Opinion
No. 110828.
03-13-2015
CITY OF LAWRENCE, Appellee, v. Anthony Tyrone JACKSON, Appellant.
Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant. Elizabeth M. Hafoka, city prosecutor, for appellee.
Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant.
Elizabeth M. Hafoka, city prosecutor, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Anthony Tyrone Jackson appeals from his convictions for driving under the influence of alcohol for the second time, driving on a suspended license for the second time, and impeding traffic. He argues that the district court violated his Sixth Amendment right to counsel by failing to ensure that when he waived this right he did so intelligently and knowingly and by failing to inquire into the nature of the conflict with his appointed attorney. Because we find merit to Jackson's contentions, we reverse and remand for a new trial.
Facts
A detailed recitation of the facts will be necessary for a full understanding of the history and legal issues of this case.
In August 2010, Jackson was arrested in Lawrence, Kansas, for operating a motor vehicle while under the influence of alcohol for the second time, driving on a suspended or revoked license, driving without insurance, interfering with the duties of a police officer, and driving too slowly. Before his case was heard in Lawrence Municipal Court, the city prosecutor dismissed the driving without insurance charge but upgraded his driving while suspended charge to a second offense. In municipal court, Jackson was initially represented by a Douglas County Legal Aid attorney.
After Jackson's first attorney filed a motion to suppress evidence on his behalf and the motion was denied by the municipal court, the legal aid attorney withdrew from representing Jackson and the municipal court appointed a replacement. While represented by his second attorney, Hatem B. Chahine, Jackson was convicted by the municipal court on all counts. He appealed his convictions to the district court.
Once his case was docketed with the district court, Jackson applied to have an attorney appointed for him because he could not afford to hire one. On the application Jackson signed, he was informed that he would be appointed an attorney if he “m[et] the standards for indigent status.” Based on Jackson's application, the district court appointed Elbridge Griffy IV to represent Jackson.
Griffy filed another motion to suppress the evidence that was obtained when Jackson's car was stopped. The City again amended the complaint against Jackson to charge him with second time driving under the influence, second time driving while suspended, third time driving with no insurance, interfering with the duties of a police officer, and driving unreasonably slowly so as to impede traffic.
In August 2012, Griffy moved to withdraw from representing Jackson. In his motion, Griffy stated that irreconcilable differences had arisen in his attorney-client relationship and that Jackson believed Griffy was in collusion with the prosecution.
Along with the motion to withdraw, Griffy filed a notice to his client advising Jackson of his responsibilities to the court. The notice stated, in salient part, that Jackson would be obligated to follow court orders once Griffy withdrew: “Anthony Tyrone Jackson, defendant, is hereby notified that he is personally responsible for complying with all orders of the court and time limitations established by the rules of procedure or by court order, and the dates of any pending trial, hearing or conference.”
After a hearing on the motion to withdraw, in September 2012 the district court permitted Griffy to withdraw and appointed a fourth attorney, Julia Butler, to represent Jackson. Either no record was made of this hearing or no record has been provided to this court as part of the appeal.
On December 17, 2012, Butler moved to withdraw from representation of Jackson. In her motion to withdraw, Butler stated that Jackson had told her that he no longer needed her services and would “represent himself.” Her motion to withdraw also contained a notice to Jackson similar to Griffy's, telling Jackson of his obligation to follow court orders and time limits once she no longer represented him.
On February 15, 2013, the district court held a hearing on Butler's motion to withdraw and Jackson's wish to represent himself. The following is the entire discussion in the record regarding Jackson's decision to represent himself and Butler's withdrawal as counsel:
“MS. BUTLER: ... After the last court date, Mr. Jackson advised me that he no longer needed my services and that he would be representing himself.
I did send Mr. Jackson a copy of the [City's] motion in limine and I did send Mr. Jackson–I made a copy of the DVD of the [traffic] stop and sent that to Mr. Jackson as well.
THE COURT: Mr. Jackson; is that correct, you're going to represent yourself on this?
[MR. JACKSON]: Yes, Your Honor. That is correct.
THE COURT: So you will be ready for a jury trial on Wednesday?
[MR. JACKSON][: Yes, Your Honor.
THE COURT: All right.
With that, Ms. Butler, you may withdraw and submit your voucher at your leisure.”
Later on in the same hearing, the district court heard arguments on the City's motion in limine. The City's motion asked the court to prohibit Jackson from suggesting to the jury that it was withholding a second tape of Jackson's arrest because it did not have a second tape. Jackson told the court that he never said the City had a second tape. The district court granted the City's motion, which Jackson states violated his due process rights.
When Jackson continued to ask questions about the City's motion, the district court said it was done ruling on the motion and that it was Jackson's problem if he did not understand all of the legalities because he had chosen not to work with either attorney he been appointed. Jackson responded that Butler had violated his right to attorney-client privilege. The court responded that it would not rule on that because it was ready to proceed to trial.
On May 2, 2013, the district court sent the parties a letter because Jackson had not requested any transcripts to prepare for trial. The letter stated that Jackson could no longer obtain transcripts and reminded the parties-including Jackson-that “[a]s a pro se defendant, Mr. Jackson is to follow all legal rules and court procedures as attorneys are required. Ms. Butler continues as stand by counsel to answer procedural questions Mr. Jackson may have, however she will not be trying the case for him.” As some point, Butler was apparently appointed as Jackson's standby counsel, but her official appointment to that task is not in the record on appeal.
Before trial, Jackson filed an affidavit that said he had wanted to represent himself only because Butler had told him that if he fired her, the judge would not appoint him a fifth attorney. He also alleged that the district court had not inquired into why he wanted a new attorney and said that it was because Butler had breached the attorney-client privilege and not kept information about this case confidential.
Jackson's affidavit was also intended to support a motion that he had filed before trial—a motion to recuse the judge presiding over the case. He stated that Judge Peggy Kittel was biased against him because his father had once testified against a friend of hers, causing her friend to be disbarred. Jackson also claimed that the judge was biased because he was now representing himself, and he contended the bias was evidenced by her impatience with him throughout the case.
Chief Judge Robert Fairchild denied Jackson's motion to recuse Judge Kittel. In his ruling, Judge Fairchild noted that self-represented defendants are held to the same level of knowledge of the law and the rules of court as an attorney and such litigants cannot be allowed advantages or suffer disadvantages solely because of their status as self-represented. Judge Fairchild noted that he provided information about trials to Jackson that he said the court “routinely gives to self-represented litigants,” and he encouraged Jackson to study the information before his trial. Unfortunately, the information Fairchild provided to Jackson has not been included in the record on appeal.
At trial, the jury convicted Jackson of misdemeanor driving under the influence of alcohol for the second time, misdemeanor driving on a suspended license for the second time, and driving so slowly as to impede traffic. At a motion hearing before sentencing, Jackson asked the court if he could have an attorney present at sentencing. The district court told Jackson that he could not because he had elected to proceed at trial without one, stating, “You already waived your right to an attorney.” Jackson responded that he did not know how the sentencing process worked. The court told him, “Well, that's unfortunate because you have already waived your right to an attorney. You requested to proceed pro se, so that's what we're going to do.” There is no record that Butler was acting as his standby counsel after the jury trial ended or that she was present at the time of Jackson's sentencing.
Before the hearing on Jackson's motion for appointment of new counsel concluded, Jackson told the court that he was only representing himself because he felt that he had to. He said that he wanted another attorney after Butler and that he believed he had requested one. Jackson said he had asked Butler for help and that she told him she could not or did not want to help him. He told the court that he was on medication, in pain, and that he wanted to do the trial over with an attorney because he did not believe that he had been able to properly represent himself.
The district court explained to Jackson that it had appointed two attorneys for him that it held in high regard: Griffy and Butler. She noted that Jackson had been dissatisfied with the services of both attorney and the court could not keep appointing him new attorneys because he was not happy with them. The court further explained that it had retain Butler as standby counsel to assist him and observed that he had not relied on Butler very much during the jury trial. The court told Jackson he had chosen to represent himself and that he could not now ask for another appointed attorney simply because he did not like the results of his trial. Jackson tried to explain why he wanted new counsel, but the court ended the hearing.
Jackson was sentenced to a controlling sentence of 180 days in jail but was told he would be eligible to be paroled from that sentence after 14 days, with 18 months of probation to follow. He was ordered to pay $1,180 in fines, as well as other court costs. Jackson appealed to this court, arguing that his right to counsel was violated because he had not intelligently or knowingly waived it.
Analysis
Jackson's basic contention on appeal is that the district court violated his Sixth Amendment right to counsel. In addition, Jackson makes a related claim that the district court failed to inquire into the nature of his conflict with his last court-appointed counsel, Butler, and failed to appoint conflict-free counsel.
The Sixth Amendment right to counsel is multifaceted-it contains within it multiple rights, some of which on occasion appear to be in conflict with each other. For instance, it guarantees criminal defendants the representation of an attorney if they are charged with a felony or if they are charged with a misdemeanor and face incarceration, and it promises them that such representation will be competent and effective. See State v. McCormick, 37 Kan.App.2d 828, 836–40, 159 P.3d 194, rev. denied 284 Kan. 949 (2007); accord State v. Bannon, 45 Kan.App.2d 1077, 1086, 257 P.3d 831 (2011) (explaining that the Sixth Amendment right to counsel applies in misdemeanor proceedings such as Jackson's where the defendant faces jail time), rev. denied 293 Kan. 1108 (2012). But the Sixth Amendment also guarantees defendants the right to represent themselves if they so choose after making a knowing and intelligent waiver of the right to counsel. McCormick, 37 Kan.App., 2d at 839.
Because the right of self-representation is frequently at odds with the right to an attorney, courts adopt a presumption against the waiver of the right to counsel. 37 Kan.App.2d at 839. Accordingly, one waives the right to represent oneself by not asserting the right, but one waives the right to counsel only through a knowing and intelligent waiver. State v. Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006), modified on other grounds in State v. Brown, 300 Kan. 565, 576–78, 331 P.3d 797 (2014) (Brown explaining that a court's duty to inquire into defendant's conflict with counsel does not decay simply because defendant does not repeatedly mention it, abrogating the distinction drawn in Vann). Generally, the extent of the right to the assistance of counsel is a legal question over which this court exercises unlimited review. State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010).
Jackson argues that the district court violated his Sixth Amendment right to counsel in two ways: (1) It did not ensure that he intelligently and knowingly waived his right to be represented by counsel; and (2) it did not inquire into the nature of the conflict Jackson had with his counsel, Butler, once he announced he had a conflict with her.
Jackson further contends that, although he waived his right to counsel before his jury trial, his waiver was not knowing and intelligent. Kansas courts have developed a three-step framework for determining whether a defendant knowingly and intelligently waived the right to counsel. State v. Miller, 44 Kan.App.2d 438, 441, 237 P.3d 1254 (2010).
First, the court should advise the defendant that they have the right to an attorney and that an attorney will be appointed if the defendant cannot afford to hire one. Second, the court should ensure that the defendant possesses the capacity and intelligence to appreciate the consequences of waiving the right to counsel. Third, the court should advise the defendant about the nature of the charges and the proceedings, the range of punishments the defendant faces if convicted, and all of the facts necessary to a broad understanding of the case. 44 Kan.App.2d at 441 ; State v. Mixon, 27 Kan.App.2d 49, 51, 998 P.2d 519, rev. denied 269 Kan. 938 (2000).
Further, the defendant should be informed of the dangers and disadvantages of self-representation so that the defendant makes the choice to proceed without counsel with his or her eyes open. Jones, 290 Kan. at 376 ; Vann, 280 Kan. 782, Syl. ¶ 3 ; see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This court should consider the facts and circumstances of each case when determining whether a defendant's waiver of the right to counsel was knowing and intelligent. McCormick 37 Kan.App.2d 828, Syl. ¶ 5.
Here, Jackson notes that he was missing key information when he waived his right to be represented by counsel. Under the first step of the waiver analysis, this court looks to see whether Jackson knew of his right to have an attorney represent him and of his right to have an attorney appointed if he could not afford to hire one. See Miller, 44 Kan.App.2d at 441 ; Mixon, 27 Kan.App.2d at 51. Though the district court did not tell Jackson that he had these rights, the circumstances of this case demonstrate that he was aware of them. Because Jackson requested and received multiple appointed attorneys, he must have known that he could have an appointed attorney if he requested one; and, in fact, he requested one for sentencing at the motion hearing held before sentencing.
Under the second step of the waiver analysis, this court examines whether Jackson possessed the capacity to understand the consequences of waiving the right to counsel. See Miller, 44 Kan.App.2d at 441 ; Mixon, 27 Kan.App.2d at 51. Nothing on the record suggests that the district court made this inquiry as it should have. Further, at the motion hearing before sentencing, Jackson made some statements that cast doubt on his capacity to represent himself. He mentioned that he was ill, on medication, and in pain. It is unclear to what extent Jackson's illness, medication, and pain impacted his capacity to proceed pro se, and the court made no inquiry into Jackson's capacity before it allowed him to represent himself at sentencing and also failed to inquire as to why he wanted new counsel prior to the trial, despite the affidavit he filed.
Under the third step of the waiver analysis, the district court needed to inform Jackson about the nature of the charges and the proceedings, the range of punishments he faced if convicted, and the facts he needed to know to understand the case. See Miller, 44 Kan.App.2d at 441 ; Mixon, 27 Kan.App.2d at 51. The district court did not do this. It accepted his waiver without explaining any of the possible penalties Jackson faced or giving him any insight into how the proceedings would unfold. Instead, it immediately began argument on the City's motion in limine. The district court, therefore, did not adequately counsel Jackson under the required third step.
Adding to these problems is the fact that nothing in the record indicates that Jackson was aware of the dangers or pitfalls of self-representation. See Jones, 290 Kan. at 376 ; Vann, 280 Kan. 782, Syl. ¶ 3. Judge Kittel did not tell Jackson that he would be held to the same standards as an attorney or that the court would not assist him as he tried the case before he made the choice to represent himself. Although Chief Judge Fairchild apparently discussed self-representation warnings at the hearing for change of judge and attached a copy to the order denying the motion, there is likewise nothing in the record to verify that Jackson ever read or understood the standard form warning to self-represented litigants that Chief Judge Fairchild had sent out. In any event, the trial judge had an independent duty to Jackson to provide him with the information he needed to make a knowing and intelligent waiver of his right to counsel. There is simply no record showing this was done here.
Still, the City argues that the circumstances of the case show that Jackson's waiver was knowing and intelligent because: (1) Butler's motion to withdraw contained a notice to Jackson that told him he had to comply with all orders of the court; (2) Butler was appointed as standby counsel; and (3) Judge Kittel sent a letter to Jackson that told him he would have to comply with all legal rules and procedures.
The City is correct to a certain extent. The facts that it points to do indicate that Jackson had some information about self-representation, but the City fails to demonstrate that Jackson's decision to waive his right to be represented by an attorney was knowing and intelligent at the time he made it. This is true for three reasons.
First, while Butler's motion to withdraw did give Jackson a rather generic warning telling him that he had to comply with certain court rules, the only specific it mentioned was that he had to comply with them in respect to time limitations. The motion and warning did not give any other specifics to alert Jackson that he would be bound in all other respects by court rules or the rules of evidence. This kind of plain vanilla boilerplate from withdrawing counsel is inadequate to support a finding that Jackson knew of the dangers of self-representation.
Second, while Butler was appointed as standby counsel, it is unclear when this occurred; her appointment in this role was not made at the time she was allowed to withdraw as Jackson's trial counsel nor is it shown in the record provided to this court. All this court is able to discern is that Butler appeared as standby counsel at the jury trial, but not afterward. Though standby counsel can mitigate many risks of an unfair trial, it does not appear that standby counsel alone is sufficient to mitigate the effects of an otherwise deficient waiver. See, e.g., Mixon, 27 Kan.App.2d at 52 (finding that standby counsel and discussion with the defendant about the pitfalls of proceeding pro se combined to make the defendant's waiver of his right to an attorney sufficient).
Third, while Judge Kittel did send Jackson a letter explaining to him that he would be required to follow all legal rules and procedures, she did this after he had already waived his right to be represented by an attorney. Specifically, Jackson said he wished to represent himself at a hearing on February 15, 2013, and the court sent him the letter on May 2, 2013. Jackson needed to know that he would be bound to the rules and procedures before he decided whether to represent himself since the court would not let him change his mind once he had decided.
This court certainly understands the difficulties faced by a busy trial judge in dealing with a mercurial defendant who has already had several attorneys conflict out of defense duties. But, even more than in less contentious cases, this kind of situation places a premium on the judge bending every effort to carefully and thoroughly explain the defendant's right to counsel and the significant disadvantages of self-representation. These standards for judicial colloquy, which are carefully set out by our well-developed Kansas caselaw, should be scrupulously observed by the trial court. Then the court must engage in the admittedly tricky business of balancing the inherently opposed Sixth Amendment rights to counsel and to self-representation in making the court's final decision on appointment of counsel. And, it should go without saying, the necessity of making a thorough record of all these efforts should be of first importance to the trial court. Only in this way can the trial court be certain there will be a full and fair review on appeal of its decision on these basic constitutional rights.
Here, the trial court failed to make adequate inquiries to ensure that Jackson knowingly and intelligently waived his right to have an attorney represent him, and the City failed to show that the circumstances of Jackson's case made the court's failure unremarkable. Because the Kansas Supreme Court has determined that a violation of the defendant's right to counsel is structural error, which alone warrants reversing the district court, Jackson is entitled to a new trial. See Jones, 290 Kan. at 382–83.
In light of the fact that Jackson is entitled to a new trial, the other issues raised on appeal are moot. But Jackson's second claim of error is also worth addressing because the issue could arise again on remand.
Jackson argues that the district court erred by failing to inquire into the nature of his conflict with court-appointed counsel Butler and by failing to appoint conflict-free counsel. The Sixth Amendment guarantees a defendant the right to effective assistance of counsel whenever the liberty of a defendant is threatened, but this right does not guarantee a defendant the right to choose the specific counsel that is appointed. Brown, 300 Kan. at 574–75 ; State v. Miller, 4 Kan.App.2d 68, 72, 602 P.2d 553 (1979) (noting that an accused has a right to effective counsel in misdemeanor cases where the accused faces a deprivation of liberty), rev. denied 227 Kan. 928 (1980). In order to replace one appointed attorney with another, a defendant therefore must show “ ‘justifiable dissatisfaction’ “ with his or her current counsel, which the defendant may do by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication. State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013), superseded on other grounds by statute as stated in State v. De La Torre, 300 Kan. 591, 331 P.3d 815 (2014). It is the defendant's responsibility to make a statement of attorney dissatisfaction to the court. Wells, 297 Kan. at 755.
Once the defendant has alleged dissatisfaction with his or her attorney to the court, the court has a duty to inquire into the nature of the conflict between the defendant and the attorney. Brown, 300 Kan. at 575. Though this duty is often triggered when the defendant files a motion for substitute counsel, the duty may be triggered in other ways. State v. Prado, 299 Kan. 1251, 1258–59, 329 P.3d 473 (2014). Any time the court knows or should know that a defendant is alleging a conflict with his or her attorney, the court has the duty to inquire and the failure to do so is an abuse of the district court's discretion. 299 Kan. 1251, Syl. ¶ 1 ; see State v. Galaviz, 296 Kan. 168, 185, 291 P.3d 62 (2012).
Here, Jackson made repeated attempts to explain to the court why he was dissatisfied with Butler. For instance, during the hearing on Butler's motion to withdraw, Jackson told the court that Butler had violated his attorney-client privilege. Again, in his affidavit accompanying his motion to recuse Judge Kittel, he said that he had wanted to represent himself only because he was told he could not have another attorney and that Butler had violated his confidentiality. At a motion hearing after trial, he told the court that he had asked Butler for help, but that she had refused and that he was only continuing pro se because he felt that he had no other choice. But at no point did the court inquire into the nature of the conflict between Jackson and Butler.
While Jackson's complaints about Butler may have been baseless, as the district court apparently presumed, the district court nonetheless breached its duty when it failed to inquire about the conflict. The trial court is tasked with ensuring that a defendant's Sixth Amendment right to counsel is honored, Vann, 280 Kan. at 789 ; and it can only do so by inquiring into the nature of the conflict between a defendant and counsel whenever it knows or should know that a defendant believes a conflict exists. See Prado, 299 Kan. 1251, Syl.fl.
Because the district court violated Jackson's Sixth Amendment rights by not ensuring that he knowingly and intelligently waived his right to counsel and by not inquiring into the nature of the conflict between Jackson and his counsel, this court must reverse the district court and remand Jackson's case for a new trial.
Reversed and remanded.