A Gwinnett County jury found Daryl Ham Sr. guilty of speeding. OCGA § 40-6-181. He was sentenced to twelve months confinement to be served on probation, a fine, and community service. On appeal, Ham contends that the trial court erred i in failing to warn him of the danger of proceeding without an attorney, and ii in overruling his objection to the admission into evidence of an expired laser permit. After a thorough review of the record, we reverse and remand for a new trial because the State failed to satisfy its burden of showing that Ham knowingly and intelligently waived his right to counsel. Ham did not submit a transcript of the trial as part of the appellate record, and the State does not dispute his assertion that the proceedings were not transcribed. The general rule is that the appellant must show error by the record. See Rose v. State , 287 Ga. 238, 240, n. 2 695 SE2d 261 2010. An exception to that general rule has developed, however, based upon the Supreme Court’s decision in Jones v. Wharton , 253 Ga. 82 316 SE2d 749 1984. In Jones , the Supreme Court held that under Argersinger v. Hamlin , 407 U. S. 25 92 SC 2006, 32 LE2d 530 1972, regardless of whether the charges are felony or misdemeanor charges, when an accused is put on trial and faces a term of imprisonment, he is constitutionally guaranteed the right to counsel. Id. The accused may make a knowing and intelligent waiver of this right, but we may not presume such a waiver from a silent record. Citation omitted. Jones v. State , 260 Ga. App. 251, 252 2 581 SE2d 315 2003 reversing appellant’s misdemeanor traffic offense convictions. In other words, “when the record is silent, waiver is never presumed and the burden is on the State to present evidence of a valid waiver.” Citation omitted. Jones , supra, 253 Ga. at 83. “The record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver.” Citations and punctuation omitted. Godlewski v. State , 256 Ga. App. 35, 36 567 SE2d 704 2002 reversing defendant’s conviction for speeding where record was silent as to the waiver of his right to counsel. The State bears the burden of demonstrating through a trial transcript or extrinsic evidence
that the accused understood 1 the nature of the charges against him, 2 any statutory lesser included offenses, 3 the range of possible punishments for the charges, 4 possible defenses, 5 mitigating circumstances, and 6 any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver. Footnote omitted. McAdams v. State , 258 Ga. App. 250, 251 1 573 SE2d 501 2002.
