We granted Derrick Clowers application for a certificate of probable cause to appeal in this habeas corpus case to determine whether the record supports the finding of the habeas court that Clowers made a knowing and intelligent waiver of his right to counsel at the time he entered his guilty plea. We conclude that the record does not support that Clowers made a knowing and intelligent waiver and accordingly reverse his conviction.
It is undisputed that in February 1994 Clowers pled guilty to one count of robbery by sudden snatching for stealing sixty dollars from the wife of a minister. Clowers received a sentence of twenty years, ten to serve, on the condition that he testify against his co-defendant. Clowers was unrepresented at the guilty plea hearing and elected to enter a guilty plea after an assistant district attorney and a state investigator told Clowers that the State would seek the maximum sentence for the crime unless he entered the plea and agreed to give the testimony against his co-defendant. Clowers contends the negotiation took place in a room outside of the courtroom; the State contends that the meeting took place at a table in the courtroom. Clowers signed a written acknowledgment and waiver of rights form before he made an appearance before the trial judge. Once before the judge the ADA presented the waiver of rights form. No inquiry was made to ascertain whether Clowers wanted an attorney or whether he was entering his plea freely and voluntarily, with knowledge of the rights he was thereby waiving. The only question asked of Clowers by the trial court before the court accepted the plea was, “You understand the ADA is recommending to me that you get a sentence or a total of twenty, to serve the first ten, and that you would plead if I go along with that. Is that your understanding now” When Clowers replied, “Yes, sir,” the trial court accepted his plea. The trial court then questioned Clowers to determine whether he “understood all of his rights in this case”. This inquiry included the trial court telling Clowers that, “you have the right to have a trial by a jury, and you have the right to have an attorney appointed to represent you, but you give up these rights if you plead guilty here now.” The trial court then offered to allow him to withdraw his plea if he “wanted to go to trial.”
