FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
January 31, 2022
In the Court of Appeals of Georgia
A21A1407. DONOVAN v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, John Patrick Donovan was convicted of two counts of felony
cargo theft for stealing a semitrailer and its contents. See OCGA § 16-8-22 (b) (1).
The trial court permitted Donovan to represent himself in post-conviction
proceedings and, acting pro se, Donovan filed an unsuccessful motion to modify his
sentence and represented himself in proceedings related to a motion for new trial
previously filed by counsel. The trial court denied the motion for new trial and
Donovan, now represented by counsel, filed this appeal.
As detailed below, we find no merit in Donovan’s argument that the trial court
lacked jurisdiction to rule on his motion for new trial. But we agree with Donovan
that he did not validly elect to represent himself in post-conviction proceedings. So
we vacate the order denying Donovan’s motion to modify his sentence and the order
denying his motion for new trial, which the trial court entered while Donovan was
representing himself in post-conviction proceedings, and we remand this case to the
trial court for the post-conviction process to “start anew.” Allen v. Daker, 311 Ga.
485, 505 (4) (858 SE2d 731) (2021).
Given this disposition, we do not address Donovan’s remaining claims of error.
1. Trial court’s jurisdiction to consider motion for new trial.
Donovan argues that the trial court lacked jurisdiction to rule on his motion for
new trial. He asserts that the trial court was divested of jurisdiction when, on October
28, 2019, Donovan filed a notice of appeal from the trial court’s order denying his pro
se motion to modify his sentence. But the record shows that Donovan’s motion for
new trial was pending when Donovan filed the notice of appeal from the order
denying the motion to modify his sentence; the motion for new trial was filed
prematurely on November 16, 2018 and ripened on December 7, 2018, when the trial
court entered the judgment of conviction and sentence. See Southall v. State, 300 Ga.
462, 465-466 (1) (796 SE2d 261) (2017).
When a “motion for new trial is pending, any notice of appeal to an appellate
court has not yet ripened, and absent an applicable exception such as an interlocutory
2
appeal provided in OCGA § 5-6-34 (b), any appeal must be dismissed.” Jackson v.
State, 310 Ga. 224, 226 (1) (850 SE2d 131) (2020) (citation and punctuation omitted).
For this reason, the notice of appeal that Donovan filed while his motion for new trial
was pending did not divest the trial court of jurisdiction to rule on the motion for new
trial.
2. Donovan’s election to represent himself in post-conviction proceedings.
Donovan argues that the trial court erred when, on April 10, 2019, the trial
court ruled that Donovan could represent himself in post-conviction proceedings. We
agree.
Donovan had a right to counsel in post-conviction proceedings, including the
proceedings related to his motion for new trial. See Allen, 311 Ga. at 497 (2) (using
phrase “post-conviction proceedings” to include motion-for-new trial proceedings in
considering a defendant’s right to counsel). Although Donovan could “validly elect
to represent himself during post-conviction proceedings by waiving his right to
counsel either expressly or functionally[,]” id. at 497 (2) (citations omitted), the
record shows that he did not waive his right to counsel in either way.
(a) There was no express waiver of the right to post-conviction counsel.
3
Donovan did not make a valid, express waiver of post-conviction counsel. “In
most cases, before a defendant may properly proceed pro se in initial post-conviction
proceedings and on direct appeal, he must be advised of the dangers of such self-
representation and knowingly, intelligently, and voluntarily waive his right to
appellate counsel on the record.” Allen, 311 Ga. at 498 (2) (a). See generally Faretta
v. California, 422 U. S. 806, 835 (V) (95 SCt 2525, 45 LEd2d 562) (1975) (“[I]n
order to represent himself, the accused must ‘knowingly and intelligently’ forgo [the
traditional benefits associated with the right to counsel]. Although a defendant need
not himself have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes open.”) (citations and
punctuation omitted).
In Allen v. Daker, our Supreme Court held that an express waiver of the right
to post-conviction counsel could not be based solely on the court’s warnings about
the dangers of self-representation at trial. See Allen, 311 Ga. at 498-499 (2) (a)
(holding that “the record demonstrate[d] that Daker did not receive warnings
regarding the dangers of self-representation on appeal and [so] did not expressly
4
waive his right to appellate counsel” even though the trial court had “explained to
Daker in detail the consequences of his self-representation at trial and found that he
was aware of his rights and the consequences of proceeding without an attorney [at
that stage]”). As in Allen, the trial court in this case conducted a pretrial Faretta
hearing in response to Donovan’s earlier request to represent himself at trial, and at
that hearing the trial court advised Donovan of the dangers of self-representation at
trial. But those pretrial warnings did not address the dangers of self-representation in
post-conviction proceedings and “the record contains no similar discussion with
[Donovan] of the risks of self-representation with regard to post-conviction
proceedings[.]” Allen, 311 Ga. at 499 (2) (a) (emphasis supplied).
The record shows that, after Donovan asked to represent himself post-
conviction, the trial court held another hearing that the transcript describes as a
Faretta hearing. But the discussion about self-representation at that hearing was
extremely limited. Standby counsel who had assisted Donovan at trial and had filed
the motion for new trial on his behalf informed the trial court of Donovan’s desire to
represent himself. Then the following colloquy between the trial court and Donovan
occurred:
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The Court: All right. Mr. Donovan, you certainly have a right to
represent yourself. However, you tried that during the trial and you
elected, I thought wisely, to allow [standby counsel] to represent you.[1]
It’s just difficult for a layperson to act as an attorney all of a sudden.
[Donovan]: Yes, sir. I appreciate what you are saying.
The Court: But that’s what you want to do?
[Donovan]: Yes, sir, that’s what I want to do.
The Court: I see in the file a motion for new trial filed November the
16th, 2018. Has there been any amended motion for new trial?
[Standby Counsel]: There has not, your Honor. Your Honor, that was a
motion that I made just to have so we didn’t miss any deadlines, your
Honor.
The Court: I understand. All right. You may proceed on your motion for
new trial, Mr. Donovan.
1
Although Donovan represented himself at trial, he relied heavily on assistance
from standby counsel, who among other things cross-examined many of the state’s
witnesses, made objections and argued other points to the court, and gave a closing
argument.
6
After this colloquy, the trial court and Donovan discussed other topics related
to his post-conviction proceedings. No further mention was made of the dangers of
self-representation in post-conviction proceedings, and the trial court did not
expressly find that Donovan had knowingly, intelligently, and voluntarily waived his
right to post-conviction counsel.
There is no specific colloquy that trial courts must use before a waiver of post-
conviction counsel is valid. See Allen, 311 Ga. at 498 (2) (a) n. 11. But the colloquy
that did occur, set out in its entirety above, does not “reflect a finding on the part of
the trial court that [Donovan] validly chose[] to proceed pro se [in the post-conviction
proceedings or] that this choice was made after [Donovan] was made aware of his
right to counsel and the dangers of proceeding without counsel [in those
proceedings].” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). So although
Donovan made a valid election to represent himself at trial, he “did not expressly
waive his right to [post-conviction] counsel.” Allen, 311 Ga. at 499 (2) (a).
(b) There was no functional waiver of the right to post-conviction counsel.
The state does not argue and the record does not show that Donovan
functionally waived his right to post-conviction counsel when the trial court permitted
him to represent himself in April 2019. In the case of an indigent defendant such as
7
Donovan, a functional waiver occurs when the “trial court concludes that [the]
defendant . . . is attempting to use the discharge and employment of counsel as a
dilatory tactic and declines to continue a proceeding until the defendant obtains new
counsel.” Allen, 311 Ga. at 501 (2) (b) (ii). The trial court made no such conclusion
in April 2019 when he ruled that Donovan could represent himself, and there is no
evidence that, up to that point, Donovan was engaging in dilatory conduct in the post-
conviction proceedings. A year and a half later, the trial court cited dilatory conduct
as a factor in the court’s decision to deny Donovan’s request to reinstate counsel and
continue the hearing on his motion for new trial. But that conduct occurred during the
period of time after the trial court permitted Donovan to proceed pro se, and so it
cannot support the trial court’s earlier ruling that Donovan could represent himself.
(c) Conclusion.
Because Donovan did not validly waive his right to post-conviction counsel,
that right was violated. Allen, 311 Ga. at 505 (4). We therefore vacate the trial court’s
order denying Donovan’s motion for new trial and order denying Donovan’s motion
to modify sentence and remand the case to the trial court for Donovan’s “post-
conviction process [to] start anew[.]” Id. at 505 (4). Donovan may then file an
amended motion for new trial, either with counsel or pro se if he “first knowingly,
8
intelligently, and voluntarily elects to represent himself in post-conviction
proceedings after being properly advised of the risks of doing so, or if the trial court
first makes a proper finding that [he] has functionally waived his right to [post-
conviction] counsel.” Id. at 505 (4).
3. Remaining claims of error.
Given this disposition, we decline to address Donovan’s remaining claims of
error, namely his claim that the trial court should have permitted him to reinstate post-
conviction counsel during the hearing on his motion for new trial, which is now moot;
and his claims relating to the merits of his motion for new trial and to his sentencing,
which the trial court may consider again when the post-conviction process starts anew
and Donovan either has the benefit of counsel or validly waives his right to counsel.
Judgment vacated and case remanded. Rickman, C. J., and Senior Appellate
Judge Herbert E. Phipps concur.
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In the Court of Appeals of Georgia
A21A1407. DONOVAN v. THE STATE.
RICKMAN, Chief Judge, concurring specially.
I agree with the majority that despite its best efforts at a pretrial hearing, this
trial court was again required to fully advise this defendant of the dangers of
representing himself in post-conviction proceedings. I do not agree with all that is
said in the majority opinion, however, and I therefore concur specially.
The majority cites our Supreme Court’s decision in Allen v. Daker, 311 Ga. 485
(858 SE2d 731) (2021), as support for its proposition that Donovan “did not expressly
waive his right” to appellate counsel. See id. at 499 (2) (a). But whereas the record
in Allen contained “no indication that [the defendant] wished to waive his right to
appellate counsel,” id. (emphasis supplied), this record, as quoted by the majority,
shows that Donovan expressly attempted to waive that right. The only issue before
us is thus whether that attempt at express waiver was knowing, intelligent and
voluntary.
The applicable law is clear:
In most cases, before a defendant may properly proceed pro se in initial
post-conviction proceedings and on direct appeal, he must be advised of
the dangers of such self-representation and knowingly, intelligently, and
voluntarily waive his right to appellate counsel on the record. In the
absence of a showing in the record that the trial court made such
admonitions, the defendant has not validly waived his right to appellate
counsel.
(Citation and punctuation omitted.) Allen, 311 Ga. at 498 (2) (a). At the post-
conviction hearing at issue here, the trial court referred to Donovan’s pretrial Faretta
hearing, at which Donovan “elected, [the trial court] thought wisely, to allow [stand-
by counsel] to represent [him].” The trial court continued: “It’s just difficult for a
layperson to act as an attorney all of a sudden.” After Donovan agreed with this
statement, the trial court asked whether self-representation was “what [he] want[ed]
to do,” to which Donovan responded affirmatively.
2
Despite the trial court’s apparently successful effort to warn Donovan of the
dangers of proceeding pro se at trial, this later exchange did not amount to a full
airing of either the dangers of post-conviction self-representation or Donovan’s
knowledge of these, and the trial court made no explicit finding that Donovan had
made a valid express waiver. See Allen, 311 Ga. at 498 (2) (a) (remanding for further
proceedings when the defendant “did not receive warnings regarding the dangers of
self-representation on appeal”). The majority goes on to discuss functional waiver on
the ground of dilatoriness, see id. at 501-502 (2) (b) (ii), but the trial court did not
make any finding on this issue until more than a year later, and the State does not
argue the matter on appeal. The relevant record shows, in fact, that after some initial
hesitation at the first post-conviction hearing, the trial court accepted Donovan’s
unopposed requests that he be considered indigent, that he receive transcripts after
they had been prepared, and that a hearing on his motion for new trial be continued
for at least 120 days.
Because I agree with the majority that these proceedings as to the dangers of
post-conviction self-representation were less than those required under Allen, I concur
in the judgment.
3
John Patrick Donovan v. State
Combined Opinion