T.L.B. v. State of Alabama (Appeal from Morgan Circuit Court: CC-18-1562 and CC-18-1563)

Rel: May 2, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
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T.L.B.

v.

State of Alabama

Appeal from Morgan Circuit Court
(CC-18-1562 and CC-18-1563)

ANDERSON, Judge.

T.L.B. was convicted in case number CC-18-1562 of one count of

first-degree kidnapping, see § 13A-6-43, Ala. Code 1975, one count of

first-degree rape, see § 13A-6-61, Ala. Code 1975, one count of first-degree

sodomy, see § 13A-6-63, Ala. Code 1975, one count of second-degree
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domestic violence, see § 13A-6-131, Ala. Code 1975, and one count of first-

degree burglary, see § 13A-7-5, Ala. Code 1975. He was also convicted in

case number CC-18-1563 of violating a domestic-violence protection

order, see § 13A-6-142, Ala. Code 1975. In case number CC-18-1562, the

Morgan Circuit Court sentenced T.L.B. as a habitual felony offender with

two prior felony convictions to 99 years' imprisonment for each of his

convictions for first-degree kidnapping, first-degree rape, first-degree

sodomy, and first-degree burglary and to 15 years' imprisonment for his

conviction for second-degree domestic violence. The sentences for T.L.B.'s

first-degree-kidnapping conviction, first-degree-rape conviction, and

second-degree-domestic-violence conviction were ordered to run

concurrently with each other, and the sentences for his convictions of

first-degree sodomy and first-degree burglary were ordered to run

concurrently with one another. However, his sentences for his convictions

of first-degree sodomy and first-degree burglary were ordered to run

consecutively with his sentences for his convictions of first-degree

kidnapping and first-degree rape. In case number CC-18-1563, T.L.B.

was ordered to serve 90 days' imprisonment, to run concurrently with his

sentences in case number CC-18-1562.

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Facts and Procedural History

The resolution of this appeal stems from issues unrelated to the

evidence presented at trial. Thus, a recitation of the facts underlying the

offenses is unnecessary.

On December 7, 2018, a Morgan County grand jury issued an

indictment charging T.L.B. with first-degree kidnapping, first-degree

rape, first-degree sodomy, second-degree domestic violence, and first-

degree burglary. The same day, the grand jury issued a separate

indictment charging him with one count of violating a domestic-violence

protection order.

The record indicates that, on or about January 8, 2020, T.L.B. filed

a motion requesting that the court allow his appointed counsel, Kevin D.

Teague, to withdraw as his trial counsel, claiming that counsel had

"failed to have any meaningful communication with [T.L.B.] and

[counsel's] ineffective representation cannot be reconciled." (C. 29.) On

January 14, 2020, Teague filed a motion to withdraw as attorney of

record, alleging that there had been a breakdown in the client/attorney

relationship. Teague denied the allegations raised in T.L.B.'s motion

seeking new counsel, and Teague asserted that "there [have] been

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numerous discussions concerning these cases and [T.L.B.] has been

provided with the evidence package provided by the District Attorney."

(C. 30.) In a pro se letter to the court dated January 16, 2020, T.L.B. again

sought to have Teague removed as his trial counsel, claiming that it was

a violation of his civil rights to ignore his request to have a different

lawyer represent him and insisting that he would not go to trial with

Teague as his counsel. (C. 33-34.)

On January 31, 2020, Morgan Circuit Judge Jennifer M. Howell

issued an order allowing Teague to withdraw as T.L.B.'s counsel and

appointing Jim Smith to represent T.L.B.

In a pro se letter dated June 15, 2020, T.L.B. informed the circuit

court that he had yet to hear from his new counsel, that he did not believe

counsel was acting in his best interest, and that counsel was

"insufficient." (C. 51.) In a letter to the circuit court dated June 19, 2020,

T.L.B. stated:

"P.S. Attorney's [sic] do not know how the system work[s], due
to their indoctrination. If I can find an attorney who will do as
I say then I will prevail, but most attorney's [sic] would rather
keep their BAR CARDS, rather than BEHAVE IN HONOR."

(C. 52 (capitalization in original).) T.L.B. filed other letters objecting to

Smith's serving as his trial counsel.

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On November 18, 2021, the circuit court entered an order indicating

that Smith, T.L.B.'s second trial counsel, had moved to withdraw as

T.L.B.'s counsel "based upon his contract not being renewed for indigent

defense," and, for that reason, the circuit court granted Smith's motion

to withdraw as T.L.B.'s counsel. Thereafter, the circuit court appointed

the Thomas Di Giulian to represent T.L.B.

T.L.B.'s trial was continued and reset multiple times over the

following year.

On February 25, 2023, Di Giulian filed a "Motion for Leave to

Withdraw" as T.L.B.'s counsel. (C. 99.) In his motion, Di Giulian stated

the following:

"1.) The undersigned went to see the Defendant in the Morgan
County Jail on Saturday, February 25, 2023, in order to
finalize trial preparations. The Defendant's trial is set for trial
February 27, 2023;

"2.) The Defendant would not provide the undersigned with
information regarding his clothing sizes so that the
undersigned could obtain 'court clothes' for him to wear
during this trial;

"3.) The Defendant would not answer questions posed to him
about the facts of the case, and was extremely argumentative,
became loud, stood up and waved his arms around;

"4.) The Defendant would not cooperate with the undersigned;

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"5.) At least three (3) times the Defendant stated that he did
not want the undersigned to represent him at the trial;

"6.) This occurred in jail visitation room AC-1, which has a
safety glass partition between the inmate and the visitor;

"7.) The undersigned has never, in forty seven (47) years of
law practice, been in fear of his physical safety because of a
client;

"8.) The undersigned believes that had there not been a
partition between him and the Defendant, that the
[Defendant] may have assaulted him;

"9.) The undersigned is concerned that if he is required to
continue to represent the Defendant, his physical safety will
be in danger."

(C. 99.)

Trial proceedings began on February 27, 2023, and continued

through the following day, with Morgan Circuit Judge Stephen F. Brown

presiding. The record indicates that, on the first day of trial, T.L.B.

represented himself pro se with Di Giulian serving as advisory counsel.

On the second day of trial, February 28, 2023, T.L.B. refused to return to

court and Judge Brown appointed Di Giulian to represent T.L.B. for the

remainder of the trial.

T.L.B. was found guilty of all counts as charged in both indictments.

Following a sentencing hearing at which T.L.B. was present, he was

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sentenced as a habitual felony offender with two prior felony convictions

on June 27, 2023. T.L.B. timely filed a notice of appeal.

Discussion

On appeal, T.L.B. argues that the circuit court committed

reversible error when it forced him to proceed pro se without an effective

waiver of counsel. Although T.L.B. raises other issues in his brief on

appeal, because we find this issue to be determinative of the appeal, we

pretermit discussion of the other issues.

As an initial matter, it is apparent from the record that T.L.B.

considers himself a "sovereign citizen" and holds many peculiar beliefs

about the judicial system; among those are his beliefs that the criminal

charges against him and the orders setting his trial were mere

"invitations" that he could refuse. See, e.g. (C. 49-57, 59-60, 123-129).

While T.L.B.'s peculiar -- and incorrect -- beliefs complicated the

proceedings below and were doubtless frustrating to the circuit court,

ultimately this case turns on whether the record shows that T.L.B. gave

an effective waiver of counsel before representing himself on the first day

of his trial.

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The record shows that, before trial, two separate attorneys had

been allowed to withdraw as counsel for T.L.B.1 Two days before trial,

T.L.B.'s third appointed counsel, Di Giulian, requested to withdraw as

counsel, citing T.L.B.'s failure to cooperate, T.L.B.'s wish for Di Giulian

to not represent him, and Di Giulian's own fear for his personal safety as

reasons for seeking to withdraw. On the first day of trial, the circuit court

called the case for trial. The circuit court stated:

"THE COURT: All right. Let's go on the record in CC-18-1562
and 1563, State of Alabama versus [T.L.B.] State is here
represented by Mr. Joe Lewis and [T.L.B.] is here pro se, but
Judge Howell earlier this morning allowed Mr. Tom Di
Giulian, an attorney here in town, to serve as advisory counsel
only to [T.L.B.]"

(R. 5.)

The circuit court then asked the parties whether they had anything

they wanted to put on the record before the jury was brought into the

courtroom. The following transpired:

"THE COURT: [T.L.B.], do you have anything you want the
Court to know.

"[T.L.B.]: I was going to say I'm not represented by an
attorney.

1 The motions to withdraw appear to have been precipitated in some

part by T.L.B.'s disagreement with counsel over their refusal to follow his
instructions to advance his legal theories. (C. 52, 59, 60.)
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"THE COURT: I --

"[T.L.B.]: You said I'm pro se.

"THE COURT: Yeah.

"[T.L.B.]: But I have the right to an attorney, to
counsel, and to confront my accuser, right?
So I don't have no lawyer. I don't have
nothing to say right now.

"THE COURT: All right. Well --

"[T.L.B.]: I got no counsel. I don't have nobody sitting
here or nothing.

"THE COURT: Well, we're about to start a trial and you're
representing yourself in this matter --

"[T.L.B.]: No, I ain't, I ain't said I'm going to represent
myself, though. That's what she said.

"THE COURT: All right. Well, the trial is going to start and
you're going to be representing yourself.

"[T.L.B.]: I'm not.

"THE COURT: All right. Well, yeah, you are. You're going to
go through the trial without an attorney.

"[T.L.B.]: I won't come back over. They can't make me
come back over. I mean …

"THE COURT: That's going to be your -- We can try -- We
can do a trial without you here if that's what
you're --

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"[T.L.B.]: No, you can't.

"THE COURT: Yes, we can.

"[T.L.B.]: Oh, try it.

"THE COURT: I will. That's how it works.

"[T.L.B.]: Okay.

"THE COURT: It's your right to be here.

"[T.L.B.]: Right. And I don't have to be here. So I could
leave now.

"THE COURT: But we can continue with the trial.

"[T.L.B.]: Oh, no, continue and take me back across the
street.

"THE COURT: Well, I'm going to leave you over here for
now--

"[T.L.B.]: That's what I'm trying to tell you, though,
you can't do all that that you say you're going
to do.

"THE COURT: Yeah. Well, I'm about to.

"[T.L.B.]: That -- Well, you can do what you want to.

"THE COURT: Thank you. Mr. Bailiff, can you bring our
jury in?"

(R. 7-9.) It is apparent from this exchange that, before the start of trial,

proceedings of some nature had been held on Di Giulian's motion to

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withdraw and that the result was that T.L.B. proceeded to trial pro se.

Unfortunately, the record is silent as to what those proceedings were. No

transcripts of any hearing on the motion appear in the record, and the

record does not contain any order disposing of the motion. In attempting

to resolve the question whether T.L.B. effectively waived the right to

counsel, this Court is left with only the above exchange and a bare

notation in the case-action summary indicating that on March 1, 2023 --

after the trial had concluded -- the motion to withdraw was "disposed by

separate order." Nonetheless, on the first day of trial, T.L.B. represented

himself, with Di Giulian serving as advisory counsel.

This Court has recognized:

"The Sixth Amendment to the United States
Constitution guarantees a right to counsel in criminal
proceedings. See also Art. I, § 6, Ala. Const. 1901; Rule 6.1(a),
Ala. R. Crim. P. At the same time, a defendant in a criminal
proceeding has a right under the Sixth Amendment to waive
his right to counsel and to conduct his own defense. See
Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975) (recognizing the right to self-
representation); Tomlin v. State, 601 So. 2d 124, 128 (Ala.
1991)."

Moody v. State, 888 So. 2d 532, 553-54 (Ala. Crim. App. 2003). This Court

has also held that a claim challenging whether a defendant's Sixth

Amendment right to counsel has been violated is a jurisdictional claim

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that may be raised for the first time on appeal. See Connell v. City of

Daphne, 292 So. 3d 1129, 1132 (Ala. Crim. App. 2019); Woodruff v. City

of Pelham, 1 So. 3d 157, 159 (Ala. Crim. App. 2008); Berry v. State, 630

So. 3d 127, 130 (Ala. Crim. App. 1993).

In Connell, this Court explained:

"In Carnley v. Cochran, 369 U.S. 506, 516-17, 82 S.Ct.
884, 8 L.Ed.2d 70 (1962), the United States Supreme Court
held that '[t]he record must show, or there must be an
allegation and evidence which show, that an accused was
offered counsel but intelligently and understandingly rejected
the offer. Anything less is not waiver.' 'Presuming waiver from
a silent record is impermissible.' Id. at 516, 82 S.Ct. 884. As
this Court has stated, '[t]he right to counsel does not depend
upon a request by the accused.' Berry [v. State], 630 So. 2d
[127,] 129 [(Ala. Crim. App. 1993)] (citing Brewer v. Williams,
430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kitchens
v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971)).
'If a defendant in a criminal proceeding is not represented by
counsel, the State must prove an intentional relinquishment
of that right.' Berry, 630 So. 2d at 129 (citing Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). As
the Alabama Supreme Court stated in Ex parte Shelton, 851
So. 2d 96 (Ala. 2000):

" 'To establish a knowing and intelligent waiver of
counsel, "the record at the outset of the trial should
establish three factors: 1) that the defendant was
informed that he had the right to counsel, 2) that
the defendant was informed that if he could not
afford counsel the state would appoint counsel to
represent him, and 3) an affirmative showing by
the defendant that, understanding these rights, he
still elects to proceed without counsel." '

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"851 So. 2d at 101 (quoting Jenkins v. State, 482 So. 2d 1315,
1317 (Ala. Crim. App. 1985)).

"The United States Supreme Court has held that, 'in
order to represent himself, the accused must "knowingly and
intelligently" forgo' the benefits of counsel. Faretta v.
California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975) (quoting Johnson v. Zerbst, 304 U.S. at 464-65, 58 S.Ct.
1019). The Court explained that, '[a]lthough a defendant need
not himself have the skill and experience of a lawyer in order
competently and intelligently to choose self-representation,
he should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that "he
knows what he is doing and his choice is made with eyes
open." ' 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236,
87 L.Ed. 268 (1942)). 'If the record is not clear as to the
defendant's waiver and request of self-representation, the
burden of proof is on the State.' Tomlin v. State, 601 So. 2d
124, 128 (Ala. 1991) (citing Carnley, 369 U.S. at 517, 82 S.Ct.
884). 'A waiver of counsel can only be effectuated when the
defendant asserts a "clear and unequivocal" right to self-
representation.' 601 So. 2d at 128 (quoting Westmoreland v.
City of Hartselle, 500 So. 2d 1327, 1328 (Ala. Crim. App.
1986)). Once the clear and unequivocal assertion of self-
representation is made, this Court 'looks to a totality of the
circumstances involved in determining whether the
defendant knowingly and intelligently waived his right to
counsel.' 601 So. 2d at 129 (citing Jenkins v. State, supra). The
first test, however, is whether there is a clear and unequivocal
assertion of the right to self-representation. If there was no
such assertion, we do not apply the totality-of-the-
circumstances test to determine if that waiver of counsel and
assertion of self-representation was knowing and voluntary."

292 So. 3d at 1133.

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This Court addressed a similar situation in Cobble v. State, 710 So.

2d 539 (Ala. Crim. App. 1998). In Cobble, the defendant initially

appeared at his arraignment and informed the trial court that he wanted

to hire an attorney; however, after two failed attempts to hold

arraignment due to Cobble's failure to retain counsel, the trial court

appointed counsel for the defendant. 710 So. 2d at 540. The case

proceeded with appointed counsel representing Cobble until a few weeks

before trial, when Cobble appeared in court for a settlement docket,

stated that he was dissatisfied with his counsel, and asked that counsel

be allowed to withdraw. Id. After the trial court discussed Cobble's

complaints concerning his counsel, the trial court found that the

complaints were "unfounded" and that Cobble "merely [was] unwilling to

accept her honest legal advice and recommendations about how he should

proceed" in his case. Id. Regardless, the trial court in Cobble permitted

counsel to withdraw, "finding that [Cobble] had deliberately created

conflicts with [trial counsel] by making unwarranted accusations, that

his conduct was purposeful, and that he had effectively waived his right

to trial counsel." Id.

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Cobble requested that another attorney be appointed to represent

him at trial, and the trial court denied that request. Id. The trial court

further ordered that counsel was to remain in the case as standby

counsel. Id. On the day of trial, Cobble appeared and requested a

continuance in order for him to retain counsel. The trial court denied the

request, finding that Cobble had given "no justifiable cause or reason for

his failure to retain an attorney" and that Cobble had "intentionally

engaged in tactics regarding legal representation for the purpose of

delaying a final disposition of this case." Id. Cobble subsequently pleaded

guilty to the offense charged, with counsel acting as standby counsel. Id.

This Court held in Cobble:

"In the instant case, the record does not show that the
appellant made a 'clear and unequivocal' waiver of his right
to counsel. In fact, the record reveals that the trial court
informed the appellant that he would be representing himself,
even after the appellant asked the trial court to appoint
another attorney to represent him. The appellant never
expressed a desire to represent himself at trial.

"… .

"Although we do not necessarily disagree with the trial
court's findings that the appellant was engaging in dilatory
tactics by making unwarranted accusations against his trial
counsel, we cannot uphold the trial court's peremptory ruling
that the appellant, as a result of these actions, knowingly
waived his right to trial counsel. In Leslie [v. State], 703 So.

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2d 1029 (Ala. Crim. App. 1997); Stanley [v. State], 703 So. 2d
[1027,] at 1028 [(Ala. Crim. App. 1997)]; and Watkins v. State,
708 So. 2d 236 (Ala. Crim. App. 1997), three cases recently
decided by this court which were factually similar to the
instant case, we held that the trial court, instead of requiring
the defendant to represent himself at trial, should have done
one of the following: (1) denied the attorney's motion to
withdraw; (2) appointed a new attorney to represent the
defendant at trial; (3) granted the defendant's request for a
continuance to allow him to retain counsel; or (4) determined
whether the defendant wanted to represent himself and, if so,
engaged the defendant in a colloquy to determine whether he
understood all of the implications involved in self-
representation. Any of the above actions would have been
appropriate here; requiring the appellant to represent himself
was not.

" ' "The constitutional right of an accused to
be represented by counsel invokes, of itself, the
protection of a trial court, in which the accused --
whose life or liberty is at stake -- is without
counsel. This protecting duty imposes the serious
and weighty responsibility upon the trial judge of
determining whether there is an intelligent and
competent waiver by the accused. While an
accused may waive the right to counsel, whether
there is a proper waiver should be clearly
determined by the trial court, and it would be
fitting and appropriate for that determination to
appear upon the record." '

"Teske v. State, 507 So. 2d 569, 570 (Ala. Crim. App. 1987),
quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct.
1019, 1023, 82 L.Ed. 1461 (1938) (emphasis added in Teske).

"By this opinion, we do not want to tie the hands of trial
judges dealing with defendants who are attempting to delay a
disposition of their cases; nor do we intend to imply that a trial

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court must appoint new counsel every time a defendant
expresses dissatisfaction with his representation.

" ' "[T]he right to assistance of counsel does not
imply the absolute right to counsel of one's choice.
A defendant's right to obtain counsel of his choice
must be balanced against the need for the efficient
and effective administration of criminal justice." '

"Wheeler [v. State], 553 So. 2d [652] at 653 [(Ala. Crim. App.
1989)], quoting United States v. Weninger, 624 F.2d 163, 166
(10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66
L.Ed.2d 470 (1980).

"However, under the facts of this case, we must conclude
that the trial court erred in finding that the appellant
knowingly waived his right to trial counsel."

710 So. 2d at 541-42.

Likewise, in Stanley v. State, 703 So. 2d 1027 (Ala. Crim. App.

1997), Stanley informed the trial court that he wished to fire his second

court-appointed attorney, and the trial court responded by informing

Stanley that he was going to represent himself and they were going to try

the case. Id. at 1028. Because this Court found that the colloquy between

the trial court and Stanley made it clear that there was no waiver of

counsel because the trial court had merely informed Stanley that he

would be representing himself, even after Stanley had requested new

counsel, this Court held that Stanley had not made a "clear and

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unequivocal" waiver of his right to counsel and reversed Stanley's

conviction. Id. at 1029.

A very similar situation also occurred in Leslie v. State, 703 So. 2d

1029 (Ala. Crim. App. 1997), wherein this Court reversed Leslie's

conviction because the record established that Leslie had not clearly

waived his right to counsel, yet the trial court informed Leslie that he

would be representing himself.

In the present case, we have combed the record and find no instance

when T.L.B. made a clear and unequivocal waiver of his right to counsel.

In fact, to the contrary, the record reveals that T.L.B. repeatedly asserted

his right to counsel. Judge Brown, before the beginning of trial

proceedings on the first day of trial, informed T.L.B. that he would be

representing himself pro se and stated: "Judge Howell earlier this

morning has allowed Mr. Tom Di Giulian … to serve as advisory counsel

only to [T.L.B.]" (R. 5.) However, the record is devoid of a transcript of

any proceedings conducted by Judge Howell. Likewise, Di Giulian also

later indicated to Judge Brown that Judge Howell had granted his motion

to withdraw during the pretrial proceedings, but the record also does not

contain any written order explaining that T.L.B. had clear and

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unequivocally waived his right to counsel. These facts alone would be

sufficient to require this Court to grant relief. Tomlin v. State, 601 So. 2d

124, 128 (Ala. 1991) ("Presuming a waiver from a silent record is

impermissible."); see also Carnley v. Cochran, 369 U.S. 506, 516 (1962).

But even if the record established that T.L.B. had clearly waived

his right to counsel before Judge Howell, the colloquy between Judge

Brown and T.L.B., during which T.L.B. asserted his right to counsel,

occurred after the hearing conducted by Judge Howell, and T.L.B. had a

right to withdraw the waiver of his right to counsel at any time. See Rule

6.1(c), Ala. R. Crim. P. The record before this Court establishes that,

when Judge Brown informed T.L.B. that he would be representing

himself, T.L.B. very clearly indicated that he did not wish to represent

himself at trial. Therefore, based on Cobble, Stanley, Leslie, and the

cases cited therein, T.L.B.'s constitutional right to counsel was denied

because it is obvious from the record that T.L.B. did not make a "clear

and unequivocal" waiver of his right to counsel.

The State argues in its brief that, while T.L.B. does have an

absolute right to counsel, he does not have an absolute right to be

represented by any particular counsel. This Court has held that "an

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indigent defendant who requires counsel appointed by the court at the

State's expense has no right to choose the counsel to be appointed." Lane

v. State, 80 So. 3d 280, 295 (Ala. Crim. App. 2010); see also Ex parte

Moody, 684 So. 2d 114, 121-22 (Ala. 1996) ("[A]n indigent defendant is

not entitled to legal counsel of his choice, when counsel is to be paid by

public funds, but rather is entitled to competent legal representation.").

The State further cites Rule 6.1(b), Ala. R. Crim. P., which provides:

"If an indigent defendant who has refused appointed counsel
in order to obtain private counsel appears without counsel at
any proceeding after having been given a reasonable time to
retain counsel, the court shall appoint counsel unless the
indigent defendant waives his right under this rule. If the
indigent defendant continues to refuse appointed counsel, the
cause shall proceed."

While we agree that T.L.B. does not have a right to choose the

particular counsel that is appointed to represent him, we do not conclude

that the facts of this particular case fall under the purview of Rule 6.1(b)

such that it would excuse the circuit court's violation of T.L.B.'s

constitutional right to counsel here. Again, the record is clear that T.L.B.

did not express an intention to retain counsel; rather, he sought new

appointed counsel.

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We recognize that before T.L.B.'s trial date, the circuit court had

previously allowed two separate defense counsel to withdraw from

representing T.L.B. T.L.B.'s first appointed counsel filed a motion to

withdraw, citing a breakdown in the attorney-client relationship.

Although T.L.B.'s second counsel was allowed to withdraw for other

reasons, the record shows that T.L.B. had previously expressed his

unhappiness with his second counsel and asked the circuit court to allow

his second counsel to withdraw because he believed that counsel was not

acting in his best interest and was "insufficient." After the withdrawal of

T.L.B.'s second appointed counsel, the circuit court appointed Di Giulian

as T.L.B.'s third appointed counsel. Two days before trial, Di Giulian

sought to withdraw due to an incident in which T.L.B. had been

uncooperative and caused counsel to fear for his personal safety. At that

point, T.L.B. also requested that his third appointed counsel, Di Giulian,

be allowed to withdraw. However, instead of insisting that Di Giulian

continue his representation of T.L.B. or obtaining a proper waiver of

T.L.B.'s right to counsel, the circuit court subsequently allowed Di

Giulian to withdraw from representing T.L.B., which did not comport

with Rule 6.1(b).

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In reversing and remanding, we wish to be abundantly clear that

we do not endorse any strategy on T.L.B.'s part of objecting to whichever

counsel has been appointed to represent him as a dilatory tactic. As we

have previously held, a "criminal defendant cannot use the right to

counsel of choice 'as a means to delay judicial proceedings.' " Lane, 80 So.

3d at 299. Nor is T.L.B.'s right to counsel of his choice unfettered.

In Wheat v. United States, 486 U.S. 153, 159 (1988), the Court recognized

that a defendant is not entitled to counsel (1) who is not a member of the

bar; (2) whom the defendant cannot afford; (3) who is unwilling to

represent him; or (4) who is laboring under a conflict of interest.

Similarly, T.L.B. would not be entitled to an attorney who is willing to

embrace his own peculiar legal theories or strategies. McCoy v.

Louisiana, 584 U.S. 414 (2018) ("Trial management is the lawyer's

province"; counsel makes decisions about "what arguments to pursue.").

Again, we wish to be abundantly clear that today's decision should

not be construed as allowing defendants an opportunity to use their right

to counsel as a weapon to "obstruct the orderly procedure of the courts or

interfere with the fair administration of justice." Robinson v. State, 581

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CR-2023-0514

So. 2d 1197, 1200 (Ala. Crim. App. 1990). As this Court explained in

Stanley:

"We are not unmindful of the trial court's frustration in this
matter. The appellant was attempting to have the trial court
appoint yet another attorney to represent him on the eve of
the trial. However, the solution was not for the trial court to
summarily violate one of the appellant's basic constitutional
rights. The trial court should have (1) refused to dismiss the
appellant's second appointed attorney; (2) appointed another
attorney and continued the case; or (3) engaged in a sufficient
dialogue to discover if the appellant wished to represent
himself and, if so, determined if the appellant understood all
the implications of this waiver."

703 So. 2d at 1029.

Consequently, based on the foregoing, we are compelled to reverse

the judgment of the circuit court and remand the cause for further

proceedings.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.

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