McCracken v. State

• Decision Date: 11 January 1974
• Docket Number: No. 1791,1791
• Citation: 518 P.2d 85
• Parties: Jack Jeffrey McCRACKEN, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 85

518 P.2d 85

Jack Jeffrey McCRACKEN, Petitioner, v. STATE of Alaska, Respondent.

No. 1791.

Supreme Court of Alaska.

Jan. 11, 1974.

Olof K. Hellen, Asst. Public Defender, Juneau, Herbert D. Soll, Public Defender, Anchorage, for petitioner.

Douglas B. Baily, Anchorage, Joseph D. Balfe, Dist. Atty., Dan Hickey, Asst. Atty. Gen., John E. Havelock, Atty. Gen., Juneau, for respondent.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, and FITZGERALD, JJ.

OPINION

BOOCHEVER, Justice.

In this case we consider whether a prisoner has a right to represent himself in post-conviction relief proceedings.

Petitioner Jack Jeffrey McCracken filed a petition for a writ of habeas corpus in the court below, and the judge below issued an order to show cause why a writ of habeas corpus should not issue. In connection with this petition, the superior court appointed the assistant public defender to represent the petitioner. Shortly afterward, and before the hearing, the petitioner informed the court that he wished to represent himself, and to that end he filed a motion for substitution of counsel. This motion was unopposed by respondent and endorsed by the Public Defender's Office.

The superior court issued an order denying the motion on the grounds that 'the petitioner's interests can best be protected by having an attorney represent him.' Pursuant to Appellate Rules 23 and 24, McCracken then presented to this court a petition for review of the superior court's order, alleging that in the absence of a showing that he would be likely to be disruptive, or was incompetent to serve as counsel in his own behalf, he had a right to represent himself.

On January 29, 1973 this court granted the petition for review, and on March 13, 1973, in light of the amendment of Criminal Rule 39 promulgated subsequent to the superior court order in this case with reference to the appointment of counsel, ¹ this court remanded the matter to the superior court for reconsideration of petitioner's request to represent himself. On May 29, 1973 the superior court again appointed the Alaska Public Defender Agency to represent McCracken.

On petitioner's behalf, the public defender has filed a motion to reinstate the petition for review and to supplement arguments in its support.

We again grant review of the superior court's order denying petitioner's request to represent himself because, under Appellate Rules 23 and 24, the request 'involves a controlling question of law as to which there is substantial ground for difference of opinion,' 'immediate and present review of such order . . . may materially advance the ultimate termination of the litigation.' and the question sought to be reviewed 'is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court.'

The superior court, in its order reaffirming its earlier denial of McCracken's request to represent himself, based its decision upon Criminal Rule 39(b)(4). ² The Court explained that:

The defendant is not a lawyer, the defendant is in prison, the defendant is incarcerated away from the location of the court, and the issues in this case are sufficiently complex to require briefing and argument in order to secure the defendant his full rights pursuant to law.

Before construing the applicable Criminal Rule, we find it necessary to examine the constitutional principles underlying petitioner's asserted right to represent himself, for a court rule, like a statute, must be interpreted whenever possible so as to conform to the United States and Alaska constitutions. ³ If such a construction is not possible, it must be declared to be invalid or unconstitutional. Both the sixth amendment to the United States Constitution ⁴ and art. I, sec. 11 of the Alaska Constitution ⁵ guarantee a criminal defendant the right to counsel. McCracken argues that the right to counsel is not tantamount to an obligation to be represented by counsel, and that therefore the right not to have counsel is a right retained by the people under the ninth amendment to the United States Constitution ⁶ and art. I, sec. 21 of the Alaska Constitution. ⁷ It is McCracken's contention that this court should imply as a matter of constitutional right an entitlement to represent oneself similar to what is statutorily provided for in 28 U.S.C. § 1654, ⁸ the federal provision guaranteeing parties in federal courts the right personally to plead and conduct their own cases.

The United States Supreme Court has never held that there is a constitutional right to proceed pro se, but the Court has indicated in strong dicta that such a right exists, at least at the trial stage. In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the Court wrote:

The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. . . . (T)he Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open (emphasis added). 317 U.S. at 279, 63 S.Ct. at 241, 87 L.Ed. at 274-275.

The tenor of this language was reiterated in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 174 (1946):

(That, under certain circumstances, an accused may have a right to representation) does not, however, mean that the accused may not make his own defense; . . . Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.

329 U.S. at 174, 67 S.Ct. at 218, 91 L.Ed. at 174.

And in Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), the Court, in reaffirming its dictum in Carter, said 'The constitutional right (to representation), of course, does not justify forcing counsel upon an accused who wants none.' 355 U.S. at 161, 78 S.Ct. at 195, 2 L.Ed.2d at 172. A number of circuit court decisions have gone further, and have stated explicitly that a defendant has a constitutional right to represent himself at his trial, ⁹ although other courts have been reluctant to find the right to self-representation to be of constitutional proportions. ¹⁰

However, the aforementioned Supreme Court dicta and the circuit court decisions cited above either construed the sixth amendment's guarantee of the assistance of counsel to incorporate a corollary constitutional right to proceed in propria persona, ¹¹ tended to embrace such a construction, ¹² or relied for authority upon cases which did one or the other. ¹³ Consequently, these cases are of questionable relevance to the case at hand, for the sixth amendment to the United States Constitution and art. I, sec. 11 of the Alaska Constitution by their terms apply only to criminal prosecutions, and protect only those accused of crime with respect to the prepartion of a defense. An evidentiary hearing on an application for post-conviction relief is not a criminal prosecution, petitioner will not be presenting a defense to a criminal prosecution, and McCracken is not an accused, having already been convicted. ¹⁴ Therefore, if we are to derive a right to represent oneself from either the Federal or the Alaska constitutions, we must look elsewhere. We are persuaded that there is such a right under art. I, sec. 21 of the Alaska Constitution, which specifies that '(t)he enumeration of rights in this constitution shall not impair or deny others retained by the people.' At the time that the Alaska Constitution was enacted ¹⁵ and became effective, ¹⁶ the right of self-representation was so well established that it must be regarded as a right 'retained by the people.' The Treaty of Cession, ¹⁷ under which Russia ceded its possessions in North America to the United States, provided that the inhabitants 'shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.' By virtue of section 35 of the Judiciary Act of 1789, ¹⁸ parties then possessed the right in all the courts of the United States to 'plead and conduct their own cases personally.' Thus, throughout Alaska's history prior to statehood parties were without exception entitled to exercise the right of self-representation. Although we do not imply that all statutory rights in existence at the time that Alaska was admitted to the Union constitute rights 'retained by the people' under art. I, sec. 21 of the Alaska Constitution, we are of the opinion that a right so long established and of such fundamental importance must be held to have been so retained. ¹⁹

In considering the fundamental importance of self-representation, we are mindful that ours is a society valuing the autonomy of the individual and his freedom of choice. When accused of a crime, or, as here, when seeking relief from a conviction resulting in imprisonment, the opportunity to determine whether to present one's own case or to be represented by appointed counsel is of paramount importance to the individual. Under some circumstances, he may indeed be the only person who will forcefully advance arguments in an unpopular cause. Alaska has been and is endowed with courageous attorneys who have zealously represented those accused of crime, but such dauntless representation may not always be available to one who is the object of opprobrium. The opportunity to present one's own position where liberty itself is at stake should not lightly be disregarded, and the right to counsel should not be used to bar self-representation. '(T)he procedural safeguards of the Bill of Rights are not to be treated as...