Blandino v. State

• Decision Date: 03 April 1996
• Docket Number: No. 26521,26521
• Citation: 914 P.2d 624,112 Nev. 352
• Parties: Kim BLANDINO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 624

914 P.2d 624

112 Nev. 352

Kim BLANDINO, Appellant, v. The STATE of Nevada, Respondent.

No. 26521.

Supreme Court of Nevada.

April 3, 1996.

Appeal from a judgment of conviction entered following a bench trial of one count of violation of custody rights. Eighth Judicial District Court, Clark County; A. William Maupin, Judge.

Martin Hastings, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondent.

OPINION

PER CURIAM:

FACTS

Following a preliminary hearing, the state charged appellant with one count of violation of custody rights. See NRS 200.359. The state accused appellant of removing his two children from the State of Nevada and wilfully concealing them from their mother. Appellant requested the district court to allow him to proceed in proper person and to engage the services of a friend who was not a licensed attorney, but who had legal experience. Appellant did not trust attorneys and indicated that his religious beliefs precluded him from relying on the advice of persons who do not share his beliefs.

The district court conducted a thorough canvass under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The district court concluded that appellant voluntarily requested to proceed in proper person and that he understood the dangers and consequences of self-representation. The district court informed appellant, however, that appellant's friend could not represent him in court in any manner.

The district court conducted a bench trial and found appellant guilty of the crime of violation of custody rights. The district court conducted a sentencing hearing on August 24, 1994, and sentenced appellant to serve a term of six years in the Nevada State Prison and ordered him to pay $3,000.00 in restitution. This appeal followed.

On January 10, 1995, the clerk of this court received appellant's motion to proceed in proper person. NRAP 46. On February 2, 1995, this court denied appellant's motion and remanded this matter to the district court for the appointment of counsel. On February 16, 1995, appellant filed a petition for rehearing on the denial of his motion to proceed in proper person. The district court appointed counsel to represent appellant on March 20, 1995.

DISCUSSION

Appellant contends that he has a constitutional right to waive counsel on appeal and to represent himself. Appellant views his waiver of trial counsel and the district court's Faretta canvass as a permanent waiver of counsel.

In Faretta v. California, 422 U.S. 806, 818-19, 95 S.Ct. 2525, 2532-33, 45 L.Ed.2d 562 (1975), the United States Supreme Court ruled that the right to trial counsel as guaranteed under the Sixth Amendment provided criminal defendants the inverse right to self-representation at trial. The Court concluded that "forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Id. at 817, 95 S.Ct. at 2532. The Supreme Court has not addressed whether the right to self-representation extends to direct appeals.

The language of the Sixth Amendment demonstrates that no right to self-representation exists on appeal. That amendment only applies to criminal trials:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district court wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Because the Sixth Amendment only applies to trials, it does not support the existence of a right to self-representation on appeal. See Lumbert v. Finley, 735 F.2d 239, 245 (7th Cir.1984). Faretta is thus distinguishable. Lumbert, 735 F.2d at 245.

Persuasive reasons support requiring the assistance of counsel on direct appeal from a conviction. This court has a duty to ensure that appellants receive a fair appeal. See, e.g., United States v. Turnbull, 888 F.2d 636, 639-40 (9th Cir.1989) cert. denied 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990); Africa v. Anderson, 542 F.Supp. 224, 229-30 (E.D.Pa.1982). This court could not ensure the fairness of criminal appeals if we were to create a right to self-representation on appeal. Documents filed by persons who are untrained in the law are often incoherent and fail to identify the issues presented on appeal. Poorly drafted pleadings also require additional time to review and add to the already overwhelming workload of this court. The due process right to a fair appeal would be hindered by establishing a right to self-representation on appeal.

Appellant contends further that he has a right to represent himself based on his religious beliefs. Appellant asserts that God has instructed him not to retain counsel, but to pursue his appeal in proper person. According to appellant, forcing counsel upon him would violate his religious beliefs by requiring him to disobey God. Appellant asserts a constitutional right to represent himself based on the Free Exercise Clause of the First Amendment.

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