State v. Andrews

• Decision Date: 06 February 1981
• Docket Number: No. 52042,52042
• Citation: 623 P.2d 534,5 Kan.App.2d 678
• Parties: STATE of Kansas, Appellee, v. Marvin L. ANDREWS, Appellant.
• Court: Kansas Court of Appeals

Page 534

623 P.2d 534

5 Kan.App.2d 678

STATE of Kansas, Appellee, v. Marvin L. ANDREWS, Appellant.

No. 52042.

Court of Appeals of Kansas.

Feb. 6, 1981.

Syllabus by the Court

1. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as misdemeanor or felony, unless represented by counsel at trial.

2. A defendant may waive the right to counsel. The waiver, however, may not be presumed from a silent record, and the State has the burden of showing that an accused was advised of his or her right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made.

3. In addition to informing the defendant of the right to counsel, either retained or appointed, the trial court must make more than a routine inquiry when a defendant attempts to waive the right to counsel.

4. The waiver of counsel must be an intelligent one; and whether there was such must depend upon the particular facts and circumstances, including background, experience, and conduct of the accused. The proceeding by which a defendant waives counsel shall be made a matter of record or otherwise the Sixth Amendment of the federal Constitution will be abridged.

5. In a criminal case where the record of judgment to be made upon the journal of the court, pursuant to K.S.A. 1980 Supp. 22-3426(a), does not contain a statement that the defendant was duly represented by counsel, naming such counsel, or a statement that defendant has stated in writing that he or she does not desire counsel to represent him or her, and the record of judgment cannot be corrected to reflect either such requirement, the result is reversible error.

Scott M. Price of Marietta, Kellogg & Price, Salina, for appellant.

William Rex Lorson, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C. J., and ABBOTT and SPENCER, JJ.

SPENCER, Judge:

This appeal arises out of defendant's conviction on a single charge of violating K.S.A. 1979 Supp. 21-4113(1)(a), harassment by telephone. Defendant was sentenced to serve ninety days. Trial was to the court and defendant appeared pro se. He now contends his Sixth Amendment right to counsel was abridged as his waiver of counsel was not a knowing and intelligent one.

Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), established the rule that, "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial."

In State v. Daniels, 2 Kan.App.2d 603, 586 P.2d 50 (1978), this court examined proceedings by which waiver of counsel was made by a defendant likewise having been convicted of a misdemeanor and sentenced to imprisonment relative to determining whether the waiver was made in a knowing and intelligent manner. The court there reiterated the principles and rules to be applied in determining the validity of a waiver of counsel. Of particular relevance here are the following:

"A defendant may waive the right to counsel. The waiver, however, may not be presumed from a silent record, and the state has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)." 2 Kan.App.2d at 605-606, (586 P.2d 50).

"In addition to informing the defendant of the right to counsel, either retained or appointed, the trial court must make more than a routine inquiry when a defendant attempts to waive the right to counsel. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); State v. Cunningham, 222 Kan. 704, 567 P.2d 879 (1977)....

"... As Justice Kaul stated in State v. Cunningham, 222 Kan. at 706 (567 P.2d 879), the record must establish that the defendant knew what he was doing and 'made his choice with his eyes open.' " 2 Kan.App.2d at 607, 586 P.2d 50.

In State v. Oldham, 178 Kan. 337, 338, 285 P.2d 775 (1955), our Supreme Court had occasion to expound upon the safeguards necessary to insure a criminal defendant's constitutional right to counsel, in stating:

"The constitutional right of an accused to counsel is a matter of substance not form, and it is the solemn duty of a trial court to make sure that representation is not an empty gesture, but is a fulfillment of the spirit and purpose of the constitutional mandate. (Willis v. Hunter, 166 F.2d 721 (10 Cir.).)

"The waiver of counsel must be an intelligent one; and whether there was such must depend upon the particular facts and circumstances, including background, experience, and conduct of the accused. The proceeding shall be made a matter of record or otherwise the sixth amendment of the federal constitution will be abridged. (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.)" Emphasis added.

While Oldham concerned an appeal from a felony conviction, in light of the decision announced in Argersinger, the standards applicable to felony convictions are now equally applicable to any conviction wherein a sentence of imprisonment results.

The trial record reveals the following:

"THE COURT: ... The defendant, Mr. Andrews, previously appeared for arraignment entered a plea of not guilty, and asked that his case be scheduled for trial. The record may show that he is appearing personally, acting in his own defense, having waived his right to counsel. And that the State is represented by Mr. Lorson. Are you ready to proceed Mr. Lorson?

"MR. LORSON: Yes, sir.

"THE COURT: Mr. Andrews, are you familiar with the manner in which a trial of this nature is conducted?

"MR. ANDREWS: Yes I am, Your Honor.

"THE COURT: Very well, then I'll not go into an explanation of...