Opinion
112,919.
07-24-2015
STATE of Kansas, Appellee, v. Tammy Joy KENNEDY, Appellant.
Linda K. Howerton, of Wellington, for appellant. Jan is I. Knox, county attorney, and Derek Schmidt, attorney general, for appellee.
Linda K. Howerton, of Wellington, for appellant.
Jan is I. Knox, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal from a jury verdict in Harper County District Court finding Tammy Joy Kennedy guilty of disorderly conduct. Kennedy, who appeared pro se below, argues she did not validly waive her right to counsel. She admits that she voluntarily elected to act pro se throughout her pretrial and trial proceedings, but denies that her waiver of counsel was knowingly and intelligently made. Having reviewed the record, we find she validly waived her right to counsel.
The State of Kansas charged Kennedy with disorderly conduct in violation of K.S.A.2014 Supp. 21–6203(a)(3), a Class C misdemeanor. The case was assigned to a district magistrate judge, the Hon. James R. Biles. The record contains a journal entry of Kennedy's first appearance and arraignment but no transcript. The journal entry contained the following language:
“ARRAIGNMENT: The court reads the charges or explains the substance of the charges to defendant and informs defendant of all constitutional and statutory rights at all stages of proceedings including the right to counsel, to trial by jury, the burden upon the state to prove guilt beyond a reasonable doubt, and of the available pleas. Defendant states that he/she understands the nature of the charges.”
Below this language was a heading, “COUNSEL,” followed by a number of options. But none of those options, set forth below, was checked:
“The defendant asks for a court appointed attorney. The court provides defendant with an affidavit of indigence and after review of the same:
“The court finds that the defendant is entitled to a court appointed attorney and appoints [blank].
“The court finds that the defendant is not entitled to a court appointed attorney.
“The defendant waives counsel by a separate waiver of counsel and after reviewing the same and further inquiry of the defendant the court finds from all evidence and statements that said waiver was knowingly and intelligently made and was voluntary.
“The defendant states the intention to retain private counsel.”
Instead, a blank line was checked and the following was written in: “Pro Se.” Judge Biles signed the journal entry.
Kennedy made a number of pretrial filings, signing each time: “Tammy Joy Kennedy, pro se.” The filings included a discovery request, a motion to dismiss, a request for jury trial, and proposed jury instructions. As part of her request for jury trial, Kennedy asked that the Hon. Larry T. Solomon preside at trial, and the case was assigned to him.
Kennedy's motion to dismiss was heard by Judge Solomon. During arguments on that motion Judge Solomon addressed the appointment of counsel:
“THE COURT: Okay. And just for my own benefit, ma‘am, are you employed?
“MS. KENNEDY: Am I what?
“THE COURT: Are you employed?
“MS. KENNEDY: I had to take that job at Lowe's in Enid because I could not find work in this community here.
“THE COURT: So you work full time?
“MS. KENNEDY: I have been doing part time work until very recently.
“THE COURT: Okay. Has anyone offered you a court appointed attorney?
“MS. KENNEDY: I have worked with an attorney in a jury trial not too long ago with—he was accused of assault and battery with a deadly weapon, and all he did was defend himself in that attack. And I actually worked very closely with the attorneys, and so I think I can handle this.
“THE COURT: Okay. Very good, thank you.
“MS. KENNEDY: I was an investigator on the case and I've been trying to—I've been all over the discovery projects and trying to get as much as I can. I also know I was able to make a complaint with his boss and move to get whether or not he was reprimanded on that and she stopped it. I was not allowed to see if he was ever reprimanded, so ...
“THE COURT: Okay. Very good. Thank you.”
The journal entry denying the motion to dismiss states: “The Court further inquires if defendant wishes to retain legal counsel to represent her or whether she may wish to apply for appointed counsel in this matter. Defendant responds that she believes she is capable of representing herself and does not desire counsel.”
At trial Kennedy frequently asked questions of witnesses or made arguments to which objections were sustained and asked the district court for guidance. She also apologized, noting it was her “first jury trial” and stating, “I am not an attorney.” During her opening statement, in response to the prosecutor's objection that she was becoming argumentative, Kennedy stated: “I do intend on defending myself.”
After the guilty verdict Kennedy retained counsel. Counsel moved unsuccessfully for a change of judge but made no claim that Kennedy's waiver of trial counsel was not valid. The district court imposed a 30–day jail sentence, the maximum possible for a Class C misdemeanor. See K.S.A.2014 Supp. 21–6602(a)(3). Kennedy had a right to counsel because the sentence to be imposed upon her conviction for the charged offense included a term of imprisonment. See State v. Neal, 292 Kan. 625, 633, 258 P.3d 365 (2011) (finding “ ‘[a] person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation’ ”).
When Kennedy appealed, the district court appointed counsel for the appeal, finding Kennedy was financially unable to retain counsel.
Did Kennedy validly waive her right to counsel?
Kennedy argues she was denied her right to counsel under the Sixth Amendment to the United States Constitution because her waiver of that right was not knowing and intelligent.
The validity of a waiver of the right to counsel under the Sixth Amendment is a question of law subject to de novo review. State v.. Jackson, No. 100,281, 2010 WL 1253611, *5 (Kan.App.2010), rev. denied 291 Kan. 916 (2011); see United States v. Vann, 776 F.3d 746, 762 (10th Cir.2015). Kansas courts review trial court findings on waivers of counsel for substantial competent evidence. See State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010) ; Jackson, 2010 WL 1253611, at *5 ; State v. Turner, 239 Kan. 360, 365, 721 P.2d 255 (1986). The state has the burden of showing that an accused was advised of his or her right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made. State v. Daniels, 2 Kan.App.2d 603, 605–06, 586 P.2d 50 (1978).
“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.” State v. Jones, 290 Kan. 373, Syl. ¶ 2, 228 P.3d 394 (2010). Thus Kennedy had a right to proceed pro se, but the district court nonetheless had to ensure the Sixth Amendment right to counsel was honored. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013). To do this, the district court was obliged to “make a thorough inquiry and take all steps necessary to ensure that the right to counsel is protected.” State v. Buckland, 245 Kan. 132, 137, 777 P.2d 745 (1989). “An accused's waiver of the right to counsel may not be presumed from a silent record.” State v. Youngblood, 288 Kan. 659, Syl.¶ 1, 206 P.3d 518 (2009). Here, the record is not silent, yet it does not speak as loudly as we would prefer.
Two critical questions guide our determination of whether Kennedy knowingly and voluntarily waived counsel:
“The evidence in the record must answer two critical questions in order to establish an effective knowing and voluntary waiver of counsel: first, whether the defendant was fully advised and properly informed of his or her right to counsel and second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.” Neal, 292 Kan. 625, Syl. ¶ 5.
See also State v. Miller, 44 Kan.App.2d 438, Syl. ¶ 3, 237 P.3d 1254 (2010) (setting forth a three-part framework for determination of a knowing and intelligent waiver). Our review of the record satisfies us that the essential criteria are met in this case.
In reviewing whether the defendant was fully advised and properly informed of her right to counsel, we start with the journal entry from Kennedy's first appearance and arraignment. It states that Judge Biles advised her of all constitutional and statutory rights at all stages of the proceedings, including the right to counsel; that Kennedy stated that she understood the nature of the charges; and that she elected to proceed pro se. Although we have no transcript of that proceeding, we have no reason to doubt the accuracy of that journal entry, and Kennedy does not allege it is untruthful.
“It has long been the law of this state that a recital of a judgment record as to facts is prima facie sufficient to establish the facts recited and cannot be disregarded without clear and satisfactory proof to the contrary. See Goetz v. Hand, 185 Kan. 788, 347 P.2d 349 (1959), O'Driscoll v. Soper, 19 Kan. 574 (1878).” Turner, 239 Kan. at 366–67.
Subsequently, Judge Solomon inquired at the hearing on Kennedy's motion to dismiss whether Kennedy desired a court-appointed attorney, and received Kennedy's reassurance that she wished to proceed pro se. Kennedy volunteered that she had worked “very closely” with attorneys in a jury trial not long ago, attempted to detail for the court her involvement in that matter; and concluded, “I think I can handle this.” The journal entry denying the motion to dismiss also reflects that Kennedy was informed of her right to counsel and to appointed counsel, stating:
“The Court further inquires if defendant wishes to retain legal counsel to represent her or whether she may wish to apply for appointed counsel in this matter. Defendant responds that she believes she is capable of representing herself and does not desire counsel.”
During trial, Kennedy noted it was her “first jury trial” and stated, “I am not an attorney,” but again affirmed her desire to represent herself by saying during an exchange with the district court, “I do intend on defending myself.”
At sentencing, when Kennedy was represented by counsel, her counsel raised the possibility that the presentence report author may have proposed excessive conditions, in part, because Kennedy had “exercised her right and privilege to try this case herself before a jury,” adding:
“We understand that [Kennedy] did not effectively and efficiently represent herself in that trial. And of course that would be to some extent an inconvenience for the prosecutor and the jury, but it is her right to exercise or to have a jury trial and to have that without counsel, and that's what she did.”
Counsel thus specifically addressed Kennedy's pro se status and her choice to exercise her right to waive counsel, yet he did not argue that Kennedy had not been fully advised or properly informed of her right to counsel or that her waiver of counsel was otherwise invalid.
Further, at sentencing, Judge Solomon asked Kennedy and her counsel whether there was any legal reason why the court should not impose sentence. Kennedy responded that she was the victim in this case, but neither she nor her counsel alleged that her waiver of counsel was invalid for any reason. Certainly, the defendant must have consulted with her attorney prior to imposition of sentence. Had there been any question about the validity of her waiver of counsel, the matter would ordinarily have been raised at that time.
The record thus shows that Kennedy was adequately advised and informed of the right to counsel and the right to appointment of counsel.
Second, we ask whether Kennedy possesses the intelligence and capacity to appreciate the consequences of the waiver. “ ‘[W]hether there was such must depend upon the particular facts and circumstances, including background, experience, and conduct of the accused.’ “ State v. Andrews, 5 Kan.App.2d 678, 679, 623 P.2d 534 (1981). Kennedy does not contend that she lacked either of these traits, and the record includes Kennedy's statement that she had worked a jury trial before with attorneys and understood the nature of trial proceedings, generally. The record reflects multiple clear and well-written motions filed by Kennedy and, as a whole, demonstrates that Kennedy possessed enough intelligence and capacity to appreciate the consequences of her voluntary waiver.
Lastly, the record also shows that Kennedy comprehended the nature of the charges and proceedings in this particular case. Kennedy's comprehension is shown in part by her statement at the first appearance and arraignment that she understood the nature of the charges against her and chose to proceed pro se and more fully by the vigorous and appropriate manner in which she represented herself throughout the pretrial and trial proceedings. She not only filed a discovery request, a motion to dismiss, a request for jury trial, a request for a particular judge to hear the case, and proposed jury instructions, but also produced four witnesses at trial and testified on her own behalf.
Whether an accused knowingly and understandably waived his or her right to counsel after the assistance of counsel was offered depends on the particular facts and circumstances of each case. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Accordingly, we have found it more helpful to compare the record in this case to the criteria required by caselaw than to compare the facts of record in this case to the facts of record in other cases. Nonetheless, we briefly address the cases argued by Kennedy.
Kennedy argues that Daniels, 2 Kan.App.2d at 605–08, relayed general principles concerning a defendant's right to counsel and waiver. We agree and have set forth and have applied those same principles here.
Kennedy contends that the facts in this case are similar to those found insufficient in Andrews, 5 Kan.App.2d at 680. But in Andrews, “the entire record pertaining to defendant's waiver” consisted of the following:
“THE COURT: ... The defendant, Mr. Andrews, previously appeared for arraignment entered a plea of not guilty, and asked that his case be scheduled for trial. The record may show that he is appearing personally, acting in his own defense, having waived his right to counsel. And that the State is represented by Mr. Lorson. Are you ready to proceed Mr. Lorson?
“MR. LORSON: Yes, sir.
“THE COURT: Mr. Andrews, are you familiar with the manner in which a trial of this nature is conducted?
MR. ANDREWS: Yes I am, Your Honor.
“THE COURT: Very well, then I'll not go into an explanation of procedures because I do know too that you've appeared in Court on past cases.” Andrews, 5 Kan.App.2d at 680.
Because no other inquiry into the defendant's waiver of counsel was of record, the State failed to show that defendant's waiver of counsel was knowingly and intelligently made. Andrews, 5 Kan.App.2d at 680.
Here, however, the record reflects repeated advice and inquiry by the court and greater understanding by Kennedy, as we have detailed above. Although the record could have been more fully developed, it is sufficient to establish that the defendant knew what she was doing and made her choice with her eyes open. See State v. Cunningham, 222 Kan. 704, 706, 567 P.2d 879 (1977).
We find that Kennedy was adequately informed of her right to counsel and that upon having been so informed, she made a clear determination not to have counsel represent her before the court. See Neal, 292 Kan. 625, Syl. ¶ 5. Based upon the record, we find her waiver of counsel to be valid, having been voluntarily, knowingly, and intelligently made.
Affirmed.