State v. Bass
| Decision Date | 19 July 2019 |
| Docket Number | No. 119,572,119,572 |
| Citation | 444 P.3d 380 (Table) |
| Parties | STATE of Kansas, Appellee, v. McClinton BASS, Appellant. |
| Court | Kansas Court of Appeals |
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Green and Powell, JJ.
McClinton Bass appeals his convictions and sentences for attempted aggravated indecent liberties with a child and possession of cocaine. On appeal, Bass' principal argument is that the district court violated his right to self-representation under the Sixth Amendment to the United States Constitution. He also contends that the district court erred by denying his presentence motion to withdraw his guilty pleas. Moreover, he contends that the district court erred in calculating his criminal history score. We consider only Bass' argument that the district court violated his Sixth Amendment right to self-representation. We conclude that the district court violated Bass' right to self-representation resulting in structural error. As a result, we reverse Bass' convictions, vacate his sentences, and remand the case to the district court for further proceedings.
On September 13, 2017, the State charged Bass with one count of aggravated indecent liberties with a child, a severity level 3 person felony in violation of K.S.A. 2017 Supp. 21-5506(b)(1), and one count of possession of cocaine, a severity level 5 nonperson felony in violation of K.S.A. 2017 Supp. 21-5706(a). Because Bass was indigent, the district court appointed counsel—Elizabeth Kluzak—to represent Bass.
About two months later, Bass moved pro se to dismiss Kluzak as counsel. Bass concluded in his pro se motion the following:
The district court held a hearing on Bass' motion. During the hearing, Bass told the district court that "[he] would like either another counsel ... or [he could] try to do it [himself]." Further, Kluzak provided her reasons why she believed that she could still represent Bass. When addressing Bass' complaints about access to discovery, Kluzak noted that she At the end of the hearing, the district court denied Bass' motion, ruling that Bass did not have a justifiable dissatisfaction with Kluzak's representation. But, after the district court denied Bass' motion, Bass asked the district court: "I can't represent myself?" To which the district court replied:
Following that hearing, Bass filed two more pro se motions. First, he moved to dismiss Kluzak as counsel again. Second, he moved to represent himself and appoint standby counsel.
The district court scheduled a combined hearing on Bass' pro se motions and Bass' preliminary hearing. Of note, a different district court judge presided over this hearing than his previous hearing where the judge told Bass to file a separate written motion on self-representation. At the outset of this hearing, however, Bass and the State announced that they had entered into a plea agreement. Under the plea agreement, Bass would plead guilty to one count of attempted aggravated indecent liberties with a child, as well as one count of possession of cocaine. Both parties agreed to recommend that the district court sentence Bass to the mitigated presumptive sentences for both felony counts based on Bass' criminal history and to also request that Bass' sentences run concurrently.
The district court then started to ask Bass questions about whether it was his desire to enter into the plea agreement with the State:
Next, the district court engaged in the plea colloquy. Ultimately, the district court accepted Bass' guilty pleas.
Before sentencing, Bass moved to withdraw his guilty pleas, arguing that he had been misled. The district court appointed Bass new counsel. The district court held a hearing on Bass' motion. At the hearing, both Bass and Kluzak testified. Both testified openly about Bass' illiteracy. Bass explained that he had other inmates write his pro se motions, which he would then sign. In the end, the district court denied Bass' motion, finding that "[t]here [was] no evidence to support a finding that Mr. Bass was misled, coerced, mistreated or taken advantage of before or at the time of his plea in the case." Then, based on Bass' criminal history score of A, the district court sentenced Bass to a controlling term of 122 months' imprisonment followed by lifetime postrelease supervision for his crimes of attempted aggravated indecent liberties with a child and possession of cocaine.
Bass timely appealed.
Our Supreme Court has observed: "The extent of the right to assistance of counsel and the related right to self-representation is a question of law over which this court exercises unlimited review." State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018).
The Sixth Amendment of the United States Constitution right to have the assistance of counsel in a criminal prosecution, like other constitutional rights, can be waived: "The United States Supreme Court has held ‘that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation.’ " Bunyard , 307 Kan. at 470 (quoting State v. Vann , 280 Kan. 782, 793, 127 P.3d 307 [2006] ). A defendant's right to represent himself or herself exists implicitly within the Sixth Amendment. State v. Jones , 290 Kan. 373, 377, 228 P.3d 394 (2010). Further, a defendant's right to self-representation applies in all "critical stages" of the criminal process where the defendant also has a right to counsel. Jones , 290 Kan. at 379 (citing Iowa v. Tovar , 541 U.S. 77, 80, 124 S. Ct. 1379, 158 L.Ed. 2d 209 [2004] ).
As our Supreme Court has explained, defendants have a right to represent themselves when they have made an intelligent and understanding waiver: "A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel." Jones , 290 Kan. at 376. To be a knowing and intelligent waiver, the district court must tell the defendant of "the dangers and disadvantages of self-representation, so that the record will establish that ‘he [or she] knows what he [or she] is doing and his [or her] choice is made with eyes open.’ " Faretta v. California , 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975) (quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S. Ct. 236, 87 L.Ed. 268 [1942] ).
In determining if the defendant has made a knowing and intelligent waiver, "[a] trial court may not measure a defendant's competence to waive his or her right to counsel by evaluating the defendant's ‘technical legal knowledge.’ " Jones , 290 Kan. at 377 (quoting Godinez v. Moran , 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L.Ed. 2d 321 [1993] ). Moreover, the district court should not consider if an attorney could better represent the defendant. Bunyard , 307 Kan. at 470-71.
"A district judge's denial of a criminal defendant's right to forego counsel and represent himself or herself is structural error requiring reversal of the defendant's convictions." Bunyard , 307 Kan. 463, Syl.
On appeal, Bass argues that the district court violated his Sixth Amendment right to self-representation when it declined to consider his request for self-representation. Bass asserts that once he asked the district court to represent himself following the denial of his request for new counsel, the law required the district court to tell him about the dangers and disadvantages of...
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