State v. Anderson
| Decision Date | 09 November 2015 |
| Docket Number | Docket No. 42027,2015 Unpublished Opinion No. 699 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. ARNOLD DEAN ANDERSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
Judgment of conviction for possession of methamphetamine, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
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Arnold Dean Anderson appeals from his judgment of conviction after he was found guilty of possessing methamphetamine and after he acknowledged that he was a persistent violator. On appeal, Anderson argues that the district court ignored his pretrial request to represent himself, that the court abused its discretion by not conducting an adequate inquiry when he requested substitute counsel prior to his sentencing hearing, and that his sentence is excessive. For the reasons that follow, we affirm.
After Anderson was charged by criminal complaint with possession of methamphetamine, a public defender was appointed to represent Anderson. Subsequently, the State filed an information charging Anderson with possessing methamphetamine and alleging that he was a persistent violator. Thereafter, Anderson filed a request for new counsel, asserting several things his public defender failed or refused to do. The district court ordered that a new public defender represent Anderson, and a second public defender filed a notice of appearance on behalf of Anderson.
During a pretrial hearing, at which Anderson was not present, the second public defender informed the court that he was having difficulties with Anderson:
I am having difficulties with Mr. Anderson with wanting to speak with me. He keeps telling me he wants to represent himself. I told him he'd be able to address that today. I did speak with [another attorney], who was looking at substituting in, so there may be a resolution to that. But I bring that to the Court's attention because it is causing some difficulty preparing for trial.
The prosecutor explained that Anderson "asked to represent himself [in another case]; however, we did continue, in the hopes that . . . some other attorney would be substituting in on those cases." The district court wanted to address the matter in a few days and noted that if Anderson "wants to represent himself, that's his choice we'll have the hearings and proceed." A notice of hearing was filed setting a hearing a few days later.
At that hearing, the prosecutor first brought out that Anderson intended to hire private counsel. The court asked the second public defender for clarification, and the second public defender explained that Anderson told him that Anderson had spoken to a private attorney. Anderson then addressed the court, clarifying that the private attorney he talked to would represent him if the trial were continued. The prosecutor also noted that the private attorney would also be substituting in for Anderson's other pending criminal case. Shortly after the hearing, the private attorney filed a stipulation for substitution of counsel, and the trial was continued.
On March 4, a jury found Anderson guilty of possessing methamphetamine in violation of Idaho Code § 37-2732(c)(1), and Anderson acknowledged that he was a persistent violator pursuant to I.C. § 19-2514. Sentencing was set for March 24. On March 17, a motion was filed pro se by Anderson listing this case and another case entitled "ICR 35 motion correction or reduction of sentence oral argument." The motion indicated service upon the prosecutor and on the public defender that had formerly represented Anderson. This motion generally complained about the court's prior failure to allow Anderson to represent himself, post-conviction matters, information presented at sentencing, and prior representation by the second public defender. It is difficult to determine if any of the matters raised specifically related to the present case. OnMarch 23, one day before his initially scheduled sentencing hearing, Anderson served a "motion to dismiss [counsel] [ineffective] assistance of [counsel]" through the jail's mail system. However, this document was not filed with the court until March 26, after the initial sentencing hearing. During the initial sentencing hearing, Anderson addressed the court about another issue, but made no reference to his desire to dismiss his attorney prior to the sentencing hearing or any existing conflict. The evidence to be considered for sentencing was presented and discussed. Thereafter, the court stated that it had seen the Rule 35 motion in the file that morning and indicated a desire to discuss its import. After counsel and Anderson had a discussion, counsel indicated that it appeared Anderson was lumping two cases into one, but that he felt that further discussion and clarification was necessary. The sentencing hearing was then continued until March 28.
As noted, Anderson's motion to dismiss counsel was filed after the initial sentencing hearing. The day after the motion was filed, Anderson's attorney filed a motion to withdraw, citing Anderson's motion as the basis for his request. Anderson listed numerous assertions in his motion of what his private attorney did not do or refused to do stemming from the performance of counsel in preparation for and during trial. Other than the caption, which sought to dismiss his attorney, Anderson did not indicate what type of relief he was seeking--whether he wanted a different attorney or wanted to represent himself.
At the continued sentencing hearing on March 28, the district court began by acknowledging that Anderson had "filed a motion to terminate [the private attorney]." After considerable discussion about what he wanted to do, Anderson indicated that he did not want to represent himself, could not hire a different private attorney, and did not want the public defender (whom he had previously discharged and complained about in the Rule 35 motion). Ultimately, however, Anderson stated: "I'll use the public defender, I guess, or conflict attorney, I don't know." Following additional discussion, the court denied the motions to dismiss and withdraw and proceeded to obtain the sentencing recommendations of counsel and pronounce sentence. The court sentenced Anderson to a unified sentence of twelve years, with four years determinate, to run concurrently with a sentence in another case.1 Anderson appeals.
Anderson raises three issues on appeal. First, he argues that the district court ignored his pretrial request to represent himself. He next contends that the court abused its discretion by not conducting an adequate inquiry when he requested substitute counsel prior to his continued sentencing hearing. Finally, he asserts that his sentence is excessive.
On appeal, Anderson argues that the district court ignored his pretrial request to represent himself. A criminal defendant has a Sixth Amendment right to represent himself. Faretta v. California, 422 U.S. 806, 819 (1975); State v. Lankford, 116 Idaho 860, 865, 781 P.2d 197, 202 (1989). Although Idaho case law does not set forth the requisite elements of an effective self-representation invocation, other jurisdictions require a criminal defendant to assert that right in a manner that "is timely, not for purposes of delay, unequivocal, voluntary, [and] intelligent." See, e.g., United States v. Maness, 566 F.3d 894, 896 (9th Cir. 2009) (per curiam); accord State v. Lippert, 145 Idaho 586, 597, 181 P.3d 512, 523 (Ct. App. 2007) (Lippert I); State v. Reber, 138 Idaho 275, 277, 61 P.3d 632, 634 (Ct. App. 2002).2
At issue here is whether Anderson's request was unequivocal. A request is unequivocal when the court can be reasonably certain that a defendant wishes to represent himself in lieu of exercising his right to counsel. See United States v. Carpenter, 680 F.3d 1101, 1102 (9th Cir. 2012) (per curiam). This requirement serves to prevent defendants from State v. Langford, 882 P.2d 490, 493 (Mont. 1994) (quoting Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989)). Courts should "indulge in every reasonable presumption against waiver" of the right to counsel. See Brewer v. Williams, 430 U.S. 387, 404 (1977).
A defendant's invocation of his right to self-representation may be communicated indirectly to the court through his counsel. People v. Cherry, 961 N.Y.S.2d 380, 382 (N.Y. App.Div. 2013). At the pretrial hearing, Anderson himself never stated that he wished to represent himself, as he was not present. Instead, the second public defender stated that he was having difficulty with Anderson and that "[Anderson] keeps telling me he wants to represent himself." The public defender went on to explain that another attorney might be "substituting in" and remarked that this substitution "may be a resolution." The public defender's statements taken together, while demonstrative of the difficult relationship between himself and Anderson, are not a clear and unequivocal invocation of Anderson's right to self-representation.
Moreover, even if we were to deem the attorney's request an unequivocal assertion on Anderson's behalf, an unequivocally asserted request for self-representation can still be waived by subsequent words or conduct indicating a change of intention. People v. Abdu, 215 P.3d 1265, 1268 (Colo. App. 2009); see also ...
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