Opinion
No. 107,467.
2013-03-22
STATE of Kansas, Appellee, v. Larry Jay COMSTOCK, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Larry Jay Comstock wanted to discharge his court-appointed attorney and appear pro se at his sentencing. The sentencing court refused, and Comstock appeals, asking us to rule that this was structural error. The State contends Comstock did not make an unequivocal request to proceed with self-representation. Our reading of the record leads us to a contrary conclusion. Therefore, we vacate Comstock's sentence and remand for resentencing.
Case history.
After reaching an agreement with the State, Comstock entered no contest pleas to one count of electronic solicitation of a child and three counts of sexual exploitation of a child. A few days before his sentencing hearing Comstock filed a motion to dismiss James Chappas, his court-appointed attorney. The court took up that motion first.
In his motion, Comstock alleged Chappas: (1) failed to contact his possible alibi witnesses; (2) told Comstock to stick to the plea agreement “even though a lot of documentation is missing”; (3) failed to take action when Comstock notified him of cruel and unusual punishment at the Shawnee County Jail and at Larned State Hospital; (4) was confused by the law so Comstock had to show him applicable statutes; and (5) failed to answer Comstock's 23 questions. After giving his list of complaints, Comstock wrote: “Wherefore, movant believes that if this is appropriate representation then movant could represent himself more appropriately.” At the conclusion, Comstock requested that he be allowed to fire his court-appointed counsel.
At the beginning of the hearing on Comstock's motion, Chappas stated, “Well judge, I've talked with Mr. Comstock; and it is his desire to, well, according to the motion he wants to proceed pro se; but it is his desire that I not be associated with the case.”
Shortly after this point, the judge responded to Comstock:
“Mr. Chappas has been your attorney since April. You are post plea. In other words, you are beyond the plea stage at this point; and I would advise you about a couple of things; and first of all there are certain things that you are entitled to have under the Constitution. And that is you are entitled to have court appointed counsel to assist you if you are indigent, and you did receive that. You are also entitled to have competent counsel represent you. There is nothing that you've said to me that would indicate to me that you have not had competent counsel.
“Now, differences in trial strategy does not necessarily mean that you had incompetent counsel or that your counsel has not represented you in the best way he can. There are three things that you are entitled to make choices about in your trial or your criminal matter. You are entitled to decide whether, what to plea, whether it be not guilty or guilty or no contest. You are also entitled to decide whether you want to waive your right to have a jury trial. You are also entitled to choose whether you testify or not testify. But trial strategy and the way that the attorneys proceed in your case is within the purview of your trial attorney, and those decisions are made by your counsel. That you disagree with the approach that your counsel takes doesn't necessarily rise to the level of either an attorney being incompetent or that you need to have new counsel appointed.
“You are, you are post plea. So that we are at the point now of sentencing today. The Court is at a point today where I'm not hearing evidence regarding whether you are guilty or not guilty. You've entered a plea to the first four counts in this case, and the Court has found you guilty.”
After that, the district judge then asked Chappas to talk about his communications with Comstock. Chappas stated that he had done all he could for Comstock since his appointment. He did admit that he had told Comstock that he did not think it was advisable to attempt to withdraw his pleas and they had disagreements over the legal significance of issues in the case. The district judge stated she was affirming her prior decision but before calling in the prosecutor she asked Comstock if there was anything more to be said on the motion. In response, Comstock complained that his aunt had said she had information for his case but Chappas lost her phone number. The judge then addressed Comstock's other motions and Comstock admitted that he did not want to withdraw his pleas at that point. At the end of the hearing the judge granted the State a continuance for sentencing because the parties disagreed upon the meaning of some terms in the plea agreement.
Later, the court imposed consecutive sentences upon Comstock, who was represented by Chappas, that totaled 240 months' imprisonment and imposed a lifetime postrelease supervision provision. Comstock in this appeal raises but one issue. He contends that the district court erred in not allowing him to represent himself at sentencing.
We make a brief review of the law of self-representation.
The United States Supreme Court in Faretta v. California, 422 U.S. 806–20, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), stated:
“The Sixth Amendment does not provide merely that a defense shall be made for the accused: it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation—to make one's own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequence if the defense fails.”
The most recent case concerning the issue of self-representation from our Kansas Supreme Court is State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010).
“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. A knowing and intelligent waiver requires that the defendant be informed of the dangers and disadvantages of self-representation, so that the record will establish that he or she knows what he or she is doing and his or her choice is made with eyes open.” 290 Kan. 373, Syl. ¶ 2.
We find Jones to be compelling in our view of this case. In Jones, the Supreme Court reversed a Court of Appeals ruling that said while it was error for the court to deny Jones the right to self-representation since it was at a preliminary hearing and the defendant went on to have a trial where he was represented by counsel and did not express a desire to represent himself in the trial, any error depriving him of that right was harmless. The Jones court stated specifically: “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless.” 290 Kan. 373, Syl. ¶ 6. If a defendant's right to represent himself or herself is violated, the defendant is entitled to a new trial regardless of whether he or she can demonstrate prejudice.” 290 Kan. 373, Syl. ¶ 6.
In making this ruling, the Jones court pointed out that it was departing from its prior contrary rulings in five different cases. 290 Kan. at 380; see Byrd v. State, 196 Kan. 466, 413 P.2d 61 (1966); State v. Lewis, 195 Kan. 389, 405 P.2d 796 (1965), overruled on other grounds State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974); Tarr v. State, 194 Kan. 798, 402 P.2d 309 (1965); Bergin v. State, 194 Kan. 656, 400 P.2d 978 (1965).
In our view, that ruling from our Supreme Court reveals a clear indication that the right to self-representation in criminal cases in Kansas shall remain invalid.
We take a closer look at what happened in this case.
It appears to us that the district court in this case, when it proceeded with the motion, treated the motion as if the defendant wanted new court-appointed counsel and made inquiries accordingly. This can only be the reason for the extended inquiry the court made concerning the communications between Chappas and Comstock. At no point did the court inquire if Comstock wished to proceed pro se after explaining the pitfalls of representation to Comstock. After all, such a serious choice must be made by defendant with his eyes wide open.
We have already pointed out Chappas stated clearly that Comstock wanted to proceed pro se at the beginning of the hearing. And we listed the statement concerning self-representation by Comstock in his written motion. The rest of the hearing all dealt with the complaints Comstock had about Chappas' performance. We note also that Comstock never asked for a continuance of the sentencing hearing but he wished to proceed on his own.
The United States Supreme Court in Flanagan v. United States, 465 U.S. 259, 268, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), stated denials of Sixth Amendment rights to counsel are not susceptible to interlocutory appeal; they are effectively reviewable on appeal. To reiterate, the Supreme Court in McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), stated that the right is either respected or denied; its deprivation cannot be harmless.
Frankly, from this record, we cannot tell if Comstock intelligently waived his right to counsel because of the lack of questioning on the part of the district court.
We contrast this case with some prior Kansas holdings.
In our view, the facts of this case differ from the cases cited by the parties. In State v. Irving, 231 Kan. 258, 265, 644 P.2d 389 (1982), our Supreme Court stated that the record disclosed that at no time did the defendant request the right to proceed pro se. The defendant did complain on the record as to the performance of his attorney and his attorney, asked leave to withdraw during the testimony of the final defense witness. The trial court, in its discretion, denied the motion under the circumstances. Contrast that with this case where Comstock filed a motion prior to the sentencing hearing and clearly, through counsel, stated he wanted to proceed pro se.
In State v. Hollins, 9 Kan.App.2d 487, 489, 681 P.2d 687 (1984), our court stated that although he later expressed dissatisfaction with his counsel, the defendant demanded a new attorney, not the right to represent himself By his actions and statements, the defendant waived his right to self-representation by failing to assert it. Those facts are clearly not analogous to the facts of this case, where Comstock filed his motion prior to sentencing and asked that Chappas be discharged and he proceed without his assistance.
We think that once Comstock manifested his desire to proceed pro se, the district court was required to make inquiry to determine whether Comstock was waiving his right to counsel knowledgeably and voluntarily. We think that it was error for the district court to fail to do so. Therefore, we remand this case to the district court after vacating Comstock's sentence.
Upon his return to the district court, if found competent, the court should ask Comstock if he wishes to proceed pro se to sentencing. The court must make inquiries on whether his waiver of counsel is knowledgeably and voluntarily done. At that point, the case may proceed to sentencing with Comstock either represented by counsel or representing himself, as the circumstances require.
Sentence vacated and remanded with directions.
BRUNS, J., dissenting.
I must respectfully dissent. Although the majority has accurately stated the law, I do not find in the record a clear and unequivocal expression by Comstock that he desired to proceed pro se at his sentencing. See State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010). (“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.”). “Because the right to proceed pro se is at odds with the right to be represented by counsel, the courts must indulge every reasonable presumption against waiver of the right to counsel and will not presume acquiescence in the loss of fundamental rights, i.e., the right to counsel.” State v. Vann, 280 Kan. 782, Syl. ¶ 4, 127 P.3d 307 (2006). Thus, under the circumstances presented, I would affirm the sentence.