Lopez v. Thompson

• Citation: 202 F.3d 1110
• Decision Date: 04 February 2000
• Docket Number: No. 97-35837,97-35837
• Parties: (9th Cir. 2000) FRANCO LOPEZ, a/k/a Eduardo T. Hernandez, Petitioner-Appellant, v. S. FRANK THOMPSON, OPINION Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1110

202 F.3d 1110 (9th Cir. 2000)

FRANCO LOPEZ, a/k/a Eduardo T. Hernandez, Petitioner-Appellant, v. S. FRANK THOMPSON, OPINION Respondent-Appellee.

No. 97-35837

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 16, 1998

Filed April 27, 1999

Rehearing En Banc Granted and Opinion Withdrawn September 20, 1999

Argued and Submitted November 18, 1999

Filed February 4, 2000

[Copyrighted Material Omitted]

COUNSEL: Leland R. Berger, Portland, Oregon, for the petitioner-appellant.

Richard D. Wasserman, Assistant Attorney General, Salem, Oregon, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-95-00244-JPC

Before: Procter Hug, Jr., Chief Judge, J. Clifford Wallace, Stephen Reinhardt, Melvin Brunetti, Ferdinand F. Fernandez, Thomas G. Nelson, Andrew J. Kleinfeld, Michael Daly Hawkins, A. Wallace Tashima, Barry G. Silverman, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Concurrence by Judge Wallace; Dissent by Judge Tashima

McKEOWN, Circuit Judge:

The question before us is whether Franco Lopez knowingly and intelligently waived his right to assistance of counsel at sentencing in accord with Faretta v. California , 422 U.S. 806 (1975). Resolution of this question requires us to consider two important, and often competing, constitutional rights applicable to a criminal proceeding: the right to assistance of counsel and the correlative right to waive assistance of counsel. Under the circumstances of this case, which included two hearings and a written waiver, we conclude that Lopez did knowingly and intelligently waive his right to counsel and choose selfrepresentation.¹ We thus affirm the district court's denial of Lopez's petition fo)r writ of habeas corpus brought under 28 U.S.C. S 2254.

BACKGROUND AND PRIOR PROCEEDINGS

This case originated in state court in Multnomah County, Oregon, and stems from Lopez's sexual assault of the 11year-old daughter of a woman with whom he was living. Represented by counsel, Lopez pleaded no-contest to three counts of sodomy in the first degree and one count of sex abuse in the first degree. Two hearings -the plea hearing and the hearing on Lopez's motion to remove counsel -as well as Lopez's written waiver of counsel bear on this appeal.

Plea Hearing

At the plea hearing on October 25, 1989, Lopez was represented by attorney William Brennan. Judge Haas apprised Lopez of the charges, the possible prison terms and fines for each count, and the possibility of probation. Lopez indicated that he understood:

The Court: The charges against you are sodomy in the first degree, two counts; sex abuse in the first degree; sodomy in the first degree. Each one of these is punishable by imprisonment of 20 years in prison with a ten year minimum. Further, [there is] a $100,000 fine on each one of them and the sex abuse in the first degree is punishable by five years with a two and a half year minimum and $100,000 fine. Those sentences could run concurrent and they could run consecutive. Some of them you could be sen tenced to the penitentiary and others you could be placed on probation. Do you understand that?

Mr. Lopez: Yes sir.

At the hearing, the deputy district attorney advised that the state would seek a "dangerous offender" charge.² The judge explained to Lopez that if such a charge were sought, then a psychiatrist would examine him to recommend whether he should be classified as a dangerous offender. In a colloquy involving the judge, the deputy district attorney, and Brennan, Lopez was told that if he were classified as a dangerous offender, his sentence on one count would increase from a range of 10-20 years to a range of 15-30 years. Again, Lopez acknowledged that he understood:

Deputy District Attorney: Does the Court need to advise of a dangerous offender?

The Court: Yes, I am getting down to that. The Dis trict Attorney stated that what we are going to do in reference to this case is there will be -as I under stand it, there will be dismissal of charges, is that right?

Deputy District Attorney: There is [sic] four charges and we would seek a dangerous offender on only one charge.

Mr. Brennan: Rather than multiple.

Deputy District Attorney: Rather than seeking con secutive.

The Court: We will await a PSI and they would seek one dangerous offender charge. On the dangerous offender charge, what happens if they seek that, what I do is appoint a psychiatrist who interviews you and gives you an examination and they make a recom mendation whether or not you have a sustained potential for dangerous offender treatment. If you do[,] that means the Court on that count can sentence you to a maximum of 30 years to the State Correc tions Division. Do you understand that? That is an issue in this case.

Mr. Lopez: I understand, sir.

Deputy District Attorney: Your Honor, should we indicate there is a potential 15 year minimum on that?

The Court: Yes. There is a 15 year minimum on that also.

Mr. Brennan: Just for clarification, the way I explained it to [Lopez] is that would only enhance one of the 20 year sentences from 20 to 30 and from ten year minimum to a 15 year minimum if the Court were to find him a dangerous offender, only if.

The Court: Yes. . . .

Hearing on Motion to Remove Counsel

Eight days later, on November 2, 1989, Lopez appeared before a different judge, Judge Roth, for another hearing. The subject of the hearing was Lopez's motion to remove Brennan -Lopez's fourth attorney in a succession of counsel³ -as his counsel for the sentencing proceeding. Lopez insisted to the court that he desired to proceed to the sentencing hearing without representation of counsel. Brennan recommended against Lopez's self-representation at sentencing and explained to Judge Roth in open court, in Lopez's presence, that to determine dangerous offender status, psychiatrists would evaluate Lopez and then either testify or submit reports to the judge:

Mr. Brennan: . . . . We were in front of Judge Haas, and Mr. [Lopez] entered a pleading of no-contest on the underlying case. Sentencing was set for the 27th of November . . . [;] and [as to] the fugitive matter which is I believe the second case down on your docket, . . . Judge Haas indicated that he would hear that matter at the conclusion of sentencing. Mr. [Lopez] has informed me that he wants to fire me and would like to represent himself.

Deputy District Attorney: Your honor, I should inform the court the state is opposed to any change . . . [;] this would make the fifth attorney for this defendant: Mr. Levy, Mr. Ravio, Mr. Ameras . . . , and Mr. Brennan have all been on this case and all have had difficulty with the defendant . . . .

The Court: What charges does he have?

Deputy District Attorney: He has a fugitive matter and a number of Sodomy charges.

Mr. Brennan: He has three counts of Sodomy in the First Degree . . . and one count of Sex Abuse in the First Degree. . . . [T]he District Attorney . . . would be recommending a dangerous offender treatment on one count, one count only. I have contacted Dr. Frank Collistro to evaluate Mr. [Lopez]. That is in place, and also Dr. David Meyers would be . . . eval uating Mr. [Lopez], . . . and the two would then sub mit their reports to Judge Haas or testify as the case may be on that issue. I really think that Mr. [Lopez] would be better served by having an attorney to assist him rather than representing himself . . . .

Judge Roth then turned his attention to Lopez, inquired about his background, and told him that he should have legal advice:

The Court: . . . . Mr. [Lopez], . . . . How old are you?

Mr. Lopez: 30 years old, sir.

The Court: And how much education do you have? Formal education. Schooling.

Mr. Lopez: Schooling?

The Court: Yes.

Mr. Lopez: High School.

The Court: Where?

Mr. Lopez: El Paso, Texas.

The Court: Any law training at all?

Mr. Lopez: I have some paralegal experience, sir.

* * *

The Court: Well, here, here's the problem[,] Mr. [Lopez]. I know Mr. Brennan. Mr. Brennan is a law yer and he's going to do the best he can for you. . . . [Y]ou've had other lawyers, and you are not a law yer yourself. And the old saying is, even when a law yer represents himself, he has a fool for a client. . . . [S]o, it just doesn't work too well. You got to have legal advice and you got serious charges here.

Mr. Lopez: I understand that.

Brennan subsequently interceded again with a recommendation that counsel be appointed for Lopez:

Mr. Brennan: . . . . I do think he needs counsel . .. and I would ask the court to appoint someone else. At this point I feel there is a real rift between Mr. [Lopez] and myself. And I think, I'm not sure what the outcome will be in the sentencing on this . . . .

Later in the hearing, as the judge was inquiring about whether he wanted to represent himself, Lopez began talking about crimes he had committed in Texas. The judge again advised Lopez about the dangers of self-representation:

The Court: Now I don't want to get into the whole thing. Now all I want to do is, I'm listening to you and uh, uh, you want to represent yourself? Is that what you want?

Mr. Lopez: Well, if I have to. Yes, I would.

The Court: What do you mean you have to? Now you're having sort of second thoughts.

Mr. Lopez: No, no, now if you're going to put it that way, yes I will represent myself. The thing is, is that, your honor, this woman had hired me to murder her husband and this is the information that I have with held from my attorney and from the district attor ney's office.

Mr. Brennan: Mr. [Lopez], at this point I would advise you to remain silent.

The Court: Yes, I think this is . . .

Mr. Brennan: I strongly advise you to remain silent[;] I'm going on the record with that.

The Court: Yeah, now I . . .

Mr. Brennan: Follow my advice.

Mr. Lopez: I want this on the record...