Post-Conviction Relief for Immigrants

The great majority of convictions occurs in cases in which the defendant was represented by counsel.  Generally speaking, it is only in more minor cases that the court will take a waiver of the right to counsel, and allow the defendant to represent him- or herself.  It is usually more difficult to set aside a conviction in a case in which a defendant was in propria personam, since no claims of ineffective assistance of counsel can be raised, so long as the court adequately described for the defendant the dangers and disadvantages of self-representation.  To take a valid waiver of counsel, the court must also adequately inform the defendant of the penalties that may be inflicted upon conviction.[24]

            The United States Supreme Court has granted certiorari to consider the question whether an uncounseled plea is defective (for lack of a valid waiver of counsel) if tendered in the absence of a warning from the trial court of the right to counsel in plea proceedings and the dangers of self-representation in that context.[25]  At least 23 state and federal jurisdictions recognize that such a warning is required.  Georgia, Kentucky, Maryland, and North Dakota have not explicitly delineated the minimum requirement for ensuring a knowing and valid waiver of counsel in the context of a plea proceeding. The Supreme Court of Georgia has not announced a specific minimum inquiry that would ensure a knowing, voluntary and intelligent waiver.[26]  Georgia, however, has unambiguously held that a guilty plea colloquy is not sufficient to establish the validity of the defendant’s waiver.[27]  In Larry v. Hicks,[28] the defendant pled guilty to several charges. The trial court engaged in a plea colloquy with the defendant, reviewing the rights available if the defendant elected a jury trial. The court stated, “You would have the right to the assistance of an attorney throughout the trial. If you couldn’t afford to employ one, I would appoint one to assist you.  Do you understand those rights?” Larry stated he did understand, and the court did not otherwise mention the assistance of counsel. In this context, the Georgia Supreme Court held that the trial court had failed to establish a valid waiver of counsel under the Sixth Amendment. The court did not, however, define the minimum inquiry which would be required.[29]

[24] United States v. Erskine, 355 F.3d 1161 (9th Cir. January 21, 2004) (waiver of right to counsel held invalid, since court failed to advise defendant of the possible penalties he faced, and the record shows that he did not understand them when he chose to represent himself).

[25] Iowa v. Tovar, 156 L.Ed.2d 703, 124 S. Ct. 44, 2003 U.S. LEXIS 5432, 72 U.S.L.W. 3234 (U.S. 2003); see State v. Tovar, 656 N.W.2d 112 (Iowa 2003).

[26] See Larry v. Hicks, 491 S.E.2d 373 (Ga. 1997).

[27] Id. at 374-375, n.13.

[28] Larry v. Hicks, 491 S.E.2d 373 (Ga. 1997).

[29] Id. at 374-375.