State v. Sandor
| Decision Date | 01 December 2005 |
| Docket Number | No. 32663.,32663. |
| Citation | 624 S.E.2d 906 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee v. Francis Anthony SANDOR, III, Defendant Below, Appellant. |
Syllabus by the Court
1. A judge's decision to allow an accused to exercise his right to self-representation is reviewed under an abuse of discretion standard.
2. "The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution." Syllabus Point 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).
3. "A person accused of a crime may waive his constitutional right to assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly." Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964).
4. "A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial." Syllabus Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983)
5. " Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985).
6. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).
7. When an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused's choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.
Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Benjamin M. Mishoe, Third Year Law Student, (Practicing Under Rule 10), Charleston, for Appellee.
Karen L. Hall, Morgantown, for Appellant.
This is an appeal of a conviction for misdemeanor battery from the Circuit Court of Monongalia County.
In this case, after his arrest, and after being fully advised of his constitutional right to the assistance of counsel, the appellant chose to represent himself in magistrate court and was subsequently convicted of misdemeanor battery. The appellant appealed the magistrate court conviction to the circuit court. The circuit court did not advise the appellant of his right to counsel, and did not question the appellant's decision to exercise his right to self-representation before the circuit court. After a bench trial before the circuit court, the appellant was once again convicted of misdemeanor battery.
We are now asked to examine the circuit judge's post-trial conclusion — made in the absence of any pre-trial admonitions to or colloquies with the appellant — that the appellant knowingly, intelligently and voluntarily waived his right to representation by an attorney before the circuit court. As set forth below, we find no error in the circuit judge's determination and affirm the conviction.
On May 5, 2001, appellant Francis Anthony Sandor, III was arrested and charged with misdemeanor battery in Monongalia County, West Virginia. The arrest followed an altercation inside a convenience store in which the appellant knocked a female acquaintance to the ground and restrained her there while claiming he was making a "citizen's arrest."1
Later that day, the appellant was arraigned in magistrate court and signed a form expressly waiving his right to counsel.2 Subsequently, in the magistrate court proceeding, the appellant filed eight motions and one request for discovery on his own behalf. A bench trial was conducted by a magistrate on November 14, 2001, and despite the appellant's pro se defense, he was convicted of misdemeanor battery.
On November 19, 2001, the appellant filed paperwork with the magistrate court clerk to initiate an appeal of his case to the circuit court. Included with the paperwork that the magistrate court clerk had the appellant complete was a financial affidavit that is used to determine an accused's eligibility for public defender services.3 This affidavit — which in Monongalia County is normally forwarded to the circuit court for determination of whether counsel should be appointed for an accused — was instead inadvertently lodged in the appellant's magistrate court file. The magistrate court file was thereafter forwarded to the circuit court on November 30, apparently with the financial affidavit still buried within.
The circuit court scheduled the trial of the appellant's case to begin on January 22, 2002. Prior to his trial, on January 17, the appellant — still acting pro se — filed a motion for a continuance because of "the time that would be needed to subpoena witnesses for my defense." The appellant asserted that he needed more time to prepare because he was unaware that a trial date had been scheduled, and because he had been out of town from the end of November 2001 through early January 2002. A hearing on the continuance motion was held the next day and the motion was denied. At that hearing, the appellant indicated to the circuit court that he completed a financial affidavit, but had done so because the magistrate clerk "had me just fill out these two papers" and that he filled out "whatever they gave me." The appellant told the circuit judge that "I filled out a pauper's affidavit just so I could get a [new trial] date."4
At no time — either by any other writing or by any statement — did the appellant ever affirmatively indicate to the circuit court, to the prosecutor, or to anyone else that he wished to alter his decision to proceed on the misdemeanor battery charge without the assistance of counsel. Instead, the record is replete with statements and conduct which the circuit court later found indicative of the appellant's desire to continue self-representation.5
Furthermore, the record indicates that the circuit court had previous experience with the appellant acting pro se in a criminal matter. At the same time that the appellant was representing himself in magistrate court in the misdemeanor case at bar, the record reveals that the appellant had a separate felony criminal case pending before the same circuit judge. In that separate case, he had asserted his right to self-representation. More importantly, two months before his circuit court trial on the misdemeanor battery charge, the appellant had represented himself at his trial on the felony charge and was acquitted.
The record indicates that the appellant was brought before the circuit judge for arraignment on a felony charge on June 8, 2001. The appellant initially advised the circuit judge that he intended to obtain counsel. Several subsequent hearings and trial dates were continued because the appellant asserted that he needed additional time to obtain counsel. The circuit court finally appointed counsel for the appellant, but the appellant rejected the attorney's appointment and thereafter proceeded pro se.
Trial of the felony charge was finally scheduled to begin in circuit court on November 27, 2001. The appellant appeared pro se at a circuit court hearing on November 19, 20016 and again argued for a continuance — but this time asserted only that he did not have transcripts of prior hearings and was therefore unprepared for trial. The appellant, acting pro se, filed and argued several other motions at the same hearing. Another hearing was held on November 26, 2001, and the appellant again addressed several motions he prepared by himself, including motions to continue the trial. The circuit judge refused to grant the appellant additional continuances. None of the appellant's motions or actions at either of these hearings indicated to the circuit judge that the appellant was seeking the assistance of counsel or that he no longer wished to continue to proceed pro se.
A jury trial began on the appellant's felony charge in circuit court on November 27, 2001. The appellant again renewed his motion to continue, not because he had no attorney, but because he wanted more time to prepare for trial. The motion was denied. After a two-day trial, during which the appellant acted wholly without the assistance of counsel, the appellant was acquitted of the felony charge.
Thereafter the circuit court's appellate retrial of the appellant's misdemeanor battery charge was conducted on January 22, 2002. At trial, the appellant — acting pro se — cross-examined all three of the prosecution's witnesses, raised an...
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