State v. Schurle, WD 83914

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAlok Ahuja, Judge
Citation641 S.W.3d 713
Parties STATE of Missouri, Respondent, v. Matthew Jay SCHURLE, Appellant.
Decision Date05 April 2022
Docket NumberWD 83914

641 S.W.3d 713

STATE of Missouri, Respondent,
v.
Matthew Jay SCHURLE, Appellant.

WD 83914

Missouri Court of Appeals, Western District.

Filed: September 7, 2021
Motion for Rehearing and/or Transfer to Supreme Court Denied October 26, 2021
Sustained and Cause Ordered Transferred December 21, 2021
Opinion Readopted: April 5, 2022
Cause ordered retransferred to the Missouri Court of Appeals, Western District April 5, 2022


Christian Lehmberg, Columbia for appellant.

Daniel N. McPherson, Jefferson City for respondent.

Before Division One: Lisa White Hardwick, P.J., and Alok Ahuja, and Anthony Rex Gabbert, JJ.

Alok Ahuja, Judge

Following a jury trial in the Circuit Court of Nodaway County, Matthew Schurle was convicted of delivery of methamphetamine, in violation of § 579.020,1 possession of marijuana, in violation of § 579.015, and unlawful possession of drug paraphernalia, in violation of § 579.074. Schurle appeals. He contends that there was insufficient evidence to support his conviction for delivery of a controlled substance. Schurle also argues that the circuit court plainly erred in finding that he

641 S.W.3d 716

waived his right to counsel, without conducting a hearing to determine that Schurle knowingly and voluntarily chose to represent himself, and without securing his written waiver. Finally, Schurle argues that the circuit court plainly erred in finding that he was not indigent, and therefore that he was not eligible for appointed counsel.

We conclude that the evidence was sufficient to support Schurle's conviction for delivery of a controlled substance. As the State concedes, however, the circuit court plainly erred by proceeding to trial without determining after a hearing that Schurle was knowingly and intelligently waiving his right to representation. Consistent with the State's concession of error, Schurle's convictions are reversed, and the case is remanded for further proceedings consistent with this opinion.

Factual Background

At approximately 3:00 a.m. on March 29, 2018, Sergeant Austin Hann of the Nodaway County Sheriff's Department witnessed Schurle make a left turn without signaling at an intersection east of Ravenwood. Sergeant Hann followed Schurle's vehicle, and observed it drift toward the soft shoulder of the roadway. Sergeant Hann initiated a traffic stop.

When Sergeant Hann approached the vehicle, he observed that Schurle was on his phone and appeared to be leaving a voicemail for someone, indicating that he had been pulled over, and giving his location. Schurle's hands were visibly shaking, and he avoided eye contact with Sergeant Hann. This led Sergeant Hann to suspect that some criminal activity was underway. Throughout their conversation, Sergeant Hann noted that Schurle repeatedly said "uh" and "um", and would trail off without completing his sentences, suggesting that Schurle was delaying as he attempted to think of things to say.

Schurle stated that he was coming from his storage unit, but based on the direction Schurle had been driving, Sergeant Hann concluded that he was headed toward the only storage units in the area, not away from them. Sergeant Hann asked Schurle if anything was going to "come up" when Sergeant Hann checked Schurle's identification, and Schurle informed him that there was an active warrant for his arrest. Sergeant Hann then requested that Schurle step out of the vehicle, handcuffed him, and had him sit in Sergeant Hann's patrol car. Sergeant Hann confirmed that there was an active warrant for Schurle's arrest.

Sergeant Hann arranged for Schurle's vehicle to be towed, since Schurle was being arrested. As a part of standard protocol, Sergeant Hann attempted to conduct an inventory search of Schurle's vehicle, but found that the car was locked with the keys in the ignition. Sergeant Hann felt that Schurle was "making a great effort to prevent anyone from gaining access [to his] vehicle."

Through the windows of Schurle's vehicle, Sergeant Hann was able to see what appeared to be a marijuana cigarette sitting in plain view in the center console. Sergeant Hann then had his dog sniff around the outside of Schurle's car, and the dog indicated that it had detected narcotics in the trunk area.

Sergeant Hann searched Schurle and found $480 in cash, all in $20 bills, in Schurle's pocket. Schurle claimed that he had just gotten paid, but then "immediately stated that he did not have a job." At trial, Schurle admitted that the explanation for the money which he gave to Sergeant Hann was a lie. Schurle offered another explanation for the money at trial, testifying that it was gas money to enable

641 S.W.3d 717

him to drive to California. He testified that his sister had wired $300 of the money to him, and that he had earned the remainder.

Sergeant Hann also found a digital scale in the front pocket of Schurle's hooded sweatshirt. The scale was covered in a crystal residue, which was later determined to be methamphetamine. The scale was packaged to look like a bar of soap from a hotel. Sergeant Hann testified without objection that the digital scale he found in Schurle's pocket was consistent with "[t]he weighing and measuring of narcotics for distribution," and that such digital scales were commonly used in drug transactions.

Schurle was transported to the jail and was searched again by Sergeant Hann. Sergeant Hann found a spare key for Schurle's vehicle hidden in the lining of his vest.

A search of Schurle's vehicle was conducted once it arrived at the jail. Officers found a marijuana cigarette and a lock pick set in the center console, as well as a portion of a glass pipe with residue on it in the back seat. In the trunk, officers found rubber tubing containing a methamphetamine residue, and a marijuana test kit.

Schurle was charged with delivery of a controlled substance, for his possession of methamphetamine with the intent to distribute; possession of a controlled substance, for his possession of marijuana; and possession of drug paraphernalia, for his possession of "rolling papers formed as a join[t]."

Schurle posted a $10,000 bond and hired two private attorneys to represent him. A year after private counsel entered their appearances, they filed motions to withdraw. As justification for their withdrawal, the attorneys cited an inability to agree with Schurle on litigation strategy, and his non-responsiveness concerning payment of their past-due fees. Schurle consented to his attorneys’ withdrawal. He asked the court how he could receive the assistance of the Public Defender, because "[t]he limiting factor [on obtaining new counsel] is finances." The court granted the motions to withdraw on April 22, 2019, and continued Schurle's trial to allow him time to obtain new counsel.

Schurle applied to the Public Defender for representation. On May 6, 2019, the Public Defender filed a Determination of Non-Indigency with the circuit court, which concluded that Schurle was not indigent because he had previously retained private counsel, and had also posted a $10,000 bond. Even though private counsel had withdrawn due in part to Schurle's inability to pay their fees, the Public Defender asserted that "[i]t is not presumed that when private counsel requires further compensation to take a case to trial, that a Public Defender Attorney can be utilized by default when private counsel chooses to discontinue their relationship with the defendant."

Schurle appealed to the circuit court, which held a hearing on May 16, 2019. Schurle informed the court that he had posted bond and retained private counsel with money he had received from his father. Schurle stated that his father had stopped paying for the costs of his defense, and that further financial resources from his father "[we]re no longer available." Schurle informed the court that he was presently unemployed and homeless, living on a friend's couch. Although Schurle stated that it was his intent to move to California, the court noted that Schurle was able-bodied, and that there was nothing preventing him from obtaining a temporary job in Missouri. Ultimately, the court determined it could not "find any grounds to overturn the public defender's decision."

641 S.W.3d 718

"You have the ability ... to earn income, you just choose ... not to, so I'm [not] going to overrule their finding." The court then set the case for trial on September 30, 2019, stating that this should give Schurle enough time to retain counsel.

The trial began as scheduled, with Schurle representing himself. The jury convicted Schurle as charged and recommended a term of imprisonment and fines on each offense. The court accepted the jury's recommendation, sentencing Schurle to ten years’ imprisonment on Count I, to run consecutively to sentences of one year in the county jail on Counts II and III (which were to run concurrently with each other). The court also assessed a $1,000 fine on Count I, and $500 fines on both Count II and Count III.

Schurle appeals. He has been represented by the Public Defender in connection with this appeal.

Discussion

Schurle raises three Points on appeal. First, he argues that there was...

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