State of Tennessee v. Christopher Michael Fiedler

05/04/2026

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 3, 2026

STATE OF TENNESSEE v. CHRISTOPHER MICHAEL FIEDLER

Appeal from the Circuit Court for Henry County

No. 17112 Bruce Irwin Griffey, Judge

___________________________________

No. W2025-00621-CCA-R3-CD

___________________________________

The Defendant, Christopher Michael Fiedler, appeals his Henry County Circuit Court

conviction of driving on a suspended license, for which he received a sentence of 180 days’

incarceration. On appeal, the Defendant argues that he is entitled to a new trial because

the trial court erred by finding that he knowingly and voluntarily waived his right to the

assistance of counsel. He also argues that he is entitled to a new sentencing hearing because

the trial court failed to consider the purposes and principles of sentencing or to make the

requisite findings pursuant to State v. Hooper, 29 S.W.3d 1, 13 (Tenn. 2000), in support of

its determination that confinement was particularly suited to provide an effective

deterrence to others likely to commit similar offenses. The State responds that the

Defendant knowingly and voluntarily waived his right to counsel and that the trial court

did not abuse its discretion in imposing a within range sentence. Following our review, we

reverse the Defendant’s conviction and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Circuit Court Reversed; Case Remanded

STEVEN W. SWORD, J., delivered the opinion of the court, in which KYLE A. HIXSON and

MATTHEW J. WILSON, JJ., joined.

Brennan M. Wingerter, Assistant Public Defender – Appellate Division (on appeal); Erica

Paschall, Paris, Tennessee (as elbow counsel at trial); and Christopher Michael Fiedler,

Paris, Tennessee, Pro Se (at trial).

Jonathan Skrmetti, Attorney General and Reporter; Elizabeth Helen Evan, Assistant

Attorney General; Neil Thompson, District Attorney General; and Morgan Crocker and

Andy Clark, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

On November 4, 2024, a Henry County grand jury returned a one-count indictment

charging the Defendant with driving on a suspended license, a Class B misdemeanor.

Tenn. Code Ann. § 55-50-504(a)(1). On December 13, 2024, the trial court appointed the

District Public Defender’s Office (first counsel) to represent the Defendant.

On January 14, 2025, first counsel filed a motion to withdraw from the Defendant’s

case, alleging that she and the Defendant had a “fundamental disagreement” which

prohibited the attorney-client relationship from continuing. The trial court denied first

counsel’s motion to withdraw on January 30, 2025, following a hearing. On February 5,

2025, first counsel filed a second motion to withdraw. In this motion, first counsel noted

that the trial court had denied her first motion to withdraw because the Defendant had stated

his desire for first counsel to remain as his attorney. First counsel reiterated that she and

the Defendant had a “fundamental disagreement” and stated her belief that the Defendant

would not be satisfied with her representation. On February 10, 2025, the trial court

granted first counsel’s motion to withdraw and appointed substitute counsel (trial counsel).

On April 4, 2025, the Defendant, through trial counsel, filed a signed waiver of his right to

a jury trial. The Defendant’s case proceeded to a bench trial on April 8, 2025.

At the outset of the Defendant’s bench trial, the trial court noted that it had recently

met in chambers with trial counsel and the prosecutors. During this meeting, trial counsel

informed the trial court that the Defendant “indicated” he was dissatisfied with trial

counsel’s representation and would prefer to proceed pro se. The Defendant stated he

would prefer that he and trial counsel “work together,” with trial counsel serving as co-

counsel. The Defendant averred that he believed trial counsel would not allow him to ask

questions he considered relevant, even if she served as co-counsel.

The trial court, while noting that it was unsure what the Defendant’s arguments and

defenses would be, then discussed this court’s opinion in State v. Murphy, No. W2023-

01332-CCA-R3-CD, 2024 WL 4579304 (Tenn. Crim. App. Oct. 25, 2024), no perm. app.

filed. The trial court summarized the facts of that case and this court’s holding, likened it

to the Defendant’s case, and stated,

[I]f that’s your claim, that you never applied for a driver’s license, therefore

you can’t be, uh, charged with driving on a revoked driver’s license or

privilege, this case is going – I’m going to follow the law. And the [Court of

Criminal] Appeals says this is the law, so this is the law I’m going to follow.

-2-

So, if that is your defense, you might want to consult with your attorney and

talk with the State about, perhaps, resolving it differently.

The trial court stated that it would permit the Defendant to discuss how he intended to

proceed with trial counsel, noting that “if you represent yourself, I’m going to allow [trial

counsel] to stay there as co-counsel, and she can advise you what she, legally, thinks you

ought to do.”

Following a brief recess, the Defendant informed the trial court that he wished trial

counsel to “stay on as co-counsel.” The trial court stated that trial counsel would not

“technically” serve as co-counsel and that “it’s either she’s your attorney and you’re the

client, or you’re going to be representing yourself” with trial counsel serving as elbow

counsel. The trial court further explained that if the Defendant wished to proceed with trial

counsel serving as elbow counsel, then trial counsel would “provid[e] legal advice” which

the Defendant was free to accept or reject while the Defendant represented himself.

The Defendant responded that he would prefer trial counsel to serve as elbow

counsel. However, he then asked, “Elbow counsel is, kind of, a co-counsel, right?” The

trial court reiterated that trial counsel would serve only to advise the Defendant as he

represented himself and that the Defendant was free to accept or reject her advice. The

Defendant responded, “Okay.”

The trial court then questioned the Defendant regarding his decision “to make sure

this decision you’re making is being done freely, knowingly, and voluntarily.” The trial

court asked the Defendant his age; his highest education level; his employment history;

whether he could read and write; whether he was an attorney or possessed a law degree;

whether he had previously taken any special education courses; whether he had previously

been treated for any mental health issues; and whether he understood the nature of his

charge and its associated penalties. The Defendant testified that he was forty-nine years

old; that he did not complete high school; that he had previously worked for twenty years

as a licensed carpenter and had completed certain “union courses” in that profession; that

he could read and write; that he had not previously taken any special education courses;

that he had never been treated for any mental health issues; and that he understood he was

charged with a Class B misdemeanor and faced a maximum sentence of six months’

incarceration and a fine of $500.

The trial court then discussed “an increase in the number of . . . sovereign citizen

claims.” The trial court asked the Defendant whether he had “read something, or if

someone’s indicated to you in some written materials, or ha[s] spoken with you and advised

you what they believe, legally, the law is concerning your ability to . . . operate a motor

vehicle without applying for a driver’s license or a privilege.” The Defendant initially

-3-

denied that he had previously discussed his defense with anyone and stated that his

argument did not relate to “being a sovereign citizen.” He averred that his defense would

discuss “the actual privilege and the actual right” and would distinguish between the

“leisure side” and the “actual business-side of this privilege.” The trial court stated that

the statute does not distinguish “between private leisure and public commercial” and is,

instead, primarily concerned with public safety. The trial court again asked the Defendant

whether he had consulted with anyone about his defense. The Defendant conceded that he

had “talked to a few people” and “listened to a few people,” including an individual from

East Tennessee, but averred that he had “mostly” researched his defense on his own. The

trial court stated that this individual may be engaged in the unauthorized practice of law

and referred the matter to the District Attorney General’s Office “for review and

investigation.”

The trial court then asked the Defendant if he was sure he wanted to represent

himself, and the Defendant stated he was. The trial court again asked the Defendant if he

understood he could receive a sentence of six months’ incarceration if convicted, and the

Defendant stated he understood. At this point, trial counsel interjected and stated that she

had advised the Defendant regarding the advantages and disadvantages of representing

himself and that the Defendant had decided “to move forward with the decision he stated

to the [c]ourt.”

Following this colloquy, the trial court stated,

[Trial counsel], I’ll ask you to stay on as, uh, elbow counsel.1 You’re –

you’re legally relieved from any obligations concerning representation. I –

as a favor to the [c]ourt, I’d simply ask you that if [the Defendant] has any

questions about the law, how to do something, you can advise him what your

understanding of the law is. And he can take your advice or not take your

advice; there’s no consequences to you. [The Defendant] is on his own in

these proceedings.

The trial court then heard opening statements.

Following opening statements, the State called Paris Police Department Lieutenant

Michael Ramos to testify. Lieutenant Ramos testified that at approximately 1:59 p.m. on

July 3, 2024, he drove along Maurice Fields Drive and saw the Defendant driving away

from a nearby park on a motor scooter. Lieutenant Ramos believed, based upon his “prior

knowledge,” that the Defendant’s driver’s license had been previously suspended, and

called dispatch to confirm this suspicion. After confirming that the Defendant’s driver’s

1

For consistency, we will hereafter refer to trial counsel as “elbow counsel.”

-4-

license was still suspended, Lieutenant Ramos drove his police vehicle behind the

Defendant and activated his emergency lights while on Volunteer Drive. He stated that the

Defendant pulled his vehicle over on the nearby Emerald Cove. Lieutenant Ramos testified

that each of these roads was publicly maintained.

Lieutenant Ramos stated that he informed the Defendant that his driver’s license

was still suspended. The Defendant responded that he “knew that” and averred that he was

“traveling” and “not driving.” After speaking with the District Attorney General’s Office,

Lieutenant Ramos issued the Defendant a citation and had the Defendant’s motor scooter

towed. He testified that the Defendant’s motor scooter was not registered. A copy of the

Defendant’s official driver’s record from the State of Tennessee’s Department of Safety,

which stated that the Defendant’s driver’s license was suspended on August 12, 2023, was

entered as an exhibit over the Defendant’s objection.

On cross-examination, Lieutenant Ramos recalled that the Defendant’s motor

scooter had a seat compartment. He averred that he “probably” opened the seat

compartment during his investigation and that the Defendant removed items from the

compartment during the stop. He was unsure what specific items the Defendant removed

from the compartment. He stated that he did not see anyone besides the Defendant on the

motor scooter. He reiterated that he knew that the Defendant’s driver’s license was

suspended when he initiated the stop. He stated that he did not observe any safety hazards

posed by the Defendant when he initiated the stop, aside from the Defendant’s driving on

a suspended license. He also stated that the Defendant’s motor scooter was never registered

as a motor vehicle and that he knew from “prior dealings” with the Defendant that his

motor scooter was “over 49ccs” and required a driver’s license to operate.

The State rested, and the Defendant presented no additional proof. Upon this

evidence, the trial court found the Defendant guilty as charged without hearing closing

arguments.2

During sentencing, the State requested that the trial court impose the maximum

within-range sentence of 180 days’ incarceration and affix a $500 fine, arguing that “other

less restrictive ways to address this situation have not worked” and citing the need to

“protect the public at large.” The Defendant elected not to present arguments during

sentencing.

2

Both the State and the defendant in a criminal prosecution have the right to present closing

arguments. Tenn. R. Crim. P. 29.1. However, neither side objected during the trial, nor is that issue before

us in this appeal.

-5-

The trial court again cited this court’s opinion in Murphy, which it described as

“squarely address[ing] the issue in this case” and as indicating that the Defendant “just

lose[s] legally.” The trial court again addressed the State’s compelling interest in

protecting public safety by requiring a driver’s license in order to operate motor vehicles

on public roads. The trial court also noted that it was “extremely concerned that someone

is giving [the Defendant] legal advice contrary to state law.”

The trial court asked the State whether the Defendant had been previously charged

with similar offenses. The State agreed that this was not the “first time he’s been pulled

over for this,” but noted that this was the Defendant’s first conviction of driving on a

suspended license. The trial court found that the Defendant had “been through the court

process before and advised what the law requires him to do.” The State agreed that the

Defendant had been informed by officers and “district attorneys” as to “what the law

requires him to do regarding operating that motor vehicle . . . on the public streets of Paris.”

The Defendant responded that he had previously been charged with similar offenses six

times since 2021 and that each offense was dismissed. He denied that he had been told that

the law required him to get a driver’s license in order to drive his motor scooter on public

roads during those proceedings. He also denied that he had gotten a driver’s license during

the pendency of his case.

The trial court made the following findings in imposing the Defendant’s sentence:

[Defendant], we’ve spent all morning here. Uh, the [c]ourt, uh,

provided both the State and your defense attorney at the time, [elbow

counsel], with clear case law regarding the issue you’re trying to raise and

argue concerning the legality of whatever of you operating this motor vehicle

on the streets of, uh, Paris, Henry County, Tennessee, without having a

license obtained by the Tennessee Department of Safety. It’s illegal to do

that. The Legislature certainly has the authority to do that.

Um, this sentence is not just for you in this case, although part of it is,

but a part of this sentence is to, um, let everyone else know in the community

that this behavior will not be tolerated. Uh, you have – these district attorneys

and the law enforcement that are here today, we’ve got major

methamphetamine problems in this district, other issues, the time they’re

expending on this case takes away from those cases. Now, you’re certainly

entitled to every legal argument you want to in defense. But, quite frankly,

you don’t really have a defense based upon the case law that was sent. Uh,

you’ve really, pretty much, just wasted everybody’s time here, uh, with a –

in the [c]ourt’s opinion – nonsensical defense. There’s just no basis for it. It

makes no sense.

-6-

There’s no Supreme Court case law or anything out there, or non-

citizen, or traveler’s privilege, notice, administrative – anything like that.

That’s all just nonsense, [the Defendant]. I don’t know who you’re listening

to, but they’re idiots if you’re listening to somebody else. They don’t know

the law; they probably don’t have a law degree. Anyone with a law degree

would never advise you of that. Uh, your attorney, I believe, essentially,

tried to advise you of that, and advise you in this case; you chose to ignore

her.

Based upon all your decisions and what’s important is that the

disposition in this case sends a clear message to everyone else, the [c]ourt’s

going to sentence you to the maximum one hundred-and-eighty days in the

county jail.

This timely appeal followed.

II. ANALYSIS

On appeal, the Defendant argues that he is entitled to a new trial because the trial

court denied him the assistance of counsel without a knowing and voluntary waiver of said

right. He also argues that he is entitled to a new sentencing hearing because the trial court

failed to consider the purposes and principles of sentencing or to make the requisite

findings pursuant to State v. Hooper, 29 S.W.3d at 13, in support of its determination that

confinement was particularly suited to provide an effective deterrence to others likely to

commit similar offenses. The State responds that the Defendant knowingly and voluntarily

waived his right to counsel and that the trial court did not abuse its discretion in imposing

a within-range sentence. We agree with the Defendant.

A. WAIVER OF THE RIGHT TO COUNSEL

The Defendant first argues that the trial court erred by denying him the right to

assistance of counsel and that he did not knowingly and voluntarily waive the right.

Specifically, the Defendant argues that he did not sign a written waiver pursuant to

Tennessee Rule of Criminal Procedure 44; that his statements indicated he did not

understand the ramifications of such a waiver or of proceeding pro se; and that the trial

court’s inquiry was insufficient to ensure he was knowingly and voluntarily waiving his

right to counsel. The State responds that the absence of a written waiver is not dispositive

and that the trial court’s inquiry was sufficient and “followed all the requisite procedures.”

-7-

Both the Constitution of the United States and the Constitution of Tennessee

guarantee criminal defendants the right to counsel in prosecutions. U.S. Const. amend. VI

(“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defence.”); Tenn. Const art. 1, § 9 (“That in all criminal prosecutions,

the accused hath the right to be heard by himself and his counsel[.]”); Gideon v.

Wainwright, 372 U.S. 335, 342 (1963) (incorporating the Sixth Amendment right to

counsel to the states via the Fourteenth Amendment); see also State v. Willis, 196 S.W.3d

653, 702-03 (Tenn. 2016) (“Tennessee courts have consistently interpreted the right to

counsel under article I, section 9 of the Tennessee Constitution as identical to the Sixth

Amendment right to counsel.”). These concomitant rights also guarantee a criminal

defendant’s right to self-representation. Faretta v. California, 422 U.S. 806, 821-22

(1975); State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). A criminal defendant’s

right to the assistance of counsel and to self-representation are alternative rights; that is, “a

criminal defendant cannot logically waive or assert both rights” because “waiver of one

right constitutes a correlative assertion of the other.” State v. Burkhart, 541 S.W.2d 365,

368 (Tenn. 1976). In other words, a criminal defendant must waive his or her right to the

assistance of counsel in order to assert the right to self-representation. State v. Hester, 324

S.W.3d 1, 30 (Tenn. 2010). There is no constitutional right to “hybrid” representation in

which a criminal defendant participates with counsel in his or her defense, although a trial

court may, under certain exceptional circumstances, permit such representation. State v.

Berry, 141 S.W.3d 549, 574 (Tenn. 2004).

A criminal defendant wishing to waive his or her right to the assistance of counsel

must do so in writing, and such writing must be included in the record. Tenn. R. Crim. P.

44(b)(2), (3); Hester, 324 S.W.3d at 31. In order to assert the right to self-representation,

a defendant must (1) timely request to proceed pro se, (2) clearly and unequivocally assert

the right to self-representation, and (3) knowingly and intelligently waive the right to the

assistance of counsel. State v. McCary, 119 S.W.3d 226, 256 (Tenn. Crim. App. 2003)

(citing State v. Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988)). In determining

whether a defendant has validly waived the right to the assistance of counsel, a trial court

must “advise the accused in open court of the right to the aid of counsel at every stage of

the proceedings” and “determine whether there has been a competent and intelligent waiver

of such right by inquiring into the background, experience, and conduct of the accused, and

other appropriate matters.” Tenn. R. Crim. P. 44(b)(1). The trial court must also ensure

the defendant is apprised of “the nature of the charges, the statutory offenses included

within them, the range of allowable punishments thereunder, possible defenses to the

charges and circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).

Questions of a defendant’s valid invocation of the rights to self-representation or to

the assistance of counsel present mixed issues of law and fact. State v. Jones, 568 S.W.3d

-8-

101, 124 (Tenn. 2019). Under this standard of review, we presume the trial court’s findings

of fact are correct unless the record preponderates against them; we review the trial court’s

conclusions of law de novo. Id.; State v. Holmes, 302 S.W.3d 831, 837 (Tenn. 2010). A

trial court’s wrongful denial of a defendant’s right to counsel constitutes structural error,

requiring automatic reversal. Holmes, 302 S.W.3d at 838; see also State v. Rodriguez, 254

S.W.3d 361, 371 (Tenn. 2008) (holding that structural constitutional errors, including the

denial of the right to counsel or self-representation, “are not amenable to harmless error

review” because they “compromise the integrity of the judicial process” and, thus, require

automatic reversal).

As the Defendant correctly notes, the record contains no written waiver of the

Defendant’s right to counsel as required by Tennessee Rule of Criminal Procedure 44. The

State, relying upon this court’s opinion in State v. Thomas, No. W2023-01346-CCA-R3-

CD, 2025 WL 2057942 (Tenn. Crim. App July 23, 2025), perm. app. denied (Tenn. Dec.

11, 2025), insists that this point should not be dispositive. Indeed, as we noted in that case,

“the absence of a written waiver does not necessarily preclude a constitutionally valid

waiver.” Id. at *19 (internal quotation marks omitted) (first quoting State v. Hatch, No.

W2000-01005-CCA-R3-CD, 2001 WL 1268442, at *6 (Tenn. Crim. App. Oct. 19, 2001),

perm. app. denied (Tenn. Apr. 1, 2002); then citing State v. McClain, No. W2019-01217-

CCA-R3-CD, 2021 WL 3828380, at *15 (Tenn. Crim. App. Aug. 26, 2021), perm. app.

denied (Tenn. Dec. 8, 2021); and then citing State v. Black, No. 02C01-9803-CR-00081,

1999 WL 280810, at *4 (Tenn. Crim. App. May 7, 1999), perm. app. denied (Tenn. Sept.

25, 2000)).

However, this case is factually and legally distinguishable from Thomas and the

cases upon which it relied. In Thomas, we reasoned that a defendant who consistently

requested the removal and substitution of counsel waived his right to counsel both

explicitly, by stating that he would prefer to proceed pro se if counsel were not removed,

and implicitly, by repeatedly filing motions on his own behalf despite his legal

representation. Thomas, 2025 WL 2057942, at *18-19. We also noted that Rule 44 “does

not specify a particular form that the written waiver must follow.” Id. at *19 (citing State

v. Battles, No. W1998-00558-CCA-R3-CD, 1999 WL 1525475, at *8 n.5 (Tenn. Crim.

App. Dec. 30, 1999), no perm. app. filed). Although our analysis was somewhat frustrated

by the poor state of the appellate record in that case, we nevertheless determined that under

those facts, the absence of the defendant’s written waiver of his right to counsel did not

warrant reversal. Id. at *19.

The cases upon which Thomas relied support this conclusion. In Battles, this court

determined, in a footnote, that the defendant’s statement in his written filings that he

appeared in propria persona was “sufficient to satisfy the written waiver requirement

because these motions were initiated by the defendant and the assertion was made

-9-

repeatedly.” Battles, 1999 WL 1525475, at *8 n.5. In McClain, this court reasoned that

the defendant implicitly waived his right to counsel and indicated his intention to proceed

pro se by continuously submitting pro se filings despite his legal representation; this court

also noted that the defendant “had previously demonstrated an unwillingness to sign

written waivers and acknowledgments.” McClain, 2021 WL 3828380, at *15. In other

cases, when confronted with a complete absence of a written waiver, we have nevertheless

concluded that the trial court’s intensive inquiry into a defendant’s decision to proceed pro

se and its conclusion that such a decision was made knowingly and voluntarily were

sufficient to protect a defendant’s right to counsel and rendered any noncompliance with

Rule 44’s requirements harmless. Hatch, 2001 WL 1268442, at *6; Black, 1999 WL

280810, at *4. In each case, we concluded that the trial court had conducted the intensive

inquiry necessary to determine and conclude that the defendant knowingly and voluntarily

waived his right to counsel. Thomas, 2025 WL 2057942, at *18 (concluding that the trial

court’s inquiry “followed the guidelines” and that “[t]he record supports the trial court’s

conclusion that [the d]efendant had knowingly, voluntarily, and intelligently waived his

right to counsel and elected to represent himself in this case”); McClain, 2021 WL

3828380, at *15 (affirming the trial court’s finding that the defendant “testified, under oath,

that he knowingly, intentionally, intelligently, and freely intends to represent himself at his

jury trial and waives his right to appointed counsel and will further comply with the rules

of evidence and criminal procedure” after the trial court “thoroughly questioned the

defendant about his desire to represent himself and more than thoroughly cautioned the

defendant about choosing self-representation”); Hatch, 2001 WL 1268442, at *6 (“The

record in this case establishes that the trial court followed the requirements of Herrod,

asking substantially all the questions originally outlined in McDowell. The colloquy was

extensive.”); Battles, 1999 WL 1525475, at *9 (finding that, although the defendant

“thwarted” the trial court’s attempts to inquire into whether he was knowingly and

voluntarily waiving his right to counsel through his “obstinate assertion that he wanted to

represent himself,” “the trial court adequately investigated whether the defendant

knowingly and intelligently waived his right to counsel”); Black, 1999 WL 280810, at *5

(finding that the trial court’s implicit ruling that the defendant’s waiver of his right to

counsel was “adequately supported by the record” because the trial court’s “questions

substantially tracked those suggested by this [c]ourt in Herrod” and the trial court

“repeatedly warned” the defendant of “the dangers of self-representation”). Accordingly,

in order to find harmless error in the absence of a written waiver of the right to counsel,

there must be some proof in the record of the trial court’s conducting an intensive inquiry

into a defendant’s decision to waive his or her right to counsel in order to determine that

such waiver is knowingly and voluntarily made.

Unlike Thomas and the cases upon which it relied, the record in this case indicates

that the trial court failed to conduct the type of intensive inquiry necessary to determine

whether the Defendant’s waiver of his right to counsel was knowing and voluntary. This

- 10 -

court has previously recommended that trial courts consult the inquiries and questions

provided in 1 Bench Book for United States District Judges in discharging the duty of

determining whether a defendant has knowingly and intelligently waived the right to the

assistance of counsel. Herrod, 754 S.W.2d at 630 (citing United States v. McDowell, 814

F.2d 245, 251-52 (6th Cir. 1987)). These questions include:

(a) Have you ever studied law?

(b) Have you ever represented yourself or any other defendant in a criminal

action?

(c) You realize, do you not, that you are charged with these crimes: (Here

state the crimes with which the defendant is charged.)

(d) You realize, do you not, that if you are found guilty of the crime charged

in Count I the court must impose an assessment of at least $50 ($25 if a

misdemeanor) and could sentence you to as much as --- years in prison and

fine you as much as $---?

(Then ask him a similar question with respect to each other crime with which

he may be charged in the indictment or information.)

(e) You realize, do you not, that if you are found guilty of more than one of

those crimes this court can order that the sentences be served consecutively,

that is, one after another?

(f) You realize, do you not, that if you represent yourself, you are on your

own? I cannot tell you how you should try your case or even advise you as

to how to try your case.

(g) Are you familiar with the [Tennessee] Rules of Evidence?

(h) You realize, do you not, that the [Tennessee] Rules of Evidence govern

what evidence may or may not be introduced at trial and, in representing

yourself, you must abide by those rules?

(i) Are you familiar with the [Tennessee] Rules of Criminal Procedure?

(j) You realize, do you not, that those rules govern the way in which a

criminal action is tried in [this] court?

- 11 -

(k) You realize, do you not, that if you decide to take the witness stand, you

must present your testimony by asking questions of yourself? You cannot

just take the stand and tell your story. You must proceed question by

question through your testimony.

(l) (Then say to the defendant something to this effect): I must advise you

that in my opinion you would be far better defended by a trained lawyer than

you can be by yourself. I think it is unwise of you to try to represent yourself.

You are not familiar with the law. You are not familiar with court procedure.

You are not familiar with the rules of evidence. I would strongly urge you

not to try to represent yourself.

(m) Now, in light of the penalty that you might suffer if you are found guilty

and in light of all of the difficulties of representing yourself, is it still your

desire to represent yourself and to give up your right to be represented by a

lawyer?

(n) Is your decision entirely voluntary on your part?

(o) If the answers to the two preceding questions are in the affirmative, [and

in your opinion the waiver of counsel is knowing and voluntary,] you should

then say something to the following effect:

“I find that the defendant has knowingly and voluntarily waived his right to

counsel. I will therefore permit him to represent himself.”

(p) You should consider the appointment of standby counsel to assist the

defendant and to replace him if the court should determine during trial that

the defendant can no longer be permitted to represent himself.

McDowell, 814 F.2d at 251-52 (quoting Guideline For District Judges from 1 Bench Book

for United States District Judges 1.02-2 to -5 (3d ed. 1986)). Generally, “the competence

that is required of a defendant seeking to waive his right to counsel is the competence to

waive the right, not the competence to represent himself.” Hester, 324 S.W.3d at 31

(quoting Godinez v. Moran, 509 U.S. 389, 399 (1993)); see also McCary, 119 S.W.3d at

256 (“A defendant need not have legal training or experience in order to completely and

intelligently elect self-representation.”).

The trial court’s colloquy in this case fell short of the type of intensive inquiry

required to ensure that the Defendant’s decision to waive his right to counsel was knowing

and voluntary. To be sure, the trial court appropriately inquired into the Defendant’s

- 12 -

background by asking about his age, highest education level, employment history, whether

he was an attorney or had a law degree, whether he had previously taken any special

education courses, and whether he had ever been treated for mental illness. The trial court

also appropriately ensured the Defendant understood the nature of his charge and its

associated penalties if the Defendant was convicted.

However, the trial court neglected to ask the Defendant whether he had previously

represented himself in other criminal proceedings. It also did not ask the Defendant if he

was familiar with the Tennessee Rules of Evidence or the Tennessee Rules of Criminal

Procedure, nor did it ensure that the Defendant understood their applicability in his case.

The trial court did not discuss the ramifications of the Defendant’s testifying on his own

behalf during trial or ask whether he understood that he would need to ask himself

questions, as he would with any other witness, if he chose to testify. Importantly, the trial

court also did not ask the Defendant whether he knowingly and voluntarily waived his right

to counsel. In fact, the trial court did not inform the Defendant of his Sixth Amendment

right to counsel at any point before, during, or after its inquiry.

The trial court instead devoted approximately one-half of its discussion during the

inquiry to questioning the Defendant about his legal defense and, specifically, about the

individual who advised the Defendant regarding his defense. Although the trial court

opined on the merits of that defense and counseled the Defendant to consider discussing it

and alternative methods of resolving his case with elbow counsel and the State, it fell short

of ensuring the Defendant knowingly and voluntarily assumed the obligation of presenting

that defense on his own behalf. And while the trial court’s concern that the Defendant

potentially received unsound advice from an individual engaged in the unauthorized

practice of law is understandable, the trial court’s duty during this inquiry was not to probe

into the background of the Defendant’s defense but rather to ensure the Defendant

understood the ramifications of his waiving his constitutional right to counsel.

The trial court’s inquiry fell short of the requirements to ensure the Defendant’s

waiver was knowing and voluntary; therefore, the judgment requires reversal. Von Moltke,

332 U.S. at 724; see also State v. Prince, No. M2020-01302-CCA-R3-CD, 2021 WL

5710541, at *7 (Tenn. Crim. App. Dec. 2, 2021), no perm. app. filed. Further, Rule 44

requires that a defendant waive his or her right to counsel in writing and that the written

waiver be included in the record. Tenn. R. Crim. P. 44(b)(2)-(3). While noncompliance

with those requirements may ultimately amount to harmless error when a trial court

conducts a sufficient inquiry into a defendant’s decision to waive his or her right to counsel,

it is still, nevertheless, error. In cases where, as here, the trial court’s inquiry is

constitutionally deficient, that error exacerbates the constitutional injury. Accordingly, the

Defendant’s conviction is reversed, and this case is remanded for a new trial. On remand,

if the Defendant indicates his desire to waive his right to counsel and proceed pro se, the

- 13 -

trial court should conduct the necessary inquiry suggested by this court in Herrod and in 1

Bench Book for United States District Judges, ensure that the Defendant’s decision is made

knowingly and voluntarily, and obtain any waiver of such right in writing.

B. SENTENCING

Having reversed the Defendant’s conviction and remanded for a new trial,

determination of the Defendant’s sentencing claim is unnecessary. Nevertheless, in the

interest of judicial economy and in the event of further appellate review, we will briefly

consider the Defendant’s arguments.

The Defendant argues that the trial court erred in imposing his sentence of 180 days’

incarceration because it failed to consider the purposes and principles of sentencing or to

make the requisite findings to support its determination that confinement was particularly

suited to provide an effective deterrence to others likely to commit similar offenses

pursuant to Hooper, 29 S.W.3d at 13. The State responds that the trial court properly

considered the purposes and principles of sentencing; that the trial court was not required

to make the specific Hooper considerations before imposing a sentence of confinement

because it also based its sentencing decision on the Defendant’s criminal history; and that

the trial court did not abuse its discretion in imposing a within-range sentence.

The Defendant was convicted of driving on a suspended license, a Class B

misdemeanor with a maximum sentence of six months’ (180 days’) incarceration. Tenn.

Code Ann. § 55-50-504(a)(1); 40-35-111(e)(2). We review a trial court’s sentencing

determinations for abuse of discretion. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

Additionally, where the trial court imposes a within-range sentence, “and the record

demonstrates that the sentence is otherwise in compliance with the purposes and

principles” of the Sentencing Act, we afford its sentencing determinations a presumption

of reasonableness. Id. A trial court abuses its discretion in the context of sentencing

determinations by applying an incorrect standard of law or reaching a decision contrary to

logic or reasoning that causes prejudice to the complaining party. State v. Bonds, 502

S.W.3d 118, 166 (Tenn. Crim. App. 2016) (citing State v. Shuck, 953 S.W.2d 662, 669

(Tenn. 1997)). We apply this same standard of review to both felony and misdemeanor

sentences. See State v. King, 432 S.W.3d 316, 324 (Tenn. 2014) (“Bise and its progeny

establish that the abuse of discretion standard of appellate review accompanied by a

presumption of reasonableness applies to all sentencing decisions.”); State v. Hampton,

No. W2018-00623-CCA-R3-CD, 2019 WL 1167807, at *12 (Tenn. Crim. App. Mar. 12,

2019) (collecting cases applying the Bise standard of review to misdemeanor sentencing

issues), no perm. app. filed.

- 14 -

A trial court generally has greater latitude and flexibility during misdemeanor

sentencing than in felony sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim.

App. 1999). For example, a trial court is not required to hold a separate sentencing hearing

for misdemeanor convictions, see Tenn. Code Ann. § 40-35-302(a), and misdemeanor

convictions generally carry no presumptive minimum sentences, see State v. Cooper, 336

S.W.3d 522, 524 (Tenn. 2011). In imposing a misdemeanor sentence, the trial court must

also “fix a percentage of the sentence that the defendant shall serve” by considering the

purposes and principles of sentencing and the enhancement and mitigating factors to ensure

the percentage of confinement is not arbitrarily imposed. Tenn. Code Ann. § 40-35-302(d).

Nevertheless, the purposes and principles of sentencing generally considered in affixing

felony sentences also apply to misdemeanor sentences. See id. §§ 40-35-102, -103; State

v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). Included among these purposes and

principles is the balancing consideration that “the sentence imposed should be the least

severe measure necessary to achieve the purposes for which the sentence is imposed[,]”

while also acting as an effective deterrent to future violations of the law. See Tenn. Code

Ann. §§ 40-35-102(3)(A), -103(4). Although the trial court is not required to make

particularly lengthy or detailed findings on the record in its consideration of these factors,

it must nevertheless “set forth enough to satisfy the appellate court that [it] has considered

the parties’ arguments and has a reasoned basis for imposing the sentence.” Bise, 380

S.W.3d at 705-06 (citing Rita v. United States, 551 U.S. 338, 356-57 (2007)). Furthermore,

both felony and misdemeanor sentences involving confinement may be imposed where:

(A) Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1); State v. Ruiz, 716 S.W.3d 439, 458 (Tenn. Crim. App.

2024).

The Defendant asserts that the trial court based his sentence of 180 days’

incarceration solely upon the need to provide an effective deterrence to others likely to

commit similar offenses and, accordingly, that its decision should be subjected to a

heightened standard of review. When a trial court sentences a defendant to confinement

based solely upon the need for deterrence, the record must contain evidence “which would

enable a reasonable person to conclude that (1) deterrence is needed in the community,

- 15 -

jurisdiction, or state, and (2) the defendant’s incarceration may rationally serve as a

deterrent to others similarly situated and likely to commit similar crimes.” Hooper, 29

S.W.3d at 13.

In determining whether a defendant’s incarceration is “particularly suited” towards

ameliorating the need for deterrence, the trial court should consider

(1) Whether other incidents of the charged offense are increasingly present

in the community, jurisdiction, or in the state as a whole;

(2) Whether the defendant’s crime was the result of intentional, knowing, or

reckless conduct or was otherwise motivated by a desire to profit or gain

from the criminal behavior;

(3) Whether the defendant’s crime and conviction have received substantial

publicity beyond that normally expected in the typical case;

(4) Whether the defendant was a member of a criminal enterprise, or

substantially encouraged or assisted others in achieving the criminal

objective; and

(5) Whether the defendant has previously engaged in criminal conduct of the

same type as the offense in question, irrespective of whether such conduct

resulted in previous arrests or convictions.

Id. at 10-12. However, when a trial court bases a defendant’s incarcerative sentence on

multiple considerations provided for in Code section 40-35-103(1), its decision is not

subjected to the same heightened standard of review. State v. Sihapanya, 516 S.W.3d 473,

476 (Tenn. 2014).

The State responds that Hooper’s heightened standard of review is inapplicable here

because the trial court based its sentencing determination on both the need for deterrence

and the Defendant’s lengthy criminal history. Regardless of the appropriate standard of

review, the trial court abused its discretion in concluding that confinement was warranted

on deterrence grounds. The trial court specifically stated that “what’s important is that the

disposition in this case sends a clear message to everyone else.” Although the trial court

discussed the Defendant’s having previously been through the court system on similar

charges and his continued failure to remedy his conduct, its discussion of deterrence came

in the context of a lengthy admonition regarding the merits of the Defendant’s legal

defense. As the State notes in its brief, the trial court emphasized that there had been

“several” cases of defendants advancing legal theories similar to the Defendant’s defense.

- 16 -

The trial court also admonished the Defendant that he had “wasted everybody’s time here”

with a “nonsensical defense.”

Inasmuch as the trial court based the Defendant’s sentence on the need to deter

similarly situated defendants from advancing the same “nonsensical defense,” it erred.

Axiomatically, criminal defendants have the right to counsel, and they have the right to

present a defense. Chambers v. Mississippi, 410 U.S. 284, 294 (1973); State v. Brown, 29

S.W.3d 427, 432 (Tenn. 2000). While this right is not absolute and must, in certain

appropriate circumstances, “yield to other legitimate interests in the criminal trial process,”

Brown, 29 S.W.3d at 432, the purpose of deterrence is on the need to preclude similar

offenses from occurring in the future, not as a basis for discouraging a particular type of

legal defense theory. See State v. Willoughby, No. E2023-01499-CCA-R3-CD, 2025 WL

1202079, at *10 (Tenn. Crim. App. Apr. 25, 2025) (“[W]hen a court considers the question

of incarceration, its focus is on the need for incapacitative measures, considering

amenability to rehabilitation as well as furthering notions of retributive justice and

deterrence.”) (citing Tenn. Code Ann. § 40-35-103(1)(A)-(C), (5) (2019)), no perm. app.

filed.

The trial court also based its sentencing determination, in part, on the need to deter

the Defendant from committing similar offenses, given his prior encounters with law

enforcement and the court system. Beyond the arguments of counsel and the Defendant’s

concession that he had previously been charged with similar offenses that were dismissed,

however, nothing in the record supports the trial court’s conclusion that the Defendant, in

fact, had a lengthy criminal history of similar past behavior. The record does not contain

a presentence report, nor does it indicate that one was prepared. The only evidence of the

Defendant’s prior criminal history in the record is a copy of his official driver’s record

from the State of Tennessee’s Department of Safety, which was made an exhibit to the

Defendant’s trial. The sole information contained in this report indicates that the

Defendant was cited for driving on a suspended license and that he failed to appear in court

on April 13, 2023. This falls short of proving the fact of the Defendant’s six prior dismissed

charges for similar criminal conduct. And although the Defendant conceded that he had

been previously similarly charged, and despite the trial court’s ability to accept such

concessions during sentencing, see State v. Garrens, No. W2024-00258-CCA-R3-CD,

2025 WL 1307696, at *7 (Tenn. Crim. App. May 6, 2025) (“[W]here the parties agree to

some aspects of sentencing, the trial court is not required to hold a hearing on those

issues.”), no perm. app. filed, we nevertheless note that while “criminal behavior other than

convictions may be properly considered during sentencing, the mere existence of a charge

is not sufficient to establish that the conduct occurred, and consideration of charges which

were either dismissed, diverted, or in which a forfeiture was entered, was error,” State v.

Franklin, No. M2018-01958-CCA-R3-CD, 2020 WL 4280692, at *24 (Tenn. Crim. App.

July 27, 2020) (internal quotation marks omitted) (quoting State v. Hensley, No. W2007-

- 17 -

00878-CCA-R3-CD, 2008 WL 2483886, at *4 (Tenn. Crim. App. June 18, 2008), no perm.

app. filed), perm. app. denied (Tenn. Nov. 12, 2020). The State bears the burden of

proving, by a preponderance of the evidence, facts relevant to a defendant’s sentencing

during a sentencing hearing. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998). It is

apparent that the State was familiar with the Defendant, who, by his own admission, had

previous experience with the court system. But when it came time to make its record and

prove the fact of that previous experience during sentencing, the State failed to carry its

burden of proof. The record preponderates against the trial court’s sentencing findings,

and the court abused its discretion in imposing a 180-day sentence of incarceration in this

case based upon the record before us.

III. CONCLUSION

Following our review of the record and based upon the foregoing analysis, we

reverse the judgment of the trial court. The Defendant’s conviction is reversed, and the

case is remanded for a new trial.

s/ Steven W. Sword

STEVEN W. SWORD, JUDGE

- 18 -