People of The State of Colo. v. BREWSTER

• Decision Date: 08 October 2009
• Docket Number: No. 04CA0845.,04CA0845.
• Citation: 240 P.3d 291
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Garry Anthony BREWSTER, Defendant-Appellant.
• Court: Colorado Court of Appeals

240 P.3d 291

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Garry Anthony BREWSTER, Defendant-Appellant.

No. 04CA0845.

Colorado Court of Appeals,Div. III.

June 11, 2009.

Rehearing Denied Oct. 8, 2009.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Keyonyu X. O'Connell, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CRISWELL. ^*

Defendant, Garry Anthony Brewster, appeals the judgments of conviction entered upon jury verdicts finding him guilty of theft and forgery and the district court's adjudications on five habitual criminal counts. He also appeals the sentence imposed. We affirm the judgments and remand with directions to the trial court.

In 1997, defendant was charged with theft and forgery for writing checks from his former employer's checking account and, in addition, with five habitual criminal counts.

After the jury verdicts but prior to sentencing, defendant filed a series of post-trial motions requesting, among other things, a new trial. During this period between the verdicts and sentencing, (1) defendant's counsel, the public defender, was dismissed at the request of defendant, and defendant proceeded pro se; (2) the trial judge, Judge Fasing, recused himself on his own motion; (3) a series of seven hearings were held on defendant's numerous post-trial motions before a second judge, Judge Russell, between December 1999 and March 2001; (4) in February 2001, defendant was released on bail and later failed to appear at a September 2001 hearing; (5) the court issued an arrest warrant; (6) defendant was arrested, convicted, and sentenced in another criminal case in Ohio sometime between then and May 2003; and (7) in May 2003, defendant was returned to Colorado and appeared before a third judge, Judge Macrum, who proceeded with sentencing.

In July 2003, Judge Macrum adjudicated defendant a habitual criminal on all five counts. Following a proportionality hearing, Judge Macrum sentenced defendant to twenty-four years in the custody of the Department of Corrections in addition to a six-month sentence for contempt of court, to be served consecutively.

I. Transcript Issues

We first conclude that defendant has not been deprived of his due process right to a meaningful and speedy appeal.

A. Chronology

On May 14, 1999, defendant appeared before Judge Fasing at a motions hearing on his pending pro se motions. The court reporter in that proceeding later became unavailable.

Defendant was not sentenced until April 19, 2004; he filed his notice of appeal on April 28, 2004, and the appellate record was filed on October 26, 2005. At that time, defendant observed that the record was missing the transcript from the May 14 motions hearing. The transcript was important because it was of the proceeding at which defendant would have been advised of his Sixth Amendment right to counsel. After some investigation, the managing court reporter for the district court advised defendant that the stenographer's notes of the May 14 hearing were unreadable and that the minute order from that hearing could not be located.

Because of the missing transcript, in July 2006, defendant moved to vacate his judgment of conviction. A division of this court denied that motion and remanded the case to the district court for the limited purpose of settling or reconstructing the record pursuant to C.A.R. 10(c) and (e).

The reconstruction hearing was held in April 2007 and centered on the issue whether defendant had been given a sufficient advisement under People v. Arguello, 772 P.2d 87, 93 (Colo.1989), such that he had knowingly and intelligently waived his right to be represented by counsel. Defendant's former attorney (alternate defense counsel), the prosecutor, and Judge Fasing all testified at this hearing.

Defense counsel testified that he could not remember what the hearing was about, did not remember specifically any events of the hearing, but did remember that at some point his representation of defendant ended. The prosecutor, relying on her notes, testified that “she was not hesitant to say that [the hearing judge] gave a full Arguello advisement,” because it had been her experience that the judge always gave such an advisement, but her notes did not specifically reflect the advisement, only that defense counsel was permitted to withdraw. Finally, the hearing judge testified that, while he did not recall the events of May 14, it was his routine, “without exception,” to use his bench book to advise defendants pursuant to Arguello. Defendant did not testify at the reconstruction hearing, but submitted an affidavit stating that there was “no self-representation warning or inquiry other than did [he] wish to represent [himself],” and the hearing judge “made it clear that [he] would not be provided any other counsel, or advisor, at all.”

At the end of the testimony, the trial court made findings as to what occurred at the pertinent hearing and concluded, based on the totality of the circumstances presented in the record and the evidence received at the reconstruction hearing, that defendant had made a voluntary, knowing, and intelligent waiver of his right to counsel.

B. Meaningful Appeal

Defendant first contends that the transcript of the missing hearing was not adequately remedied by the reconstruction hearing. As a result, he argues, we cannot meaningfully review the record to determine whether he made a valid waiver of his right to counsel. However, we conclude that the court's findings based on the reconstruction hearing, together with the record as a whole, are sufficiently reliable to permit us to conduct an intelligent review of defendant's substantive contention.

A defendant's waiver of his right to counsel must be voluntary, knowing, and intelligent based on the circumstances of each case. People v. Smith, 77 P.3d 751, 757 (Colo.App.2003). “A trial court's determination that a defendant waived the constitutional right to counsel will be upheld if the record affirmatively establishes that the defendant knowingly and intelligently waived that right.” Arguello, 772 P.2d at 93. The burden is on the prosecution to establish a valid waiver. Smith, 77 P.3d at 757.

A waiver may be express or implied from the facts of the case. Arguello, 772 P.2d at 93. An implied waiver of counsel is more accurately described as a forfeiture of the right, rather than a deliberate and informed decision to waive the right, and at a minimum, requires the court to probe the defendant's awareness of the right to counsel and his understanding of the many risks of self-representation. Id. at 93-95.

To determine the validity of a waiver, we examine the advisement given to a defendant and the totality of the circumstances presented by the record as a whole. Id.; Smith, 77 P.3d at 757. The record as a whole must show that “the defendant knowingly and willingly undertook a course of conduct that demonstrates an unequivocal intent to relinquish or abandon his or her right to representation.” People v. Alengi, 148 P.3d 154, 159 (Colo.2006).

However, the loss of a portion of the record does not automatically require reversal. People v. Jackson, 98 P.3d 940, 942 (Colo.App.2004). To obtain relief on a due process claim arising from an incomplete record, a defendant must “ always demonstrate specific prejudice resulting from the state of that record.” People v. Whittiker, 181 P.3d 264, 269 (Colo.App.2006) (quoting People v. Rodriguez, 914 P.2d 230, 301 (Colo.1996)) (emphasis in original); Jackson, 98 P.3d at 942.

In cases in which testimony is in dispute and the exact language used is crucial, reconstruction may not be an appropriate remedy for the missing transcript. Jackson, 98 P.3d at 942; see People v. Killpack, 793 P.2d 642, 643 (Colo.App.1990) (“When [crucial testimony] is in dispute and precise language used is critical, reconstruction is not an appropriate remedy for the missing transcript.”). However, if the record as a whole supports the trial court's reconstruction, there is no reversible error. Jackson, 98 P.3d at 943; see also People v. Anderson, 837 P.2d 293, 300 (Colo.App.1992) (reversal of conviction was not required where appellate court was able fairly to review the defendant's contentions despite missing portions of the transcript).

Here, we agree with defendant that a reconstruction hearing is not the same as having a transcript to review. However, the question is whether the reconstructed record is sufficient to allow adequate review of defendant's substantive contentions. Here, defendant was able to produce witnesses at the reconstruction hearing, provide the court with an affidavit of his recollection of the hearing, and submit his own version of what the findings should reflect to the trial court. Furthermore, defendant has failed to establish any specific prejudice flowing from this hearing other than the mere fact that he cannot review the actual transcript. Because defendant argues only that the advisement was never given and not that the exact language of the advisement was defective, we conclude that the reconstruction hearing and the court's resulting findings are an appropriate remedy for the missing transcript. Cf. Jackson, 98 P.3d at 942.

Our conclusion is further bolstered by the fact that, upon a review of the record as a whole, we have determined that it is sufficient to establish that defendant impliedly waived his right to counsel. Specifically, defendant stated in a March 1999 motion that (1) he had a basic knowledge of the judicial system, legal terms, and courtroom procedure; (2) he had represented himself in a related case; and (3) he had made a “knowing and voluntary choice.” Cf. People v. McGlotten, 166 P.3d 182, 187 (Colo.App.2007) (review impossible where record in its entirety could not provide an adequate basis from which to review the defendant...