People v. Arguello, 84CA1452

Citation737 P.2d 442
Decision Date26 March 1987
Docket NumberNo. 84CA1452,84CA1452
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Fidel Helario ARGUELLO, a/k/a John Clifford, Defendant-Appellant. . II
CourtCourt of Appeals of Colorado

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Haddon, Morgan & Foreman, P.C., Lee D. Foreman, Denver, for defendant-appellant.

KELLY, Judge.

The defendant, Fidel Helario Arguello, appeals the judgment of conviction entered on a jury verdict of guilty of felony escape. Among other things, Arguello contends that the trial court erred in forcing him to trial without an attorney. He argues that this denied him his constitutional right to be represented by counsel. We reverse.

The facts here are undisputed. In 1981, Arguello allegedly escaped from the Pitkin County jail in Aspen, Colorado. In March 1984, Arguello was returned to Pitkin County from Nevada on a detainer to stand trial on the escape charges.

Upon his arrival in Colorado, Arguello requested and received court-appointed counsel. Within a short time, the first appointed lawyer withdrew from representing Arguello because of a conflict with the defendant. Shortly thereafter, the second court-appointed attorney also withdrew because of similar irreconcilable conflicts.

Despite serious disagreements with Arguello, the third lawyer (O'Reilly) continued the representation for approximately two months. For a portion of the two months, however, the trial court allowed Arguello to represent himself with O'Reilly being appointed either to advise Arguello or to serve as his co-counsel. On June 19, 1984, Arguello moved to withdraw from pro se status and requested that the trial court allow O'Reilly to represent him fully. The honeymoon was brief; in mid-July 1984, O'Reilly totally withdrew from representing Arguello with the trial court's permission.

At about the same time, Arguello made another motion to appoint counsel, stating as grounds that he was incompetent to represent himself and that he desired a new lawyer for the trial, scheduled for August 22, 1984. At trial, the court denied the motion, forcing Arguello to proceed through the trial pro se. The trial court based its denial on a finding that by his disruptive, uncooperative conduct, Arguello had impliedly waived his right to counsel.

Arguello contends that the trial court's refusal to substitute counsel deprived him of his right to be represented by an attorney as guaranteed by the United States and Colorado Constitutions. We agree.

Under the Sixth and Fourteenth Amendments and Colo. Const. art. II, § 16, an accused has the right to have the assistance of counsel for his defense in all criminal prosecutions, but he also has the right to refuse the assistance of counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A trial court has a protective duty to ascertain whether a defendant's waiver of counsel is knowingly and intelligently made. Faretta v. California, supra; People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980). In reaching this decision, the trial court must determine whether the waiver was explicit or is implied from the circumstances. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); see People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976).

In determining if there was a knowing and willing waiver, the trial court must consider such factors as the background, experience, and conduct of the defendant. King v. People, 728 P.2d 1264 (Colo.1986). A defendant may not manipulate his right to an attorney so as to impede the efficient administration of justice or to "whipsaw the court" between a constitutional right and the defendant's own ineffectiveness at trial. People v. Lucero, supra. In addition, the state must demonstrate by clear and convincing evidence, that an accused's waiver was knowing, intelligent, and voluntary, and the trial court must "indulge every reasonable presumption against [this] waiver of a fundamental right." King v. People, supra; People v. Chavez, 632 P.2d 574 (Colo.1981).

Because of the strong presumption against a waiver, the trial court must "make careful inquiry " to "ascertain whether the defendant has been made aware of the dangers and disadvantages of self-representation." King v. People, supra (emphasis added). See, e.g., DiBartolomeo v. State of Florida, 450 So.2d 925 (Fla.App.4th Dist.1984) (court could not compel defendant to stand trial unrepresented without conducting inquiry into ability and desire intelligently to waive counsel). If an implied waiver is at issue, the record must clearly and convincingly demonstrate that the defendant's conduct evinced a knowing, willing, and "unequivocal intent to relinquish or abandon his right to legal representation." King v. People, supra.

There is ample evidence in the record that Arguello could not get along with his court-appointed attorneys. Nevertheless, despite Arguello's antagonistic and obstreperous conduct, O'Reilly did represent him either fully or in an advisory capacity until about a month before trial. Arguello consistently asked for counsel; hence, he did not expressly waive his right to representation.

The trial court granted O'Reilly's motion to withdraw and denied Arguello's motion for substitute counsel, but nothing in the record discloses that the court made any inquiry into the defendant's understanding that his conduct could constitute an implied waiver of his right to an attorney. Likewise, the record does not indicate whether the trial court offered Arguello the option of going forward with O'Reilly or accepting the consequences of no representation at all. The...

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4 cases
  • People v. Arguello, 87SC212
    • United States
    • Colorado Supreme Court
    • April 17, 1989
    ...P.C., Denver, for respondent. MULLARKEY, Justice. We granted certiorari to review the court of appeals' decision, People v. Arguello, 737 P.2d 442 (Colo.Ct.App.1987), which reversed the felony escape conviction of Fidel Helario Arguello. The court of appeals held that the prosecution did no......
  • People v. Benney
    • United States
    • Colorado Court of Appeals
    • December 3, 1987
    ...to "whipsaw" the judicial system by sabotaging his own trial and then claiming reversible error. See People v. Arguello, 737 P.2d 442 (Colo.App.1987) (Sternberg, J., dissenting). We cannot countenance such Defendant's final argument is that the trial court's denial of his request for seques......
  • In re Marriage of Ward and Baker
    • United States
    • Colorado Court of Appeals
    • April 3, 2008
  • People v. Garcia
    • United States
    • Colorado Court of Appeals
    • November 24, 2000
    ...request for the lesser non-included offense instruction for second degree aggravated motor vehicle theft. See generally People v. Arguello, 737 P.2d 442 (Colo.App.1987) (a defendant may not manipulate his right to an attorney so as to impede the efficient administration of justice or to "wh......
2 books & journal articles
  • The Implied Waiver of Right to Counsel
    • United States
    • Colorado Bar Association Colorado Lawyer No. 08-1988, August 1988
    • Invalid date
    ...1256 (Colo. 1985). 6. King, supra, note 2; Tague, supra, note 5; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). 7. 737 P.2d 442 (Colo.App. 1987, cert. pending, 87SC212). This case has been fully briefed and is awaiting oral argument or decision. 8. Supra, note 2. 9. Su......
  • A Different Kind of Representative: Dba v. Puc Revisited - December 2007 - Workers' Compensation Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 36-12, December 2007
    • Invalid date
    ...Court v. Employers' Unity, Inc., 716 P.2d 460 (Colo. 1986). 18. Reliford v. People, 579 P.2d 1145 (Colo. 1978). 19. People v. Arguello, 737 P.2d 442 (Colo.App. 1987). 20. CRS § 8-43-211(1). 21. If a licensed attorney commits an act of malpractice, the client has recourse in the form of a le......

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