IN THE INTEREST OF v. << (2013)

S.M., a minor, appeals the juvenile court's dispositional order following his adjudication of delinquency on several counts, including one act which, if committed by an adult, would constitute the crime of theft by taking a motor vehicle. After determining that this was S. M.'s second adjudication of delinquency for motor-vehicle theft, a designated felony act under OCGA § 15–11–63(a)(2)(E), the juvenile court conducted a dispositional hearing and imposed restrictive custody pursuant to OCGA § 15–11–63(b). S.M. argues, inter alia, that the juvenile court erred in adjudicating him as a designated felon because he did not knowingly and voluntarily waive his right to counsel in the prior adjudication. For the reasons set forth infra, we vacate the disposition order and remand this case to the juvenile court for the entry of a new disposition order.

In pertinent part, the designated felony statute, OCGA § 15–11–63, defines a “designated felony act” as an act which constitutes “a second or subsequent violation of Code Sections 16–8–2¹ through 16–8–9, relating to theft, if the property which was the subject of the theft was a motor vehicle.”² Designated felony acts are those which the General Assembly has deemed serious enough to authorize the juvenile court, after conducting a hearing and making certain statutory findings of fact, to confine the juvenile to restrictive custody.³

Here, in addition to the present delinquency adjudication, S.M. had been adjudicated delinquent in December 2011 after admitting to an act which, if committed by an adult, would have been the crime of theft by taking a motor vehicle. It is this prior adjudication that rendered S. M.'s current motor-vehicle theft a designated felony act.

S.M. argues on appeal, as he did in the juvenile court, that the prior adjudication could not be used to render his present act a designated felony because he was unrepresented by counsel at the December 2011 hearing and did not knowingly and voluntarily waive his right to counsel. We agree.

It is well-established that a juvenile has a right to counsel during a dispositional hearing,⁴ although that right can be waived.⁵ But the State has a “heavy burden” of proving, under the totality of the circumstances, that a juvenile knowingly and voluntarily understood and waived his or her right to counsel.⁶ The standard for determining whether the waiver of a non-indigent juvenile, such as S. M., was valid is the same as that used for an adult; namely,

when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney's services and whether the absence of an attorney is attributable to reasons beyond the defendant's control.7

Moreover, the juvenile court must make the juvenile “aware of the danger of proceeding without counsel.”⁸

In the case sub judice, during the December 2011 dispositional hearing, the sole inquiry into S. M.'s lack of counsel came from the assistant district attorney:

[The State]: [S. M.], do you wish to represent yourself today and proceed with this matter or do you want an opportunity to hire a lawyer?

[S. M.]: I'll go on—myself.

S.M. then proceeded to admit to the acts set forth in the delinquency petition, including theft by taking of a motor vehicle.

This brief and cursory exchange was not sufficient to ensure that S.M. understood his right to an attorney, or that he knowingly and intentionally waived that right. No inquiry was made into the reason for S. M.'s lack of counsel,⁹ nor was any information given to ensure that he understood the danger of proceeding without legal representation.¹⁰ S.M. has therefore met his burden of proving that his waiver of counsel in the prior dispositional hearing was neither knowing nor voluntary.¹¹

The issue remains, however, whether S. M.'s collateral attack on the December 2011 delinquency adjudication renders that adjudication inadmissible in the present case for the purposes of the designated felony statute.¹² We conclude that it must. As this Court stated in In the Interest of L. J.,¹³ “a first or prior violation is an element of the designated felony act that must be proven beyond a reasonable doubt before restrictive custody may be imposed under OCGA § 15–11–63(a)(2)(E).”¹⁴ And an admission of guilt that is itself invalid cannot constitute proof beyond a reasonable doubt of the acts admitted therein.¹⁵ The State otherwise tendered no evidence of the prior adjudication except that of the dispositional hearing transcript.¹⁶ It follows then, that the juvenile court's imposition of restrictive custody based upon its rendering of S. M.'s current adjudication of delinquency as a designated felony act pursuant to OCGA § 15–11–63(a)(2)(E) cannot stand. We therefore vacate the dispositional order and remand this case to the juvenile court for entry of a new disposition order consistent with this opinion.

Judgment vacated and case remanded.

DILLARD, Judge.

ANDREWS, P.J., and McMILLIAN, J., concur.