# State of Tennessee v. Marty E. Hughes

> Court of Criminal Appeals of Tennessee · December 30, 2016

URL: https://www.frixlaw.com/law-library/cases/4112473

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** December 30, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Camille R. McMullen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 26, 2016 Session

STATE OF TENNESSEE v. MARTY E. HUGHES

Appeal from the Criminal Court for Hawkins County
No. 14CR128 Thomas J. Wright, Judge
___________________________________

No. E2015-01907-CCA-R3-CD – Filed December 23, 2016
___________________________________

The Defendant-Appellant, Marty E. Hughes, was convicted by a Hawkins County jury of
two counts of aggravated assault. Although he was represented by appointed counsel at
trial, Hughes signed a waiver of his right to appointed counsel prior to his sentencing
hearing. He was subsequently sentenced as a Range III, persistent offender to concurrent
sentences of ten and fifteen years for his convictions. Thereafter, Hughes filed a pro se
notice of appeal before filing an untimely pro se motion for new trial. On appeal, Hughes
argues: (1) the trial court violated his due process rights and committed plain error when
it failed to expand the jury instruction on self-defense to include the rights of a person in
a dwelling; (2) the evidence is insufficient to sustain his convictions for aggravated
assault; (3) the trial court imposed an excessive sentence; and (4) his due process rights
were violated when he proceeded to the sentencing hearing as a pro se defendant who
was unaware and improperly advised of his right to file a motion for new trial. Because
the record shows that Hughes did not knowingly, voluntarily, and intelligently waive his
right to counsel prior to his sentencing hearing, we vacate the judgments of the trial court
and remand the case for appointment of new counsel and a new sentencing hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Cameron L. Hyder, Elizabethton, Tennessee (on appeal) and Joseph O. McAfee,
Greeneville, Tennessee (at trial) for the Defendant-Appellant, Marty E. Hughes.
Herbert H. Slatery, III, Attorney General and Reporter; Lacy E. Wilber, Senior Counsel;
Dan E. Armstrong, District Attorney General; M. Ryan Blackwell and Akiah C.
Highsmith, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

The evidence at trial established that on March 2, 2014, Hughes approached
Maquita Epps outside an apartment complex and said, “[Y]ou‟re . . . pretty. I want to get
some of that p[----].” Epps immediately informed her mother, Michelle Torres, and her
mother‟s boyfriend, Elmer Jarnigan, who were at a house nearby, of the statement
Hughes made to her. Then Jarnigan, Torres, and Latasha and Josh Strange, Epps‟s sister
and brother-in-law, found and confronted Hughes outside the apartment complex.
Hughes denied any wrongdoing and ran to his truck, where he grabbed a chain and a
metal pipe. Hughes then taunted Jarnigan and the others before withdrawing and walking
toward an apartment unit in the complex.

A short time later, a physical altercation took place between a man and woman,
who lived in this apartment unit, and Jarnigan and his group in the common area just
outside the apartment. During this altercation, Jarnigan was hit in the back of the head,
“blacked out,” and fell down the stairs. Jarnigan was unable to confirm that Hughes was
the individual who hit him because his back was turned at the time of his injury. After
regaining consciousness, Jarnigan climbed the stairs and saw Hughes hit Mr. Strange1 in
the head with the pipe, which caused Mr. Strange to fall against the wall. An instant
later, Jarnigan saw Hughes hit Mr. Strange a second time in the neck. Because a more
detailed summary of the facts supporting Hughes‟s convictions is not relevant to our
decision in this case, we now focus on the events that occurred following Hughes‟s trial.

On July 24, 2015, the jury found Hughes guilty of two counts of aggravated
assault.

On August 14, 2015, and August 19, 2015, the trial court entered identical orders
stating that while Hughes‟s sentencing hearing on the aggravated assault convictions
initially had been set for July 27, 2015, it was continued because the presentence
investigation report had not been completed. These orders also stated that on July 30,
2015, Hughes‟s appointed counsel filed a motion to withdraw, and on August 10, 2015,
Hughes filed both a letter seeking to proceed pro se and a motion to dismiss the

1
Because Latasha and Josh Strange share the same surname, we will refer to Josh Strange as
“Mr. Strange” to avoid confusion. We intend no disrespect to other individuals in this opinion by
referring to them by their surnames only.
-2-
indictment in his unrelated drug case for failure to prosecute.2 The trial court set
Hughes‟s sentencing hearing and these motions to be heard on August 26, 2015.

At the August 26, 2015 hearing, appointed counsel announced that Hughes wished
to relieve him of further representation and asked the trial court to allow him to withdraw.
The court noted that Hughes had filed a request to proceed pro se, and Hughes confirmed
that he no longer wished to have appointed counsel represent him. At that point, the
court and Hughes had the following exchange:

The Court: And I know you‟re a smart guy and you know what you‟re
doing but you understand that in most cases it‟s usually better
to have an attorney that [has] actually, you know, been to law
school and got a license to practice and actually would have
more experience in the courtroom than you do. You
understand that[,] right?

Hughes: Yes, Your Honor. Completely.

The Court: Okay. And do you also understand that at the present time,
you may not know this, but I don‟t know of any reason for
[appointed counsel] not to represent you if you want an
attorney. So if you don‟t want a[n] attorney, from my
perspective, you‟re going to be representing yourself; do you
understand that?

Hughes: Okay. . . .

Hughes said that because he believed appointed counsel had provided ineffective
assistance at trial on his aggravated assault charges, he did “not feel comfortable with
him proceeding further with any other action.” The trial court responded:

Well, I mean, up to you, but I didn‟t see any problems with his
performance, I thought he did a good job. And at this[] time we‟re not
trying that claim of ineffective assistance but the issue is whether or not
you‟re going to represent yourself or have [appointed counsel]—you don‟t
want him, I understand that, but what I‟m telling you is I‟m not appointing
anybody else to represent you.

2
We note that appointed counsel‟s motion to withdraw, Hughes‟s letter seeking to proceed pro
se, and Hughes‟s motion to dismiss the indictment in his unrelated drug case were not included in the
record on appeal.
-3-
Hughes replied that he was “consulting with other attorneys” and that he was “going to
hire one.” The court said that if he allowed appointed counsel to withdraw, he would
have no further obligation to represent him, and Hughes said he understood. The court
then explained that a sentencing hearing would have to occur before Hughes could file a
motion for new trial or appeal his case. Hughes stated that he was going to hire an
attorney for the sentencing hearing, and the trial court stated that he would need to file a
motion for new trial within thirty days of the date the judgment was entered. At that
point, the trial court asked the State if there was any other colloquy he needed to have
before Hughes waived his right to counsel, and the State replied, “I don‟t believe so[.]”
The court then informed Hughes of the following:

So if you‟re going to hire you an attorney and you understand that I‟ve told
you that you can have an attorney and have the state pay for it based on
your previous finding of indigency but that attorney is going to be
[appointed counsel] at this point and you don‟t want him. So, in effect,
discharging him is waiving your right to have an appointed attorney; are we
clear on that?

Hughes replied affirmatively. The court then asked Hughes to sign a document entitled
Waiver of Right to Have Appointed Counsel, which stated the following:

The undersigned represents to the Court that he has been informed of
the charges against him, the nature thereof, the statutory punishment
therefore, and the right to appoint[ment] of counsel upon his representation
to the Court that he is unable to employ counsel and the reasons therefore,
all of which he fully understands. The undersigned now states to the Court
that he does not desire the appointment of counsel, expressly waives the
same and desires to appear in all respects in his own behalf, which he
understands he has the right to do.

The trial court also signed this waiver.

The court next provided Hughes with a copy of the presentence investigation
report, and Hughes and the court read the report before continuing with the sentencing
hearing. After reviewing this report, the court noted that Hughes had a college degree in
“geotechnical drilling and blueprint.” The State argued that Hughes would be sentenced
as a Range III, persistent offender because of his extensive criminal history, which
included five prior felony convictions, and confirmed that it had certified copies of those
convictions. The trial court proceeded with Hughes‟s sentencing hearing until Hughes
asked for a continuance to hire an attorney in both his sentencing case and his unrelated
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drug case because he was not adequately prepared. In order to give Hughes the
opportunity to hire an attorney, the trial court continued the sentencing hearing and the
motion hearing to September 8, 2015.

On August 28, 2015, Hughes filed a Petition for Injunctive Relief, alleging that his
First Amendment right to proper access to the courts, his Sixth Amendment right to
effective assistance of counsel, and his Fourteenth Amendment rights to due process and
equal protection were violated when the trial court, on August 26, 2015, ordered him to
proceed pro se until he could retain counsel. Hughes also claimed that he was “being
denied visits, reasonable times to make calls, access to legal documents, files, records of
Court, and proper means to [s]ubpoena very important witnesses and evidence to prepare
[his] defense in the upcoming sentencing hearing[.]”

At the September 8, 2015 sentencing hearing, the trial court noted that Hughes
appeared to be representing himself pro se and recalled that when the court last saw him,
Hughes said he was going to hire an attorney. When the court asked if Hughes had
decided not to retain counsel, Hughes replied, “No, sir. That‟s incorrect. I do have an
attorney[,] but he has deferred sentencing. He said there is absolutely no time to prepare
for him, that he considers whatever happens today is illegal anyway.” The trial court
replied that because there was nothing in the file to indicate that Hughes was currently
represented by an attorney, Hughes would proceed pro se at the sentencing hearing. It
added:

As we discussed last time you were here, you have a right to [be]
represented by an attorney and to have an attorney of your choice represent
you if you can afford to hire one. If you can‟t afford to hire one, you get
who we appoint for you[,] and we appointed [the private attorney who
represented you at trial,] and you said you didn‟t want [that attorney] to
represent you anymore[,] which meant that you were going to proceed pro
se, and you said you understood that but that you were going to plan to hire
an attorney. Now you say you‟ve hired one[,] but he doesn‟t want to
participate and says it‟s too little time to get ready for the sentencing.

The trial court then stated that “today is the day” for the sentencing hearing and
that Hughes would have to proceed pro se, to which Hughes replied, “Yes, sir.” The
court then heard from the State regarding Hughes‟s sentencing range and the applicability
of mitigating and enhancement factors. Before imposing the sentence, the court
remarked, “No attorney has made an appearance in the case, no one has asked for a
continuance of the matter, and so the [c]ourt‟s proceeding [with the sentencing hearing].”
It then determined that Hughes was a Range III, persistent offender before sentencing

-5-
him to concurrent sentences of ten and fifteen years for his aggravated assault
convictions.

The trial court went on to conduct a hearing on Hughes‟s unrelated charge for
simple possession of a Schedule IV controlled substance. When the court noticed that
Hughes‟s mother had entered the courtroom, it asked her whether Hughes was
represented by an attorney on the drug charge, and Hughes mother replied, “We got [the
attorney] for an appeal” of the aggravated assault convictions and explained that Hughes
was not represented by an attorney in the drug case. When the trial court asked Hughes if
he wanted the same appointed attorney who represented him at trial on the aggravated
assault charges to represent him on his drug charge, Hughes responded in the negative
and said he would proceed pro se in the drug case.

After dealing with several issues related to Hughes‟s drug case, the State requested
a date for Hughes‟s motion for new trial on his two convictions for aggravated assault.
The State said, “I want to be sure that Mr. Hughes is aware of the deadline in terms of
filing his motion for new trial and his notice of appeal.” The court stated, “I don‟t know
if you want to file a motion for a new trial or if you just wanted to go with your appeal,”
and Hughes said, “Yes, that‟s what we‟re doing. Then the court declared, “But you‟ve
only got 30 days from the date I sign this judgment, which is going to be today, to file a
motion for a new trial.” At that point, the trial court said the thirty-day period to file the
motion for new trial or notice of appeal would end on October 8, 2015, which the State
confirmed. The court then asked, “If [Hughes] goes ahead and files a notice of appeal [,
then] that deprives me of jurisdiction to hear a motion for new trial at that point, doesn‟t
it?” The State replied, “I‟m honestly not 100 percent sure, Your Honor.”

When the trial court asked if Hughes had a notice of appeal ready to file in his
case, Hughes responded, “Sir, like I say on that, it will be up to my attorney.” Hughes
then said, “[My attorney‟s] aware of everything.” The court asked if Hughes had any
questions about the thirty-day period “to get that done,” and Hughes responded, “My
attorney—I just, I don‟t really.” Then the court stated, “Well, I‟m telling you that if you
don‟t have it done by October the 8th then you‟re going to be out, there ain‟t [sic] going to
be no appeal[,]” to which Hughes replied that his attorney was “aware.” When the court
asked if Hughes personally was aware of this deadline, Hughes said, “Yeah, yeah, I‟m
aware.” The trial court said it was important that Hughes understand the thirty-day
deadline because no attorney had appeared on Hughes‟s behalf yet, and Hughes said,
“Yeah, he‟s aware of everything. It‟s just when we talked about the sentencing[,] he said
he could not prepare in the length of time that we had. And since it was pro se[,] he‟s
very confident that we will prevail on appeal.”

-6-
The State asked the court about obtaining a date for the motion for new trial
“because a lot of times in the past . . . [other judges have] set the date and just informed
the defendant that he has 30 days to file his motion and then if he doesn‟t, he doesn‟t.”
The court said Hughes had indicated he was only going to file a notice of appeal but
recognized that he “could change [his] mind.” Hughes stated, “I‟ve elected . . . to let [my
attorney] comment on that . . . [b]ecause he could have a schedule. . . . I don‟t want to
speak for him and him not [be] here.” Before adjourning, the court scheduled a tentative
hearing on the motion for new trial for November 2, 2015 and said, “I‟ll send out an
order and you can either have your attorney . . . contact my office to get that, or the
clerk‟s office, or you can send it to them when you get your copy[,] and it will have the
dates in it.”

The judgments for Hughes‟s aggravated assault convictions were entered on
September 8, 2015. The judgment form for one of the counts contained the following
notation in the Special Conditions box: “Motion for new trial set for November 2, 2015
at 9:00 a.m. The trial court‟s docket sheet for the September 8, 2015 sentencing hearing
also contained the following note: “[M]otion for new trial to be filed within 30 days or to
file notice of appeal by October 8, 2015. MNT set Nov. 2, 2015 @ 9AM.”

On September 18, 2015, Hughes filed a pro se notice of appeal. On November 23,
2015, he filed an untimely pro se motion for new trial, alleging that he had received
ineffective assistance of counsel from his four prior attorneys, that the State had engaged
in prosecutorial misconduct and malicious prosecution of him, and that various
constitutional rights had been violated. On November 30, 2015, the trial court entered an
order denying the motion for new trial on the basis that Hughes “filed a motion for [n]ew
[t]rial . . . after his notice of appeal became effective.” The trial court summarized the
events preceding the filing of the motion for new trial before determining that the court
was without jurisdiction to consider the motion:

Mr. Hughes was sentenced on September 8, 2015[,] and a judgment
was entered at that time. Because Mr. Hughes elected to proceed pro se,
the [trial court] explained to him in detail about the time frame for filing a
notice of appeal and/or for filing a motion for new trial. [The court] also
set a date for a hearing on a potential motion for new trial, on the
assumption that such a motion would be timely filed. No motion was filed
prior to the expiration of the 30[-]day window provided by Tenn. R. Crim.
[P]. 33(b). Because Mr. Hughes failed to timely file the Motion for New
Trial[,] this court is without jurisdiction to consider this [m]otion. State v.
Martin, 940 S.W.2d 567 (Tenn. 1997).

-7-
In addition, defendant Hughes also filed a Notice of Appeal . . . ,
which has now been accepted by the Tennessee Court of Criminal Appeals.
. . . Because this case is on appeal[,] the [trial court] lacks jurisdiction to
hear and consider any motions.

For all these reasons, defendant‟s Motion for New Trial [is] hereby
DENIED.

ANALYSIS

Although Hughes presents arguments regarding the self-defense instruction, the
insufficiency of the evidence, and the excessiveness of his sentence, his last argument
about proceeding pro se during the post-trial phase eclipses all of his other arguments.
Specifically, Hughes argues that he was unaware of the procedural requirements for how
to proceed post-trial and that his due process rights were violated when the trial court
failed to advise him, as a pro se defendant, that he had thirty days from entry of the
judgments to file a motion for new trial. See U.S. Const. amend. V; U.S. Const. amend.
XIV; Tenn. Const. art. I, § 8. While he acknowledges that he signed a written waiver of
his right to appointed counsel after appointed counsel withdrew, he asserts that this
waiver stated only that he had to file a notice of appeal, rather than a motion for new trial,
within thirty days of the date his judgments were entered. For these reasons, Hughes asks
that his case be remanded to the trial court to allow him to file a “thorough and proper
motion for new trial,” which would “encompass[] all of the issues from trial that the
defendant deems significant for review.” We conclude that because the record shows
Hughes did not knowingly, voluntarily, and intelligently waive his right to counsel prior
to his sentencing hearing, we vacate the judgments of the trial court and remand the case
for appointment of new counsel and a new sentencing hearing. Following this sentencing
hearing, Hughes will have the opportunity to file a new motion for new trial and a new
notice of appeal.

Initially, we recognize that a criminal defendant has the right to be represented by
counsel or the right to represent himself and proceed pro se without the assistance of
counsel. U.S. Const. amend. VI; Tenn. Const. art. I, § 9; State v. Hester, 324 S.W.3d 1,
29 (Tenn. 2010); State v. Holmes, 302 S.W.3d 831, 838 (Tenn. 2010); see Tenn. R. Crim.
P. 44(a) (“Every indigent defendant is entitled to have assigned counsel in all matters
necessary to the defense and at every stage of the proceedings, unless the defendant
waives counsel.”). The right of self-representation exists “„despite the fact that its
exercise will almost surely result in detriment to both the defendant and the
administration of justice.‟” State v. Antonio McMiller, No. E2015-01597-CCA-R3-CD,
2016 WL 3947878, at *3 (Tenn. Crim. App. July 18, 2016) (quoting State v. Fritz, 585
P.2d 173 (Wash. Ct. App. 1978)), perm. app. filed (Tenn. July 29, 2016).
-8-
In order to exercise the right of self-representation, a defendant must waive his
right to counsel, and this waiver may occur at any stage of the proceedings. Hester, 324
S.W.3d at 30. However, “[c]ourts should indulge every presumption against waiver of
the right to counsel.” Lovin v. State, 286 S.W.3d 275, 288 n.15 (Tenn. 2009) (citing
Brewer v. Williams, 430 U.S. 387, 404 (1977); State v. Worrell, 660 S.E.2d 183, 185
(N.C. Ct. App. 2008); Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008);
State v. Vermillion, 51 P.3d 188, 192-93 (Wash. Ct. App. 2002)); see Holmes, 302
S.W.3d at 838 (“Of all the rights that an accused person has, the right to be represented
by counsel is by far the most pervasive for it affects his ability to assert any other rights
he may have.” (citations and internal quotation marks omitted)).

In exercising the right of self-representation, the defendant must: (1) assert the
right to proceed pro se in a timely manner; (2) clearly and unequivocally exercise this
right; and (3) knowingly and intelligently waive his right to the assistance of counsel.
Hester, 324 S.W.3d at 30-31 (citing State v. McCary, 119 S.W.3d 226, 256 (Tenn. Crim.
App. 2003); State v. Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988); United
States v. Bush, 404 F.3d 263, 271 (4th Cir. 2005); United States v. Mackovich, 209 F.3d
1227, 1236 (10th Cir. 2000)). Generally, the waiver of the right to counsel occurs “only
after the trial judge advises a defendant of the dangers and disadvantages of self-
representation and determines that the defendant „knows what he is doing and his choice
is made with eyes open.‟” State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000) (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

In this case, prior to his sentencing hearing, Hughes signed a written waiver of his
right to have appointed counsel when his second appointed attorney was allowed to
withdraw. This court has recommended that before accepting a defendant‟s waiver of the
right to counsel, the trial court should ask the litany of questions, or questions similar to
those, found in 1 Bench Book for United States District Judges 1.02-2 to -5 (3d ed. 1986).
Herrod, 754 S.W.2d at 630. These recommended questions have been restated in Smith
v. State, 987 S.W.2d 871, 877-78 (Tenn. Crim. App. 1998), as an appendix to that
opinion. This list of questions is “designed to emphasize the gravity of self-
representation and determine the defendant‟s ability to proceed pro se.” Antonio
McMiller, 2016 WL 3947878, at *3. The trial court, prior to accepting a waiver of
counsel, should also “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)(A)-(B); see
T.C.A. § 8-14-106(b).

Before finding that a defendant has waived his right to counsel,

-9-
[a] judge must investigate as long and as thoroughly as the circumstances of
the case before him demand. The fact that an accused may tell him that he
is informed of his right to counsel and desires to waive this right does not
automatically end the judge‟s responsibility. To be valid such waiver must
be made with an apprehension 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. A judge can make certain that an accused‟s professed
waiver of counsel is understandingly and wisely made only from a
penetrating and comprehensive examination of all the circumstances under
which such a plea is tendered.

State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984) (quoting Von Moltke v. Gillies,
332 U.S. 708, 723-24 (1948)). The trial court‟s responsibility to conduct this
comprehensive examination exists even when the defendant chooses to waive his right to
counsel post-trial. State v. Gillespie, 898 S.W.2d 738, 741 (Tenn. Crim. App. 1994).
The waiver of the right to counsel must be in writing and included in the record. Tenn.
R. Crim. P. 44(b)(2), (3). The issue of whether a defendant has exercised his right of
self-representation and has simultaneously waived his right to counsel is a mixed
question of law and fact that this court reviews de novo, accompanied by a presumption
that the trial court‟s factual findings are correct. Hester, 324 S.W.3d at 29. However, the
erroneous deprivation of counsel is per se reversible error. Holmes, 302 S.W.3d at 848
(citing Chapman v. California, 386 U.S. 18, 23 & n.8 (1967); State v. Rodriguez, 254
S.W.3d 361, 371 (Tenn. 2008)); see United States v. Gonzalez-Lopez, 548 U.S. 140, 148-
51 (2006); Penson v. Ohio, 488 U.S. 75, 88-89 (1988).

In general, any waiver of the right to counsel must be knowing, voluntary, and
intelligent. Carruthers, 35 S.W.3d at 546 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938); State v. Small, 988 S.W.2d 671, 673 (Tenn. 1999)). However, “the right to
counsel is not a license to abuse the dignity of the courts or to frustrate orderly
proceedings.” Id. at 546 (footnote omitted). The Tennessee Supreme Court has
recognized that “like other constitutional rights, the right to counsel can be implicitly
waived or forfeited if a defendant manipulates, abuses, or utilizes the right to delay or
disrupt a trial.” Id. at 547 (internal footnote and citations omitted). Implicit waiver of the
right to counsel may be found if “the record reflects that the trial court advises the
defendant the right to counsel will be lost if the misconduct persists and generally
explains the risks associated with self-representation.” Id. at 549 (citation omitted); see
Holmes, 302 S.W.3d at 840 (“[C]ompared to an affirmative waiver expressed through
words, an implicit waiver is presumed from the defendant‟s conduct after he has been
made aware that his continued misbehavior will result in the dangers and disadvantages
-10-
of proceeding pro se.”). With implied waiver, there is no requirement that the trial court
“provide extensive and detailed warnings when a defendant‟s conduct illustrates that he
or she understands the right to counsel and is able to use it to manipulate the system.”
Carruthers, 35 S.W.3d at 549. On the other hand, forfeiture of the right to counsel may
be found when “a defendant engaged in extremely serious misconduct . . . even though
the defendant was not warned of the potential consequences of his or her actions or the
risks associated with self-representation.” Id. at 548 (citations omitted).

After carefully assessing the record in this case, we conclude that Hughes did not
knowingly, voluntarily, and intelligently waive his right to the assistance of counsel. See
Hester, 324 S.W.3d at 30-31; Carruthers, 35 S.W.3d at 546. The record shows that
Hughes‟s first attorney, who was retained, was allowed to withdraw when he appeared in
court late on Hughes‟s behalf, which resulted in the general sessions court issuing an
arrest warrant for Hughes‟s failure to appear. Apparently, this first attorney also had a
conflict of interest because he was a tenant of the apartments complex where the
aggravated assault offenses occurred, and Hughes filed a lawsuit against the owners of
the apartment complex in federal court.

Hughes‟s second attorney, an assistant public defender, was allowed to withdraw
after Hughes filed a complaint against him with the Board of Professional Responsibility
and named the district public defender as a potential witness in a civil rights lawsuit.
Hughes‟s third attorney, an appointed private attorney, was allowed to withdraw because
of “a substantial breakdown in communication” with Hughes. Hughes‟s fourth attorney,
also an appointed private attorney, represented Hughes throughout trial on the aggravated
assault charges but was allowed to withdraw prior to Hughes‟s sentencing hearing.
Hughes claimed this fourth attorney provided ineffective assistance at trial, although the
trial court said it was unaware of any deficiencies in counsel‟s performance. The court
ultimately allowed this fourth attorney to withdraw, although the record does not include
any facts showing that withdrawal of counsel was warranted. Given the circumstances
surrounding this succession of attorneys, Hughes must have tried the patience of the trial
court.

It is important to note that the initial appellate record did not contain the transcript
from the hearing regarding Hughes‟s waiver of the right to appointed counsel or the
withdrawal of his last attorney. During oral argument in this case, appellate counsel
stated that although he had requested the transcript from this hearing, he was told by the
clerk‟s offices in the relevant counties that it did not exist. On November 2, 2016, in an
effort to discern what happened regarding Hughes‟s waiver, this court entered an order on
its own motion directing the trial clerk to supplement the record with the transcript from
the motion hearing regarding Hughes‟s waiver of counsel and any exhibits made at the
hearing, including the letter from Hughes voicing his desire to proceed pro se. When the
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supplemental record was transmitted on November 22, 2016, it included the August 14,
2015 and August 19, 2015 orders, which were identical, the August 26, 2015 written
waiver that was included in the original appellate record, and the transcript from the
August 26, 2015 hearing. Unfortunately, neither the initial record nor the supplemental
record revealed that the trial court asked Hughes the recommended Bench Book
questions, or similar questions, that emphasized the risks of self-representation and
determined his ability to proceed pro se. See Antonio McMiller, 2016 WL 3947878, at
*3. Specifically, the trial court did not “determine whether there [was] 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)(A)-(B). For
these reasons, we must conclude that Hughes‟s written waiver of his right to appointed
counsel was not knowing, voluntary, or intelligent. Furthermore, because the record does
not show that the trial court warned Hughes that any further misconduct would place his
right to counsel in jeopardy and does not show that Hughes‟s conduct was extremely
serious, we must conclude that Hughes did not implicitly waive or forfeit his right to
counsel. See Carruthers, 35 S.W.3d at 548-49. After carefully assessing this record, we
believe the trial court had two options if it determined after a comprehensive evaluation
that Hughes was not competent to proceed pro se. First, it could have refused to allow
appointed counsel to withdraw. Second, it could have detailed Hughes‟s misconduct, if
such misconduct in fact occurred, appointed new counsel, advised Hughes of the risks of
self-representation, and warned him that any future misconduct would result in an
implicit waiver of the right to counsel. Either of these options would have been a better
alternative than having Hughes proceed pro se and most likely would have precluded any
later problems regarding the filing of a timely motion for new trial and notice of appeal.

Therefore, in light of the record in this case, we vacate Hughes‟s sentence and
remand the case for appointment of new counsel and a new sentencing hearing. Upon
entry of the new judgments, Hughes may file a timely motion for new trial, and any
appeal shall proceed in accordance with the Rules of Appellate Procedure. Cf. State v.
Michael Small, No. W2003-02014-CCA-R3-CD, 2006 WL 3327845, at *3 (Tenn. Crim.
App. Nov. 15, 2006) (remanding the case for evidentiary hearing and holding that if the
trial court determined that the defendant‟s right to counsel was violated, then it would be
required to vacate the judgment of conviction and sentence, appoint counsel for the
defendant, and conduct a new sentencing hearing, after which the defendant would have
an opportunity to file a timely motion for new trial and appeal).

In appointing counsel on remand, the trial court shall inform Hughes that, barring
unforeseen circumstances, this attorney will represent him to the conclusion of this case.
If the trial court finds that Hughes engaged in misconduct regarding his other attorneys
prior to the appointment of counsel, it shall detail Hughes‟s misconduct on the record,
advise him of the risks of self-representation, and warn him that any further misconduct
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regarding this newly appointed attorney will result in an implied waiver of appointed
counsel. The court shall also inform Hughes that he will forfeit the right to counsel if he
engages in “„extremely serious misconduct‟ . . . or engages in an „egregious
manipulation‟ of the right to counsel „so as to delay, disrupt, or prevent the orderly
administration of justice.‟” Holmes, 302 S.W.3d at 838 (quoting Carruthers, 35 S.W.3d
at 548, 550). The trial court shall tell Hughes that appointed counsel, and not Hughes,
has the authority to make tactical decisions regarding the means of the representation and
to determine the issues raised on appeal. See Tenn. Sup. Ct. R. 8, RPC 1.2 (allocation of
authority between client and attorney), 3.1 (meritorious claims and contentions); Felts v.
State, 354 S.W.3d 266, 283 (Tenn. 2011) (This court will not second-guess the tactical
decisions made by trial counsel when those decisions were informed and based upon
adequate preparation.); Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995)
(“Generally, the determination of the issues to present on appeal addresses itself to the
professional judgment and sound discretion of appellate counsel.”) (citation omitted). If
Hughes again asserts his right to self-representation following remand, the trial court
shall follow the procedures set out in this opinion before determining whether Hughes is
competent to proceed pro se.

CONCLUSION

Because the record shows that Hughes did not knowingly, voluntarily, and
intelligently waive his right to counsel prior to his sentencing hearing, we vacate the
judgments of the trial court and remand the case for appointment of new counsel and a
new sentencing hearing.

____________________________________
CAMILLE R. McMULLEN, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4112473. Public record. Not legal advice.