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Click here for the full text of this decision FACTS:Atlanta police officer Randy Cruson stopped Elzie Smith, because he did not activate his turn signal 100 feet before making a left-hand turn at an intersection. When Cruson first confronted Smith, Cruson noticed that Smith had an odor of alcohol on his breath. Cruson, however, did not ask Smith to submit to a field sobriety or breathalyzer test. Instead, Cruson looked in Smith’s vehicle and noticed an open container of beer. Smith told Cruson the open container in question was the only contraband in the vehicle. Smith offered to retrieve the container, but Cruson did not let Smith back in the vehicle. Cruson became suspicious that the open container was not the only contraband in the vehicle. He based his belief, however, solely on Smith’s refusal to consent to a search of the vehicle. Cruson called for a backup unit, which arrived four to five minutes after being called. The backup unit that arrived was a canine unit. The dog performed an open-air sniff of the vehicle and alerted to the driver’s side door. The dog handler found cocaine in the console of the vehicle. Following his indictment and trial, a jury convicted Smith of possession of a controlled substance after the trial court declined his plea of guilty. The jury assessed his punishment at 50 years of imprisonment. On appeal, Smith argued that the conviction should be reversed, because: his defense attorney was suspended from the practice of law at the time of the trial; the trial court erred by failing to accept the guilty plea; and because the search that resulted in discovery of the cocaine was unlawful. HOLDING:Affirmed. Both Smith and the state concede that Clyde E. Lee, Smith’s trial counsel “was on administrative leave due to an untimely payment of his required bar dues.” At oral argument, counsel for Smith argued that, while Lee was suspended, he was “not a lawyer” and therefore Smith had a complete denial of his right to counsel. The court noted the CCA’s 1996 opinion Cantu v. State, which holds that “once an attorney has fulfilled the”threshold’ requirements for legal practice, a per se rule cannot be justified on a jurisdictional basis regardless of the subsequent change in status.” This reasoning, the CCA stated, does not apply to attorneys who were suspended or disbarred for substantive reasons. The 6th Court noted that there was no indication Lee was suspended for any substantive reason such as incompetence or conduct showing bad moral character. Therefore, based on Cantu, the court did not find that Lee’s suspension for failure to pay bar dues was a per se violation of Smith’s Sixth Amendment right to counsel. The court also noted its previous holding in Hudson v. State, “where Lee was also trial counsel, and was also practicing with a suspended license due to failure to complete mandatory continuing legal education requirements.” In that case, the 6th Court recognized that any practice of law during a suspension constitutes professional misconduct and subjects the member to discipline. The suspension of trial counsel’s law license before trial does not, however, result in a per se denial of Smith’s Sixth Amendment right to effective assistance of counsel, the court stated. Instead, an inquiry into the facts of the case and the reason for the suspension is required. Thus, the court found that the fact that an attorney suspended from practice for nonpayment of dues represented a client does not invalidate the representation, unless the representation was sufficiently incompetent to violate the client’s right to effective assistance of counsel. Because there was no claim that any acts or omissions of Lee in conducting the trial on Smith’s behalf was deficient or ineffective, the court overruled the point of error. Next, the court examined the trial court’s failure to accept his guilty plea. The trial court refused to take Smith’s plea, the court stated, because it did not believe that the plea was voluntary. But the court found that the trial court had “authority to refuse to accept any negotiated plea agreement” and properly exercised its discretion in refusing to accept Smith’s negotiated plea of guilty. The court found that the issue of an improper search was not preserved because “no motion to suppress, no suppression hearing, and no complaint raised to the introduction of evidence about the search, and the cocaine was admitted into evidence without objection.” OPINION:Carter, J.; Morriss, C.J., and Carter and Moseley, JJ.

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