceedings are generally not thought to constitute the initiation of a criminal prosecution.

3. Warrantless arrests do not initiate prosecution [U.S. v. Gouveia, 467 U.S. 180 (1984)].

4. Arrest with a warrant - authority is split here but the Eleventh Circuit has held that this is not the initiation of prosecution [United States v. Moore, 122 F.3d 1154 (8^th Cir., 1997), cert. den. 522 U.S. 1135 (1997) (arrest warrant); United States v. Langley, 848 F.2d 152 (11^th Cir., 1988) (per curiam); but see Meadows v. Kuhlmann, 812 F.2d 72 (2^nd Cir., 1987), cert. den. 482 U.S. 915 (1987)].

5. Pre-arrest probable cause hearing - no case has been decided on this (see the analysis in 11.31).

6. Initial appearance hearing - A first appearance hearings is now recognized to initiate prosecution - this does not make it a "critical stage"- but non-judicial activities after the hearing such as interrogation or line-ups would be critical stages [O'Kelley, 278 Ga. 564, 554 U.S. 191 (2008); Rothgery v. Gillespie County, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)].

CAUTION - Montejo v. Louisiana, 556 U.S. 778 , (2009) overrules Michigan v. Jackson, 475 U.S. 625,(1986), as to the waiver of Sixth Amendment rights. Montejo permitted the interrogation of the defendant by police after the appointment of counsel after a Miranda rights waiver. It is unclear what waiver, if any, would be required for a defendant not in custody, or how waiver would operate for other non-court "critical stages" such as line-ups. A State agent who is an attorney, however, cannot circumvent acting through counsel (Georgia Rules of

Professional Conduct § 4.2), and Monetjo should not be viewed as affecting the Court's responsibilities to assure that any waiver of counsel with respect to court-related activities is knowing and intelligent. (See C5.3)

7. Preliminary hearings - prosecution has clearly been initiated [Coleman v. Alabama, 399 U.S.1, 9 (1970); accord, Houston, 234 Ga. 721, 722-23, 214 SE2d 893 (1975); Mitchell, 173 Ga. App 480, 327 SE2d 537 (1985); Watson, 244 Ga. App 484, 536 SE2d 170 (2000); Camphor, 272 Ga. 408, 410 (2a), 529 SE2d 121 (2000)].

B. Critical stage of the prosecution

1. The Supreme Court has defined "critical stages" as "proceedings between an individual and agents of the State (whether 'formal or informal, in court or out,' see United States v. Wade, 388 U.S. 218, 226, (1967)), that amount to 'triallike confrontations,' at which counsel would help the accused 'in coping with legal problems or . . . meeting his adversary.'" [Rothgery v. Gillespie County, 554 U.S. 191(2008)].

Most judicial proceedings are considered a critical stage of the prosecution; however, proceedings which deal only with bond and scheduling matters, are not critical stages [see Simmons, 260 Ga. 92, 390 SE2d 43 (1990)]. Critical stages for which counsel must be provided include:

a. Preliminary hearings (see A(7) above);

b. Entering a plea [Larry v. Hicks, 268 Ga. 487, 491 SE2d 373 (1997)];

c. Sentencing or re-sentencing;

d. Trial

• Jury communications - to review and comment on appropriate instructions [see Lowery, 282 Ga. 68, 646 SE2d 67 (2007) (pros-pectively requires jury comments in writing as court exhibit and that counsel be allowed to suggest instructions in response)].

e. Restitution hearing - under facts of case restitution hearing determination was not ministerial and it was error to refuse defense counsel the right to participate and cross-examine witnesses (Defendant was not present) [Gibson v. State, 319 Ga.App. 627, 737 SE2d 728 (2013)].

f. Seeking to withdraw a plea [Fortson, 272 Ga. 457, 532 SE2d 102 (2000)] (same term); Schlau, 261 Ga.App. 303, 582 SE2d 243 (2003)], at least if the motion is within term [Murray, 265 Ga.App. 119, 592 SE2d 898 (2004); see also Kane, 265 Ga.App. 250, 593 SE2d 711 (2004) (no right where issues could only be raised in habeas)];

g. Motion for new trial [Babb, 252 Ga.App. 518; 556 SE2d 562 (2001)];

h. Non-summary criminal contempt (where contempt is not direct - in judge's presence - or the hearing is postponed) [Merritt, 261 Ga.App. 597, 583 SE2d 283 (2003) (non-party (juror))];

i. Appeal, including seeking to file a late appeal [Murray, 265 Ga.App. 119, 592 SE2d 898 (2004); but see Orr v. State, 276 Ga. 91, 93(3), 575 SE2d 444 (2003) (no appointed counsel after direct appeal (attempt to appeal ten years later and motion to vacate void judgment)]. If Defendant claims ineffective assistance, new counsel must be appointed without consideration of merits of claim [Garland, 283 Ga. 201, 657 SE2d 842 (2008)(not PD from same organization)].

j. Right to recording and transcripts for indigents parallel right to counsel whether pro se or with appointed counsel [Coleman, 293 Ga.App. 251, 666 SE2d 620 (2008)].

2. Counsel must be appointed within a reasonable time after "attachment" to allow for adequate representation at any critical stage before trial, as well as at trial itself. [Rothgery v. Gillespie County, 554 U.S. 191 (2008)].

3. Initial appearance hearing is not a critical stage since "[n]othing at this stage...impairs the defense of the accused" [Simmons, 260 Ga. 92, 390 SE2d 43 (1990)].

CAUTION - Normally, appointment of counsel at arraignment for defendants out on bond would be sufficient, provided counsel was given adequate time to file motions after investigation of the case, and the trial was not set too soon . A blanket policy, however, against appointment of counsel prior to arraignment even for defendants out on bond might lead to liability under 42 USC § 1983 [see Rothgery v. Gillespie County, 554 U.S. 191 (2008) (defendant charged with felony solely due to misunderstanding of his criminal record, no counsel appointed prior to indictment and re-arrest despite repeated requests)]. At first appearance hearing, where public defender system is available, Court may wish to tell defendants that if released on bond, they must contact public defender office for appointment if they wish representation prior to arraignment. If only appointed private counsel are available, Court may wish to at least consider unusual requests for appointment for such defendants rather than having a blanket policy of never appointing counsel.

4. Probation revocations have an unique standard for when there is a right to counsel (see C5.4F).

5. Some non-judicial activities such as interrogation [Massiah v. United States, 377 U.S. 201 (1965); accord, Fellers v. United States, 540 U.S. 519 (2004) (includes any conversation which deliberately elicits information about the case)], and line-ups and other identification proceedings [United States v. Wade, 388 U.S. 218 (1967); Moore v. Illinois, 434 U.S. 220 (1977)] are critical stages of the prosecution; however, if prosecution has not yet been initiated, there is no right to counsel at such a critical stage [Kirby v. Illinois, 406 U.S. 682 (1977)].

6. After direct appeal - counsel only for trial and for the direct appeal of conviction and sentence [Rooney v. State, 287 Ga. 1, 690 SE2d 804 (2010) (motion to void sentence); Orr v. State, 276 Ga. 91, 93(3), 575 SE2d 444 (2003) (motion to void conviction; also 10 year late appeal )] .

C. Case specific - Sixth Amendment right to counsel is case specific - fact that defendant has requested or retained counsel in one case does not preclude State from requesting Miranda waiver in connection with another case [McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Smith, 273 Ga. App. 107, 614 SE2d 219 (2005)] unless one offense is a lesser included offense of the other [Texas v. Cobb, 532 U. S. 162 (2001); Chenoweth, 281 Ga. 7, 635 SE2d 730 (2006)].

D. Collateral consequences of pleas - Sixth Amendment Right to Counsel may include advice on collateral consequences of plea [Padilla v.Kentucky, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (2010) ]:

1. Affirmative misrepresentations about those consequences in response to his client's specific inquiries may constitute ineffective representation [State v. Patel, 280 Ga. 181, 626 SE2d 121 (2006) (medical license); Smith v. Williams, 277 Ga. 778-779(1), 596 SE2d 112 (2004) (parole eligibility); Rollins v. State, 277 Ga. 488, 489-490(1), 591 SE2d 796 (2004) (bar admission and immigration consequences)]

• In order to set aside conviction, defendant must show a reasonable probability that bad advice led to plea instead of trial [State v. Sabillon, 280 Ga. 1, 622 SE2d 846 (2005)].

2. Immigration consequences of plea:

a. Bad advice concerning immigration consequences may result in grounds to set aside plea [Padilla v.Kentucky, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (2010) (including Alito concurrence); Rollins v. State, 277 Ga. 488, 489-490(1), 591 SE2d 796 (2004)];

b. Failure to advise concerning immigration consequences of plea is ineffective assistance where the law is succinct and straightforward [Padilla];

c. Failure to advise non-citizen that there may be immigration consequences and s/he may need to seek advice from an immigration attorney may be ineffective assistance [Padilla (including Alito concurrence)];

d. Court also has affirmative duty to determine that non-citizen understands that a guilty plea may affect immigration status [OCGA 17-7-93] (see NOTE on immigration consequences at 5.4C(4)(d)).

3. Although many cases in...