People v. Rawson, 02CA0527.

• Decision Date: 25 March 2004
• Docket Number: No. 02CA0527.,02CA0527.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Merlin RAWSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

97 P.3d 315

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Merlin RAWSON, Defendant-Appellant.

No. 02CA0527.

Colorado Court of Appeals, Div. IV.

March 25, 2004.

As Modified on Denial of Rehearing May 6, 2004.

Certiorari Granted August 16, 2004.

Ken Salazar, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, William Merlin Rawson, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of second degree assault on a peace officer. Defendant also appeals his sentence. We reverse and remand for a new trial.

Defendant was charged with two counts of second degree assault on a peace officer. He secured a $10,000 bond for his release and retained private counsel. Counsel later withdrew, and the case proceeded to trial, where defendant represented himself. Upon conviction on both counts, the court sentenced defendant to the Department of Corrections (DOC) for two five-year sentences to be served consecutively.

I.

Defendant contends that the trial court erred by not advising him of his right to counsel under the Sixth Amendment and Colo. Const. art. II, § 16 and therefore his purported waiver of this right was invalid. We agree.

The fundamental right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and is considered essential to a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); People v. Arguello, 772 P.2d 87 (Colo.1989). The Sixth Amendment right to counsel includes both the right to court-appointed counsel for an indigent and the right to a retained attorney for a defendant who is financially able to pay for legal representation. King v. People, 728 P.2d 1264 (Colo.1986).

As a corollary to the Sixth Amendment right to counsel, a defendant has the alternative right to self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Colorado Constitution reinforces this right, stating that "the accused shall have the right to appear and defend in person." Colo. Const. art. II, § 16; People v. Arguello, supra.

A defendant's right to self-representation is conditioned on the requirement that the defendant "has an intelligent understanding of the consequences of so doing." People v. Moody, 630 P.2d 74, 77 (Colo.1981)(quoting Martinez v. People, 172 Colo. 82, 85, 470 P.2d 26, 28 (1970)). Thus, before a defendant is allowed to proceed pro se, the defendant first must waive the right to counsel. Faretta v. California, supra; People v. Arguello, supra.

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. People v. Arguello, supra.

In assessing the validity of a waiver, courts must indulge every reasonable presumption against finding a waiver of the fundamental right to counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); People v. Arguello, supra. Where the record is silent regarding the issue of waiver, no presumption can arise. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); People v. Arguello, supra. Any doubts regarding the waiver must be resolved in the defendant's favor. People v. Arguello, supra.

"[A]n explicit statement of waiver is not invariably necessary to support a finding that the defendant waived ... the right to counsel"; in some cases waiver may be inferred from the actions and words of the defendant. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979).

An implied waiver of counsel resulting from a defendant's misconduct is more accurately described as a forfeiture of the right rather than a deliberate and informed decision to waive the right. People v. Arguello, supra. However, most courts use the terminology of "implied waiver" and apply the legal standards for a waiver in determining whether a defendant's disruptive or uncooperative behavior resulted in a loss of the right to counsel. People v. Arguello, supra; see also Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)(defendant's disruptive and stubbornly defiant conduct resulted in the loss of his right to be present at his own trial, after he was adequately warned of the consequences of his conduct by the trial judge); Thomas v. Wainwright, 767 F.2d 738 (11th Cir.1985)(at some point, a defendant may waive his right to counsel by his unreasonable refusal to communicate with his court-appointed attorney); People v. Moody, supra (the defendant lost the right to represent himself by his adamant and unreasonable demand for new jury panel); People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976)(the defendant's failure to make any effort to retain counsel after discharging his retained attorney, and his lack of desire for legal representation, constituted waiver of the right to counsel).

In King v. People, supra, the supreme court articulated the following test for an implied waiver of counsel:

In order for a court to conclude that an accused has impliedly waived counsel, the record as a whole, including the reasons proffered by the defendant for not having counsel, must show that the defendant knowingly and willingly undertook a course of conduct that evinces an unequivocal intent to relinquish or abandon his right to legal representation.

King v. People, supra, 728 P.2d at 1269.

The defendant in King had failed to secure retained or appointed counsel before trial despite the trial court's repeated warnings that the trial date would not be continued. The trial court forced the defendant to trial pro se without a careful inquiry into the defendant's understanding of his right to counsel. The supreme court held that this procedure was reversible error because, without an adequate advisement from the trial court, the defendant's conduct could not amount to an implied waiver of his right to counsel.

Even if the choice to proceed pro se is "voluntary," the waiver is not valid until the court ensures that the waiver is made knowingly and intelligently. People v. Arguello, supra. A waiver cannot be knowing and intelligent unless the record clearly establishes that the defendant understands the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses to the charges and circumstances in mitigation, all the facts essential to a broad understanding of the whole matter, and the requirement of complying with the rules of procedure at trial. People v. Stanley, 56 P.3d 1241, 1244 (Colo.App.2002).

The trial court has the responsibility of ensuring the validity of a waiver by properly advising the accused. The court must confirm that the accused is making a knowing and informed decision to forgo "many of the traditional benefits associated with the right to counsel." Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541; see also People v. Lucero, 200 Colo. 335, 340, 615 P.2d 660, 663 (1980).

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023. "To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand." Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). The trial court's responsibility then is to ensure that a defendant is "made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).

The Colorado Trial Judge's Benchbook lists suggested questions that a trial court should ask every defendant who seeks to proceed pro se, including whether: the defendant understands the right to counsel; the defendant understands that if he or she cannot afford an attorney, one will be appointed; the defendant understands the charges and possible penalties; the defendant has any legal training; the defendant is educated; the defendant is under the influence of any drug, medication, or alcohol that would affect his or her understanding; the defendant wishes to consult with the public defender before making a decision to waive counsel; the defendant understands the complexity of criminal law; the defendant understands the right to remain silent; the defendant requests advisory counsel; the defendant understands the risks involved in self-representation; the defendant understands his or her rights of confrontation and cross-examination; and the defendant understands that he or she has the right to compel witnesses to appear and testify. People v. Arguello, supra; People v. Stanley, supra. A court's failure to make these inquiries does not automatically render the waiver invalid, but is an exception that should rarely be invoked. People v. Arguello, supra.

Whether a waiver of the right to counsel is knowing and intelligent presents a mixed question of law and fact that we review de novo. United States v. Cash, 47 F.3d 1083 (11th Cir.1995); People v. Stanley, supra. On appeal, the reviewing court must...