All seven justices of the Georgia Supreme Court this week had sharp questions about a case raising issues including a defendant's right to counsel, the “chilling effect” of $50 fees charged to clients of
public defenders and the fairness of governments using private probation companies.
At issue was the case of Lisa Harrelson, who was arrested in 2007 in Augusta, pleaded guilty to drunk driving and was placed under the supervision of Sentinel Offender Services without ever speaking to a defense lawyer.
She later consulted an attorney and moved to withdraw her plea. Richmond County State Court Judge Richard A. Slaby changed the charge from drunk driving to driving under the influence of prescription drugs and left the sentence and fine intact.
But in April, Richmond County Superior Court Judge J. Carlisle Overstreet granted Harrelson's habeas corpus petition and set aside her conviction ruling that, among other things, the county solicitor had assisted her in deciding not to seek counsel before entering her plea. In a separate order, the judge issued a default judgment against Sentinel, which also had been named in the petition but did not respond. Overstreet ordered the company to pay back a total of $500 in fees and fines Harrelson had paid and barred it from collecting any more money from her.
On Monday afternoon, attorneys for Sentinel and the Richmond County solicitor's office argued that Overstreet had exceeded his authority in granting Harrelson's habeas petition. They said that arguments she raised at the lower court challenging her change of plea as well as the statutory fees for public defenders and Sentinel's administrative fees were without merit.
Sentinel attorney Alana Kyriakakis of Augusta's Hull, Towill, Norman, Barrett & Salley had just begun her presentation, arguing that Harrelson suffered no “manifest injustice” by having her plea changed from one misdemeanor charge to a similar one that carries the same penalties, when Chief Justice Carol W. Hunstein interrupted.
“She didn't have counsel, did she?” asked Hunstein.
No, replied Kyriakakis, but she had been advised that a lawyer could be appointed, and the form she signed plainly detailed that she was waiving her right to counsel.
“Does it frequently happen in that county that defendants plead guilty with no counsel at all?” countered Hunstein.
The lawyer didn't know but said Harrelson had been advised both by the judge and in writing of her rights.
“Was she advised of the danger of waiving her right to counsel?” pressed Hunstein.
“Yes, you honor,” said Kyriakakis. The waiver form “sets forth that attorneys have knowledge and experience that would be helpful to her.”
Justice George H. Carley inquired about the $50 fee that Georgia law allows to be charged to defendants seeking to use a public defender. Harrelson's lawyer has said the fee has an unconstitutional “chilling effect” on poor defendants who might feel pressured into proceeding without counsel.
The courts have authority to waive that fee, responded Kyriakakis. And, she noted, that issue “was not ruled upon by the trial court.”
“It is our position that there is no basis for ruling on the constitutionality” of the fee, she said.
Justice David E. Nahmias wanted to know about the factual basis for the charge of driving under the influence of alcohol.
“After the fact,” responded Kyriakakis, “she said, 'No, I was under the influence of drugs.'”
“Are you saying that there was no factual basis?” asked Justice P. Harris Hines. “Any breath test? Any blood test? Nothing … other than her acceptance and admission?”
The Augusta police officer who found Harrelson slumped over the wheel of her pickup truck is an expert on drugs and had concluded that the woman was under the influence of both a narcotic and a stimulant when arrested, said Kyriakakis.
Harrelson admitted as much when pleading guilty, the lawyer said, insisting that Harrelson had suffered no manifest injustice that would justify granting her habeas petition.
“Do you think there is no manifest injustice in being convicted of a crime you didn't commit?” asked Nahmias, who along with Carley and Hines also expressed concerns about the lack of a transcript or other factual basis for the plea.
The penalties are the same, said Kyriakakis, and the change of plea had no material impact on Harrelson.
Andrew G. Mackenzie, representing Richmond County Solicitor Harold V. Jones II, briefly rose to describe the plea change as “a mere scrivener's error” that mistook one subsection of the Georgia code for another.
“In other words, she was just as dangerous to the public,” he said.
Harrelson's attorney, John B. “Jack” Long of Augusta's Tucker, Everitt, Long, Brewton & Lanier, aimed his attack far beyond his client's plea.
He also challenged the county's use of Sentinel, the lower court's practice of allowing the solicitor to confer with defendants before entering misdemeanor pleas, and the statutory $50 fee that may be levied on defendants who request a public defender.
“The reason we are here is because you cannot have an unrepresented defendant,” said Long, comparing the $50 fee to poll taxes of days past.
Admitting his request was “the hardest part of my presentation,” he asked the court to strike down the fee as unconstitutional.
“You're asking us to rule on a constitutional issue that has not been ruled upon by a lower court?” asked Carley.
The court should step in, replied Long, because “the right to counsel for misdemeanants is given with one hand and taken away with the other.”
“I'm asking you to do something about it,” he said.
Nahmias questioned whether a judge hearing a habeas case had the authority to order the refund of fines and fees, which are divided between the probation company, the county and assorted funds mandated by state law.
When Long questioned the wisdom of having a private company overseeing probationers at all, Justice Robert Benham asked whether he knew of any recidivism studies comparing private and state-run probation systems.
No, said Long, “but I know about the economic impact. Private probation companies have an economic incentive to keep people on probation … . It needs to stop.”
While the justices seemed inclined to step away from the constitutional issues Long raised in this case, they may get another chance to review some of Sentinel's practices.
In July, the Georgia Court of Appeals overturned a Fulton County State Court judge's grant of summary judgment to Sentinel in an unrelated case. The appeals court said a suit filed by a woman who spent several days in jail after her probation was mistakenly revoked by a Houston County court may proceed.
In a case with a unusually similar name, Camille Harrell appeared to answer a speeding ticket in Houston County State Court. Harrell agreed to pay a $162 fine and was placed on 12 months of probation until the fine was paid.
But, according to case filings, when she asked the bailiff to allow her to go to a nearby bank machine for the money, she was escorted to the Sentinel office down the hall and informed she must arrange for installment payments with the company, including a $25 per month monitoring fee.
She filled out paperwork and retrieved the money, and then returned to the courthouse and was escorted to the clerk's window by a Sentinel employee, where she paid her fine and was told she was free to go.
Harrelson did not pay Sentinel any fees,, and five months later the company sought an arrest warrant against her. She was arrested by Clayton County deputies and spent three days in jail until Houston County court officials sent proof she had paid the fine. Her charges were subsequently dismissed.
Harrell sued Houston County for false arrest, false imprisonment, negligence and other charges, but then-Fulton County State Court Judge Penny Brown Reynolds dismissed the charges.
The Court of Appeals upheld most of Reynolds' order but said evidence that Houston County routinely allowed Sentinel employees to request warrants without swearing a statement under oath “supports the conclusion that the warrant issued for Harrell was constitutionally invalid.”
Sentinel has filed a notice of appeal with the Supreme Court, which has not yet ruled on whether to take the case.
The related high court cases argued together Monday were Sentinel v. Harrelson, No. S09A1624; Jones v. Harrelson, No. S09A1625; and Harrelson v. Jones, No. S09A1626. .
The Court of Appeals decision was Harrell v. Houston County, No. A09A0393.