Opinion
Court of Appeals No. A-10167.
November 18, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-06-02820 CR.
Margi A. Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Lee O. Stenseth was indicted on eight felony drug offenses, including two class A felonies. Stenseth was initially represented by a private attorney, Chadwick McGrady. He then retained another private attorney, Lance Wells. Wells was retained by Lee Stenseth's father, Les Stenseth, to represent his son.
Stenseth's trial began on July 18, 2007. Following a short recess just before jury selection, Wells announced that Stenseth would enter a plea to all counts in the indictment. Superior Court Judge Eric Smith accepted Stenseth's plea, finding that Stenseth had made a knowing, voluntary, and intelligent waiver of his right to a jury trial.
Stenseth's relationship with Wells broke down. On August 2, Stenseth filed a request to have the court appoint counsel for him. He filed two financial statements along with this request. According to those financial statements, Stenseth received a pension of $2088 per month. He had household expenses of $1700 per month and $350 per month in personal expenses. He owned a house worth $80,000 in which he had $15,000 in equity. He claimed he had $2000 in the bank, tools worth $1000, and electronic equipment (TV, stereo, etc.) worth $500.
Stenseth also filed a motion to withdraw his plea, asserting that Wells had been unprepared for trial and thus pressured him into entering a plea and that Wells had a conflict of interest. On August 3, Wells filed a motion to withdraw as counsel, asserting that "the relationship between attorney and client [had] gone spiraling downhill."
On August 10, Judge Smith held a hearing on Wells's motion to withdraw and granted the motion. At the same hearing, Judge Smith considered Stenseth's eligibility for publicly appointed counsel. Stenseth was put under oath, and Judge Smith asked him, "Sir, according to your paperwork here, you're making $24,000 a year, is that right?" Judge Smith also asked Stenseth if he had children or was making child support payments. Finally, he told Stenseth that your "income's still too high for publicly appointed counsel . . . you can file more detailed paperwork . . . and try again, but at this point, you're going to have to be representing yourself."
Judge Smith held a hearing on Stenseth's motion to withdraw his plea on September 13. Stenseth appeared without an attorney. Wells appeared telephonically at the hearing. Wells had previously filed an affidavit in which he set out the efforts he had previously taken in representing Stenseth. In the affidavit, W ells asserted that he had zealously and competently represented Stenseth and that there was no merit to Stenseth's contrary assertions. Stenseth declined to cross-examine Wells. Judge Smith asked Stenseth if he was willing to accept Wells's affidavit as representing Wells's testimony. Stenseth agreed, although he indicated that he was not accepting Wells's assertions "as fact." Stenseth then testified to his version of his interactions with Wells which led to his decision to enter a plea.
At the conclusion of the hearing, Judge Smith denied Stenseth's motion to withdraw his plea, finding that Wells had provided adequate representation. He concluded that Stenseth had merely changed his mind about the decision that he had made.
On October 4, 2007, Stenseth hired attorney Randall Cavanaugh, who represented him during his sentencing.
The Sixth Amendment to the United States Constitution and article I, section 11 of the Alaska Constitution protect the right of any person accused of a crime to have the assistance of counsel for his defense. Before permitting a defendant to represent himself, the court must establish that the defendant is competent to represent himself and that he intelligently, knowingly, and voluntarily waives his right to counsel.
Argersinger v. Hamlin, 407 U.S. 25, 38, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska 1971).
Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988).
Stenseth submitted a financial statement in support of his application for counsel at public expense. According to that statement, Stenseth had retirement income of $2088 per month. He had monthly household expenses of $1700 per month and other expenses of $350 per month. Stenseth had about $15,000 in equity in his house. Although in his financial statement he claimed a bank account of $2000, when he testified under oath to obtain an attorney at public expense, he indicated that his bank account had been wiped out, so that he would not be able to pay for an attorney. In spite of this showing and without further inquiry, Judge Smith summarily ruled that Stenseth made too much money to qualify for counsel at public expense. He told Stenseth that at this point, he was his own attorney. He also told Stenseth that if he wanted to file a motion to withdraw his plea, that he had one month to do it. The actual hearing on Stenseth's motion to withdraw his plea was held about thirty-four days after Stenseth's hearing on his motion to obtain counsel at public expense. Stenseth appeared without counsel, and Judge Smith did not make any inquiry about whether Stenseth had made any effort to obtain an attorney. Judge Smith also allowed Stenseth to represent himself without explaining to Stenseth the benefits of having an attorney represent him and cautioning him of the dangers of self-representation.
We conclude that the record does not show that Stenseth intelligently, knowingly, and voluntarily waived his right to counsel. On this record, it is highly questionable whether Stenseth had the ability to pay the likely cost of private representation. Alaska Criminal Rule 39.1 sets out the procedure for determining a defendant's eligibility for court-appointed counsel. That rule provides that a "defendant is eligible for court-appointed counsel if the court finds that the total financial resources available to the defendant are not sufficient to pay allowable household expenses and the likely cost of private representation through trial."
The rule estimates the likely cost of private representation through trial for a single class A felony to be $20,000. The rule also states that "the court should assume that at least 50 percent of the likely fee must be paid immediately and that the total fee must be paid within four months." Stenseth's affidavit and his testimony suggested that he did not have sufficient resources to pay this fee. Although Stenseth had entered a plea, an attorney embarking on representation that involved trying to withdraw Stenseth's plea would, in all probability, have to investigate the case as thoroughly as if he was going to trial, as well as thoroughly investigate Wells's prior representation.
The record, therefore, does not establish that Stenseth had the financial ability to hire an attorney. It also does not establish that he intelligently, knowingly, and voluntarily waived his right to counsel. We accordingly vacate the decision of the superior court denying Stenseth's motion to withdraw his pleas. The case is remanded to the superior court for further proceedings.
The order of the superior court is VACATED. The case is REMANDED for further proceedings.
I write separately to emphasize the two things that went wrong in this case.
Both of the problems in this case arose when Stenseth sought to withdraw his pleas. Stenseth argued that he had received ineffective assistance from his privately retained attorney — that the attorney had been unprepared to go to trial, and that (for this reason) the attorney had improperly pressured Stenseth to plead guilty to all counts. After Stenseth made these allegations, his attorney asked to withdraw from the case, and the superior court granted this request.
Despite the withdrawal of his attorney, Stenseth still had a constitutional right to the assistance of counsel when pursuing his motion to withdraw his pleas. Stenseth's former attorney had been hired by Stenseth's father, but the father apparently was either unwilling or unable to hire a substitute attorney for Stenseth. For his own part, Stenseth asserted that he was financially unable to retain another private attorney, and he asked the superior court to appoint an attorney to represent him at public expense. At this point, things began to go awry.
Alaska Criminal Rule 39.1 sets forth the rules for determining whether a defendant is eligible for counsel at public expense. The basic test is found in subsection (b)(1) of the rule:
Standard. A defendant is eligible for court-appointed counsel if the court finds that the total financial resources available to the defendant are not sufficient to pay [both the defendant's] allowable household expenses [as defined in subsection (h) of this rule] and the likely cost of private representation through trial [as defined in subsection (d) of this rule].
As described in Judge Coats's lead opinion, Stenseth's income consisted of a pension that paid $2088 each month. Stenseth asserted that his household expenses amounted to $1700 per month, and that he had additional personal expenses of $350 per month. In other words, according to Stenseth's financial affidavit, he had no net income.
Stenseth acknowledged that he owned a house valued at $80,000, but he asserted that his equity in this house was only $15,000.
Under subsection (d)(1) of Criminal Rule 39.1, when a defendant is charged with an unclassified felony or a class A felony (as Stenseth was), the presumptive cost of hiring a private attorney to defend the charge is $20,000. It is true that Stenseth's immediate need was to find an attorney to pursue his motion to withdraw his pleas. But the new attorney would have to study the case in some detail if the attorney was going to prove that Stenseth's former attorney had been ineffective. Moreover, if the superior court allowed Stenseth to withdraw his pleas, the new attorney presumedly would be responsible for representing Stenseth at the ensuing trial. In other words, the presumptive figure of $20,000 appears to be a reasonable estimate of the Stenseth's potential costs for a new attorney.
In sum, if the information in Stenseth's financial affidavit is accurate, it appears that Stenseth met the test for receiving counsel at public expense. In the words of Criminal Rule 39.1(b)(1), it appears that "the total financial resources available to [Stenseth were] not sufficient to pay [both his] allowable household expenses and the likely cost of private representation through trial".
But when the superior court considered Stenseth's request for appointed counsel, the superior court did not go through this analysis. That is, the court did not weigh Stenseth's income and assets against his expenses and the expected cost of a private attorney. Instead, the superior court focused solely on the fact that Stenseth received a pension that paid him $2088 per month.
Stenseth's monthly pension payments equaled an annual income of $25,000. Based on Stenseth's annual income alone, and without examining Stenseth's allowable expenses under subsection (h) of the rule or the expected cost of private counsel as defined in subsection (d) of the rule, the superior court declared that Stenseth's "income [was] too high for publicly appointed counsel".
The superior court was apparently referring to the fact that Stenseth's annual income of $25,000 exceeded the federal poverty guideline for a single-person household in Stenseth's area of the state. (According to the parties, the applicable poverty guideline for single-person households in Palmer at the time of these proceedings was an annual income of slightly more than $13,000.)
It is true that Criminal Rule 39.1 employs the federal poverty guidelines as a criterion for determining a defendant's eligibility for court-appointed counsel, but not in the manner that the superior court employed the guidelines in Stenseth's case.
Under Rule 39.1(f)(3), a defendant is presumptively eligible for court-appointed counsel if (a) the defendant's gross annual income is less than the adjusted federal poverty guideline for the defendant's household size, and (b) the other financial resources available to the defendant ( i.e., cash, non-cash assets, and available credit) total less than 50 percent of the anticipated cost of private counsel as defined in subsection (d)(1) of the rule. In other words, if the defendant's income is lower than the federal poverty guideline, and if the defendant's other available assets total less than half the anticipated cost of counsel, a court can presumptively resolve the issue of court-appointed counsel in the defendant's favor, without weighing the details of the defendant's income and assets against the defendant's allowable expenses and the expected cost of private counsel.
But in Stenseth's case, the superior court stood Rule 39.1(f)(3) on its head. Based on the fact that Stenseth's annual income was more than the applicable federal poverty guideline, the superior court ruled that Stenseth was ineligible for court-appointed counsel. This was error.
Criminal Rule 39.1(f)(3) does not create a presumption that defendants are ineligible for court-appointed counsel if their annual income exceeds the applicable federal poverty guideline. Rather, in such cases, the court must examine the particulars of the defendant's financial situation — weighing the details of the defendant's income and assets against the defendant's allowable expenses and the expected cost of private counsel.
The superior court apparently misread this rule — and, thus, the superior court committed its first error. Then, immediately following this first error, the superior court committed its second error: the court unlawfully abridged Stenseth's right to counsel.
When a defendant is entitled to the assistance of counsel but the defendant does not qualify for counsel at public expense, the court must give the defendant a reasonable opportunity to procure private counsel. But in Stenseth's case, immediately after the superior court ruled that Stenseth was not eligible for court-appointed counsel, the court told Stenseth that he would have to proceed pro se:
The Court: You can file more detailed paperwork, I suppose, and try again [to obtain court-appointed counsel], but at this point, you're going to have to be representing yourself. . . . At this point, you're your own attorney.
During the ensuing litigation of Stenseth's motion to withdraw his pleas, Stenseth represented himself even though he had the right to the assistance of counsel and even though he had never waived that right. The superior court never advised Stenseth of the dangers of self-representation and the benefits of counsel, nor did the court ever ask Stenseth whether he was willing to formally waive his constitutional right to counsel. Instead, the superior court simply directed Stenseth to proceed pro se. This was error.
For these reasons, I concur with my colleagues that the plea-withdrawal proceedings in this case are invalid and the decision of the superior court must be vacated.