People v. Alengi
| Decision Date | 25 March 2004 |
| Docket Number | No. 02CA0830.,02CA0830. |
| Citation | 114 P.3d 883 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nancy Aloha ALENGI, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Ken Salazar, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Jennifer L. Melton, Kim, Colorado, for Defendant-Appellant.
Opinion by Judge ROY.
Defendant, Nancy Aloha Alengi, appeals from the judgment of conviction entered on jury verdicts finding her guilty of possession of a schedule II controlled substance, § 18-18-405(1)(a), C.R.S.2003; manufacture of a schedule II controlled substance, § 18-18-405(2)(a)(I), C.R.S.2003; and special offender for possession of a deadly weapon, § 18-18-407(1)(f), C.R.S.2003. Defendant's principal contention on appeal is that the trial court erred in concluding that she impliedly waived her constitutional right to assistance of counsel. We agree and therefore reverse the judgment and remand for a new trial.
At the outset we recognize that another divided division of this court is simultaneously announcing People v. Alengi, 114 P.3d 11, 2004 WL 583608 (Colo.App. No. 02CA0832, Mar. 25, 2004), affirming the judgment of defendant's husband's conviction on the same record. We further recognize that another division of this court is simultaneously announcing People v. Rawson, 97 P.3d 315, 2004 WL 583739 (Colo.App. No. 02CA0527, Mar. 25, 2004), reversing a defendant's conviction and concluding, on different facts, that the trial court erred in not ascertaining whether the defendant was indigent before forcing him to trial without counsel.
In early 2000, the police received information from several informants of illegal activity at defendant's home. The police obtained a search warrant, searched the home, and found chemicals and equipment used in the manufacture of methamphetamine, drug paraphernalia that tested positive for methamphetamine, and several weapons. The police arrested defendant and her husband. Defendant admitted using methamphetamine, but denied manufacturing the drug.
Initially, defendant and her husband hired separate private counsel. Their respective counsel filed numerous pretrial motions and attended several pretrial hearings. Both counsel then filed motions to withdraw, explaining that defendant and her husband had been uncooperative and that a conflict of interest had arisen.
The trial court scheduled a conference on October 16, 2001 to discuss the motions to withdraw. During the conference, both attorneys asserted that they had not been paid for some time. Husband's attorney expressed his impression that the husband was "playing a game and trying to manufacture issues." Defendant's counsel stated that defendant had sent a check in payment of fees, but the check was dishonored because of insufficient funds. The trial court allowed counsel to withdraw, but reserved ruling on whether defendant and her husband had waived further assistance of counsel. Defendant and her husband did not appear at the conference and later alleged lack of notice.
On November 2, 2001, defendant appeared for a hearing on pretrial motions without counsel, but explained that she intended to hire counsel. Her husband appeared accompanied by counsel who had not entered, and ultimately did not enter, his appearance. The court continued the hearing until November 16 and admonished defendant as follows:
And let me tell both Mr. and Mrs. . . . Alengi, if you do not have counsel retained and ready to go by then we are going to go ahead with the motions hearing, and you will be deemed to have waived counsel at least for the purposes of that hearing. That doesn't mean you can't get counsel later for trial. We will go ahead with that hearing whether or not [husband's counsel] or any other counsel can be present, do you understand?
Defendant answered in the affirmative.
On November 16, 2001, defendant again appeared without counsel. She explained that she and her husband had already spent lots of money on attorney fees, that new attorneys refused to attend the hearing without retainers, that they did not presently have sufficient funds for the retainers demanded by the attorneys, and they needed time to convert some assets into cash to pay the retainers. At the prosecutor's request, the trial court then gave defendant the advisement articulated by the supreme court in People v. Arguello, 772 P.2d 87 (Colo.1989), which is designed to assure that a defendant makes a knowing, voluntary, and intelligent waiver of counsel.
With respect to defendant's financial ability, the following exchange occurred during the Arguello advisement:
At the close of the advisement, the trial court again admonished defendant and her husband that if they did not retain counsel the matter would go forward. The court also stated it would deem their failure to retain counsel as an election to go forward without counsel.
On November 26, 2001, defendant and her husband again appeared without counsel. They explained that while they had raised some money, they still did not have enough cash to pay the retainers and needed more time. The court set the next hearing for December 3, 2001.
On December 3, defendant and her husband once again appeared without counsel. They explained to the court that they had hired counsel and both attorneys would be at the final motions hearing on December 13, 2001. At a December 5, 2001 hearing, defendant and her husband again appeared without counsel. The prosecutor informed the trial court that she had contacted the two attorneys defendant and her husband claimed represented them, but both attorneys denied representing defendant and her husband. Defendant explained that they still did not have enough cash to pay the retainers, but expected to get more money from a friend and retain counsel by December 13. Defendant's husband indicated that they had shipped "merchandise," but the customers "pay by e-mail or banks" and "[i]t has been slow because of the bombing."
At the December 13, 2001 hearing, defendant and her husband again appeared without counsel. They explained that they did not have money to pay the retainers, but had received funds in their bank and were waiting for the bank to make them available. They also stated that they had no intention of representing themselves at trial. The court reviewed the history of the case and found that they had impliedly waived their right to counsel by their conduct. The court then denied the pending motions that defendant's original counsel had filed months before.
On the trial date, January 8, 2002, defendant and her husband again appeared without counsel. Before the trial began, defendant and her husband explained that they had repeatedly attempted to convert assets into cash to afford counsel, and they also explained that they did not want to represent themselves because proceeding pro se would be harmful to them. The court found that defendant and her husband had waived their right to counsel and went ahead with the trial. Defendant and her husband were tried jointly, and the trial court advised them that an objection made by one of them would be treated as an objection by both defendants. Subsequently, the jury reached a verdict, and the judgment entered.
At the March 11, 2002 sentencing hearing, defendant appeared with counsel and was sentenced to eight years in the Department of Corrections. Defendant filed a timely motion for reconsideration upon which the trial court never ruled. Defendant filed a motion to proceed in forma pauperis on appeal, which the trial court granted, and appellate counsel was appointed.
The right to counsel is a fundamental right guaranteed by the Sixth Amendment. People v. Woods, 931 P.2d 530 (Colo. App.1996). However, a criminal defendant does not have an absolute right to counsel of his or her choice in all cases and may not manipulate that right to impede the efficient administration of justice. People v. Barnes, 636 P.2d 1323 (Colo.App.1981). As a corollary to the constitutional right to counsel, a defendant has the alternative right to self-representation. Colo. Const. art. II, § 16; People v. Arguello, supra.
Before a defendant is allowed or required to proceed pro se, he or she must effect a valid waiver of the right to counsel. A waiver is "an intentional relinquishment or abandonment of a known right or privilege." King v. People, 728 P.2d 1264, 1268 (Colo.1986)(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). A waiver may be express or implied, and a defendant's misconduct may result in a forfeiture of the right to counsel. People v. Arguello, supra.
However, courts must indulge every reasonable presumption against waiver. People v. Curtis, 681 P.2d 504 (Colo.1984).
Whether a waiver is effective presents a mixed question of law and fact that we review de novo. People v. Stanley, 56 P.3d 1241 (Colo.App.2002). On appeal, we must not only look at the...
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People v. Alengi, No. 04SC493.
...failed to make a detailed inquiry of their financial affairs before concluding they impliedly waived that right. In People v. Nancy Aloha Alengi, 114 P.3d 883 (Colo.App.2004), the court of appeals reversed Nancy Alengi's conviction on the basis that the trial court should have inquired into......
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People v. Bottenfield, No. 04CA1435.
...Colo. 401, 317 P.2d 1041 (1957). Waiver is the intentional relinquishment or abandonment of a known right or privilege. People v. Alengi, 114 P.3d 883 (Colo.App.2004) (cert. granted June 27, The waiver of a statutory right must be made freely and voluntarily. People v. Wiedemer, 852 P.2d 42......