X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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 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. 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 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: 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.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

Our client, a boutique litigation firm established by former BigLaw partners, is seeking to hire a junior-mid level associate their rapidly ...


Apply Now ›

Shipman & Goodwin LLP is seeking an associate to join our corporate and transactional practice. Candidates must have four to eight years...


Apply Now ›

SENIOR ASSOCIATE ATTORNEY, BOUTIQUE LAW FIRM, CORPORATE LAW We provide strategic advisory and legal services to the world's leading archite...


Apply Now ›