Opinion
Court of Appeals No. A-11199 No. 6203
07-01-2015
KENNETH W. HARRY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-08-4160 CI MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge. Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Kenneth W. Harry appeals the superior court's dismissal of his pro se petition for post-conviction relief, asserting that the court failed to properly advise him of the benefits of counsel and the risks of self-representation prior to allowing him to waive counsel and proceed pro se. For the reasons explained here, we conclude that the court failed to conduct an adequate inquiry into Harry's waiver of his right to counsel. We accordingly vacate the court's order dismissing Harry's petition for post-conviction relief and remand for a representation hearing.
Relevant facts and procedural background
Kenneth Harry was convicted of first-degree sexual assault and fourth-degree assault. Harry was represented by counsel at trial and on appeal, although he also filed pro se pleadings as co-counsel.
AS 11.41.410(a)(1); AS 11.41.230(a)(1).
See Harry v. State, 2010 WL 668930 (Alaska App. Feb. 24, 2010) (unpublished).
Sometime after his conviction, Harry filed multiple pro se pleadings in the superior court seeking post-conviction relief. After this Court affirmed Harry's conviction on direct appeal, the superior court converted all of Harry's pro se post-conviction pleadings into an application for post-conviction relief under Criminal Rule 35.1. The court also appointed counsel to represent Harry in his post-conviction proceedings.
See Alaska R. Civ. P. 86(m); Fisher v. State, 315 P.3d 686, 687 (Alaska App. 2013).
Acting pro se, Harry then filed a "Motion to Discharge Court Appointed Counsel and to Proceed Pro Se," in which he asserted that he had not requested appointed counsel and that, although he was not opposed to "standby counsel," he did not want to be "forced into taking an attorney." Harry requested an "expedited representation hearing/oral argument for summary disposition of this case." In the alternative, he stated that he wished to waive his right to counsel.
Harry's appointed counsel also filed a motion asking either for a representation hearing or for the court to permit Harry to proceed pro se. In her accompanying affidavit, she stated, "[Harry] has consistently indicated that he does not want to be represented by counsel in this matter," and she added that, in her opinion, he was capable of communicating issues verbally and in writing. She also attested that Harry had asked her to serve as "standby counsel" and that she had explained that the Public Defender Agency does not represent clients as stand-by counsel. She did not attest that she had advised Harry — much less advised him in any detail — of the benefits of counsel or the risks of self-representation.
Without holding a representation hearing, the superior court granted Harry's counsel's motion to withdraw, finding that Harry had unequivocally waived his right to counsel and "has shown he is capable of raising legal arguments and participating in the court process."
Harry responded by filing another request for a representation hearing. Harry asserted that a representation hearing was needed to explore whether he could receive "co-counsel" status and whether "any further relief may or may not be afforded him on other issues that may be presented." The superior court again denied the requested representation hearing.
Harry did not again request that counsel be appointed. Instead, he represented himself pro se in the post-conviction proceedings. The superior court eventually dismissed Harry's post-conviction application for failure to state a prima facie case for relief.
Harry appealed the dismissal of his post-conviction relief application to this Court and also requested appointment of appellate counsel. Because it appeared from the record that Harry had proceeded pro se in the underlying post-conviction relief proceedings, a single judge of this Court remanded Harry's case to the superior court with instructions to determine whether Harry should have been represented by counsel.
In response, the superior court issued a "Notice of Findings." It acknowledged that this was Harry's first post-conviction relief application and that he was therefore constitutionally entitled to be represented by counsel. But it found that Harry had knowingly and voluntarily waived his right to counsel. The court noted that it had "been assured, through the pleadings of assigned counsel and Mr. Harry's [pro se pleading] that Mr. Harry understood his right to counsel, the benefits thereof, and the risks of self-representation ... ."
On March 23, 2012, after receiving the superior court's "Notice of Findings," this Court (in another single-judge order) granted Harry's motion for court-appointed counsel on appeal and allowed Harry's appeal to proceed. At one point during the pendency of his appeal, Harry sought to proceed pro se, but after the case was remanded for a representation hearing on this issue, Harry chose to continue with counsel.
Why we conclude that the dismissal must be vacated and that Harry's case be remanded for a representation hearing
Under Alaska law, a defendant is entitled to the assistance of counsel in litigating his or her first application for post-conviction relief.
Grinols v. State, 74 P.3d 889, 895 (Alaska 2003).
Defendants who wish to waive their right to counsel and represent themselves in post-conviction proceedings must "unequivocally declare[] [their] intention to appear pro se[.]" The court is then required to conduct a thorough inquiry into the circumstances surrounding that request to ensure that the defendant knowingly waives his or her right to counsel and is competent to proceed pro se. In the course of this inquiry, the court must explain "the advantages of legal representation ... in some detail." Because the right of the accused to be represented by counsel is fundamental, this inquiry should be on the record. Only in the unusual circumstance that "the record as a whole unequivocally demonstrate[s] a full awareness ... of the benefits of counsel and the dangers of self-representation" will this Court uphold a trial court's decision to permit a defendant to proceed pro se without first holding an on-the-record representation hearing.
James v. State, 730 P.2d 811, 814 n.1 (Alaska App. 1987) (quoting the Commentary to 1 ABA Standards for Criminal Justice § 6-3.6, at 6.39-40 (2d ed. 1982)).
McCracken v. State, 518 P.2d 85, 91-92 (Alaska 1974).
Id. at 92.
O'Dell v. Municipality of Anchorage, 576 P.2d 104, 107-08 (Alaska 1978).
Gladden v. State, 110 P.3d 1006, 1010 (Alaska App. 2005) (quoting Evans v. State, 822 P.2d 1370, 1375 (Alaska App. 1991)).
Here, the superior court erred in failing to personally apprise Harry of his right to counsel or to hold a detailed, on-the-record inquiry into whether Harry understood the benefits of counsel and was competent to proceed pro se. The superior court instead relied on Harry's assigned counsel's motion to withdraw and Harry's own filings. But these pleadings did not unequivocally demonstrate that Harry was fully aware of the benefits of counsel and the dangers of self-representation.
Harry's counsel attested that she and Harry had "discussed [Harry's case] by telephone on several occasions" during which Harry had "indicated that he does not want to be represented by counsel[.]" She also stated that Harry had "politely and firmly rejected [her] representation," although he had also asked whether she could serve as standby counsel. Harry's counsel did not attest that she had advised him of any of the benefits of proceeding with counsel (or the risks of self-representation) — nor would an attorney's advisement have been sufficient to ensure that Harry had been fully informed of the benefits of counsel and the costs of proceeding pro se because the court must inquire into whether the defendant understood the attorney's advisement.
See Evans, 822 P.2d at 1374 n.2.
Harry's "Motion to Discharge Court Appointed Counsel and to Proceed Pro Se" likewise did not unequivocally reflect that Harry had been fully apprised of the benefits of counsel and the risks of self-representation. Citing McCracken v. State, Harry stated that he "knowingly and intelligently waives his constitutional right to counsel and makes this choice with 'eyes open.'" But his pleading does not reflect that his waiver was, in fact, knowing and intelligent; it is equally consistent with unthinking recitation of black-letter law.
Accordingly, we cannot say that the record affirmatively demonstrates that Harry understood the benefits of counsel and the risks of proceeding pro se. "While it may be that [Harry was] simply playing a cat and mouse game with the court, it also is possible that a better understanding of the pitfalls of proceeding pro se may [have led] him to choose [appointed counsel]." In this regard, we note that Harry at one point sought to represent himself in this appeal; it was only after this Court required a representation hearing at which Harry was advised in detail of the benefits of counsel and the risks of proceeding pro se that he chose to continue with an attorney.
Id. at 1375 (quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.5(c), at 47 (1984)).
The State argues that Harry is estopped from raising this issue on appeal because of an order issued earlier in this case by a single member of this Court. In that order, dated March 23, 2012, the Court stated that "[b]ased on the superior court's ["Notice of Findings"], ... it appears ... that [Harry] knowingly waived his right to counsel in the superior court litigation."
To the extent that this earlier order could be interpreted as a ruling on the question of whether Harry validly waived his right to counsel in the superior court proceedings, this Court would nevertheless be authorized to re-examine that ruling — and to reverse it — now that we have actually examined the superior court proceedings and have determined that the superior court's finding of a knowing waiver is not supported by the record.
See Bylers Alaska Wilderness Adventures Inc. v. City of Kodiak, 197 P.3d 199, 206-07 (Alaska 2008), and Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska 1979), both holding that a judge may decline to follow an earlier decision in the same case made by another judge at the same level of court, if the latter judge is convinced that the previous ruling was erroneous. --------
Here, we conclude that the superior court's failure to hold an on-the-record inquiry into Harry's request to represent himself, and the court's failure to personally advise Harry of the benefits of counsel and the risks of self-representation, require us to vacate this judgment and remand for a representation hearing.
Conclusion
The superior court's judgment is VACATED and the case REMANDED for proceedings consistent with this opinion. We do not retain jurisdiction.