Opinion
Court of Appeals No. A-9588.
May 9, 2007.
Appeal from the District Court, Third Judicial District, Palmer, David L. Zwink, Magistrate, and John W. Wolfe, Judge, Trial Court No. 3PA-05-2098 CR.
Ralph K. Winterrowd 2nd, pro se, Wasilla. Jarom B. Bangerter, Assistant District Attorney, Palmer, Roman J. Kalytiak, District Attorney, Palmer, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ralph K. Winterrowd 2nd was charged with driving a motor vehicle while his license was suspended. He represented himself at trial and was convicted of that offense. On appeal, Winterrowd argues, among other things, that his conviction is invalid because he did not knowingly and intelligently waive his right to counsel. Having reviewed the record, we find no merit to this claim. Winterrowd's other claims either fail on the merits or are inadequately briefed. We therefore affirm his conviction. Facts and proceedings
On August 10, 2005, Palmer Police Officer Peter Steen noticed a blue pickup truck driving behind him on the Parks Highway. He was not on duty, but he was in uniform and driving a marked police vehicle. The pickup stayed behind Officer Steen as he drove through Wasilla to the Glenn Highway and into Palmer. Officer Steen believed the vehicle was following him because it was "matching me turn for turn and for speed the entire time." Officer Steen recognized the vehicle because he had seen photographs of it that were taken during prior stops of the vehicle by the Alaska State Troopers. He called dispatch and asked them to run a check on the license plate number. Dispatch reported that the truck was registered to Winterrowd. Dispatch also reported that Winterrowd's Alaska driver's license was suspended.
Because Officer Steen was off-duty, he contacted Palmer Police Officer Philip Krauss and asked him to conduct the stop. Officer Krauss responded to the scene and pulled Winterrowd over. Winterrowd made a video recording of the contact. When Officer Krauss contacted Winterrowd, he advised him that he had been stopped because his Alaska driver's license was suspended. Winterrowd produced a Chickaloon driver's license. Officer Krauss arrested Winterrowd for driving with a suspended license.
Winterrowd was charged with driving while license suspended. He represented himself at trial, and a jury convicted him of that offense. He appeals.
AS 28.15.291(a)(1).
Why we conclude that Winterrowd was not denied his right to counsel
Winterrowd argues that he was denied his right to counsel at arraignment, trial, and sentencing. He argues that he made "bona fide efforts to obtain Assistance of Counsel and yet [the court] did proceed ignoring [his] constitutionally secured rights, [and] losing any perceive[d] jurisdiction, the trial and sentence was void."
Before permitting a defendant to waive counsel and proceed pro se, a trial judge must explain the advantages of having an attorney in some detail. The record must show that the defendant was advised of the dangers and disadvantages of self-representation and that the defendant had the mental competence to understand those dangers. Moreover, the record must show that the court inquired about the defendant's educational background, experience with criminal trials, and general competence to proceed pro se. If a defendant has the mental competence to understand the court's advisements, but nevertheless refuses to apply for court-appointed counsel or to take reasonable action to hire private counsel, the defendant by his conduct will have knowingly waived his right to counsel. Arraignment
Evans v. State, 822 P.2d 1370, 1375 (Alaska App. 1991).
James v. State, 730 P.2d 811, 813-14 n. 1 (Alaska App. 1987), modified on rehearing, 739 P.2d 1314 (Alaska App. 1987).
Id.
Gladden v. State, 153 P.3d 1028, 1030 n. 4 (Alaska App. 2007).
Winterrowd was arraigned before Magistrate David L. Zwink on August 23, 2005. Magistrate Zwink gave Winterrowd a copy of the complaint and advised him of the charges against him. He then scheduled a pre-trial conference, noting that "[a]ll rights regarding everything are obviously . . . totally reserved."
Magistrate Zwink did not advise Winterrowd of his right to counsel as required by Criminal Rule 5(c), and the record is silent as to whether Winterrowd viewed a video advising him of his rights. Nevertheless, we conclude that any error in failing to advise Winterrowd of his right to counsel at arraignment was harmless. Winterrowd has not alleged that he entered a plea, made admissions, lost defenses, or otherwise was prejudiced because he was not informed of his right to counsel at that stage in the proceedings. And given that Winterrowd in all later proceedings steadfastly refused to hire an attorney or to apply for appointed counsel, it appears clear he would not have asked Magistrate Zwink to appoint an attorney prior to his pre-trial conference even if he had been advised he had that right.
See, e.g., United States v. Owen, 407 F.3d 222, 226-29 (4th Cir. 2005) (assuming, without deciding, that arraignment is a critical stage of criminal proceedings under the Sixth Amendment, but finding that any error in the court's failure to observe the right to counsel was harmless because the defendant did not show prejudice); Remsen v. State, 495 N.E.2d 184, 188 (Ind. 1986) (assuming that defendant's right to counsel was not scrupulously observed at his initial appearance, but finding that any error was harmless because there was no evidence that the prosecution benefited); State v. Bradley, 535 So.2d 1108, 1109 (La.App. 1988) ("Any error in the court's failure to advise a defendant of his right to counsel when he pleads not guilty at arraignment is harmless, because he does not give up, but exercises at that juncture, his right against self-incrimination and his right to a trial."); Johnson v. State, 631 So.2d 185, 188 (Miss. 1994) (quoting Wright v. State, 512 So.2d 679, 681 (Miss. 1987)) (holding that arraignment as practiced in Mississippi is not a critical stage where the presence of counsel is required under the Sixth Amendment, and holding that a denial of counsel at that stage does not constitute reversible error unless it is shown "that the accused experienced some untoward consequence flowing directly from denial of counsel.").
Trial
Winterrowd appeared before District Court Judge John W. Wolfe for a pre-trial conference on September 19, 2005. Judge Wolfe asked Winterrowd if he wanted an attorney, but Winterrowd would not directly answer that question. Judge Wolfe then advised Winterrowd of what an attorney could do for him:
Let me explain what an attorney's job is so you can understand what an attorney could do for you if you had one. An attorney's gone to law school to study law and pass the test to show that he or she is knowledgeable about Alaska and U.S. law. An attorney would discuss this case with you in private and could not reveal anything you said to them unless you wanted them to do so. An attorney would get the police report in this case, investigate the case for you, determine whether there are defenses to the case. They'd file motions on your behalf and could speak for you at all hearings, including a trial. They could also try to negotiate a favorable resolution to the case with the [district attorney] if you wanted them to do so. They could advise you on whether or not you should have a trial, and if there was a trial, they'd make objections for you, make sure no inadmissible or improper evidence was presented. An attorney would present evidence that [would] be favorable to you and question any witness who spoke against you. Even if you thought you wanted to admit these charges at sentencing, an attorney could present favorable information and make argument on your behalf. And because this right [is] so important, if you couldn't afford one, the court would appoint one to represent you.
Following this advisement, Judge Wolfe tried again to ascertain whether Winterrowd wanted an attorney. Winterrowd said he had the money to hire a "counselor at law" — if he could find one. Judge Wolfe also tried to establish if Winterrowd was competent to represent himself by asking Winterrowd about his level of education. Winterrowd refused to answer. Judge Wolfe then advised Winterrowd in more detail of the many disadvantages of a pro se defense.
At trial call, Judge Wolfe again asked Winterrowd if he wanted an attorney. Winterrowd responded that "the only thing that I would even consider is assistance of counsel as secured in the Sixth Amendment, and they don't even exist." Wolfe then explained, in even more detail, the function and advantages of an attorney and the hazards of proceeding without one.
Judge Wolfe also advised Winterrowd of the elements the State would have to prove to convict him of driving with a suspended license, and of the maximum sentence he would face if convicted. He asked Winterrowd if he had tried to hire an attorney. Winterrowd responded: "Why would I want to hire an attorney when they won't sign [my] contract[.]" Winterrowd insisted he could afford an attorney, and he refused to apply for court-appointed counsel. Judge Wolfe warned Winterrowd that if he did not protect his right to an attorney by either hiring one or applying for court-appointed counsel, the court would rule that he had by his conduct waived his right to counsel.
Judge Wolfe then tried again to establish Winterrowd's competence to represent himself, but Winterrowd again refused to provide direct answers:
Court: Can you tell me . . . what level of education you have? Do you have formal education?
Winterrowd: It's none of your business. . . .
. . . .
Court: Have you participated in any criminal trials?
Winterrowd: I've seen enough of the kangaroo courts in here.
Court: Okay. Have you ever represented yourself?
Winterrowd: Absolutely never. I can't represent myself, it's illegal and unlawful, and I am myself.
Court: Are you under the influence of any alcohol or drugs today?
Winterrowd: I don't know, I'm not, are you?
Judge Wolfe ruled that Winterrowd understood his right to counsel and the dangers of proceeding pro se, that he was competent to waive his right to counsel and minimally competent to represent himself at trial, and that he had, by his conduct, waived his right to counsel. He then asked Winterrowd if he wanted a continuance so he could hire an attorney. Winterrowd reiterated that he would hire an attorney if he could find one who would sign his contract.
At trial, Winterrowd asserted several times that he had been forced to represent himself because no attorney would sign his contract. But he said nothing to suggest that he had changed the position he took pre-trial and that he was now willing to take realistic steps to hire an attorney or to apply for an attorney at public expense. In this respect, Winterrowd's case is reminiscent of Gladden v. State, where we held that the defendant had waived his right to counsel by insisting on an attorney who would sign a similar contract, while conceding he knew no attorney would sign such a contract.
153 P.3d 1028 (Alaska App. 2007).
Id. at 1031-32.
We agree with Judge Wolfe's assessment that Winterrowd made a competent and informed decision to represent himself. He refused to take realistic steps to hire an attorney even though he was repeatedly admonished about the benefits of counsel and the hazards of proceeding without one. We also agree that Winterrowd was at least minimally competent to represent himself. His case was not complicated, and he has not asserted that he had any difficulty understanding the court's advisements. Sentencing
See O'Dell v. Anchorage, 576 P.2d 104, 108 (Alaska 1978).
Winterrowd also argues that he was denied his right to counsel at sentencing because Judge Wolfe did not ask him if he wanted counsel in that proceeding. Winterrowd did not raise this claim below, so he must show plain error.
See Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978) (citing Alaska R. Crim. P. 47(b)).
Alaska courts have not addressed whether a valid waiver of counsel at trial remains in effect at later proceedings, or whether the court must obtain a separate waiver at each proceeding. But in Gladden we noted that "the weight of authority in other jurisdictions is that a valid waiver remains in effect unless the defendant explicitly revokes it or there is a change of circumstance that gives the court reason to renew its inquiry." Winterrowd has not alleged, nor does the record show, that there was a change of circumstance that gave Judge Wolfe reason to renew his inquiry at sentencing. Winterrowd therefore has not shown plain error.
153 P.3d at 1032 n. 12.
Winterrowd's other claims
Winterrowd asserts that a person with a social security number is a "citizen of the United States" with no constitutionally secured rights. He claims that he does not fall into this category — that he is instead an "American citizen." Furthermore, he argues that his citizenship should have been an issue for the jury.
Although Winterrowd plainly considers this distinction significant in his case, it is not. A jury finding that Winterrowd was an American citizen, rather than a United States citizen, would not have affected the outcome of his case. The pertinent question for the jury was whether Winterrowd was driving in Alaska at a time when his Alaska driver's license was suspended or revoked.
Cf. Busby v. State, 40 P.3d 807, 815-16 (Alaska App. 2002).
Winterrowd argues that there are no attorneys properly licensed to practice law in Alaska. We previously rejected that claim in Crane v. State. He also appears to argue that the supreme court violated the Alaska Constitution by enacting Criminal Rules 5 and 5.1, a claim we rejected in Gladden.
118 P.3d 1084 (Alaska App. 2005).
Winterrowd argues that the allegation that his license was suspended was not supported by probable cause. But the officer's affidavit in support of the complaint alleges that Officer Steen observed Winterrowd driving at a time he knew Winterrowd's license was suspended. Those facts support a finding of probable cause. Furthermore, at trial the jury was instructed that it could not convict Winterrowd unless it found that his license was suspended.
Winterrowd also argues that the jury never determined that he drove on a "highway or vehicular way or area." But the jury was instructed that driving on a "highway or vehicular way or area" was an essential element of the offense of driving with a suspended license. Moreover, there was evidence to support the jury's finding on this element: Officer Steen testified that he observed Winterrowd drive on the Parks and Glenn highways at a time when his license was suspended.
Winterrowd argues that his right to discovery under Alaska Criminal Rule 16 was violated because the court quashed his subpoenas and because the State refused to produce documents showing that Officers Steen and Krauss were public officers with police powers. But in district court and on appeal, Winterrowd failed to show that the testimony and documents he sought were material to his defense. The court therefore did not err in quashing his subpoenas and in refusing to compel the State to produce the documents he requested.
Winterrowd also argues that the State violated Rule 16 by not disclosing the police video until the day of trial. But even if the record supported this claim, Winterrowd has not advanced any plausible way in which he was prejudiced. The State did not offer the video into evidence, and Winterrowd had his own video recording of the police contact.
See Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
Winterrowd complains that the judge and prosecutor had a financial interest in the outcome of his case. He also argues that his sentence violated his first amendment rights, was vindictive, and that the court impermissibly relied on facts not proved to the jury. But he does not articulate in any understandable way how the judge and prosecutor had a financial interest in the outcome of his case. Nor does he explain what made his sentence vindictive, how it violated his first amendment rights, or what facts the court impermissibly relied on in sentencing him. These claims are therefore inadequately briefed.
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990).
If Winterrowd intended to raise additional claims, we cannot meaningfully address those claims on the briefing before us.
Conclusion
Winterrowd's conviction is AFFIRMED