Burnham v. State

535 P.3d 301

Michael K. BURNHAM, Appellant

v.STATE of Oklahoma, Appellee.

Case No. F-2021-899

Court of Criminal Appeals of Oklahoma.

Filed: May 4, 2023

APPEARANCES AT TRIAL

MICHAEL K. BURNHAM, PRO SE, KREMLIN, OK 73753

TALLENA C. HART, ASST. DISTRICT ATTORNEY, GARFIELD COUNTY COURTHOUSE, 114 W. BROADWAY, ENID, OK 73701, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

RICKI J. WALTERSCHEID, OKLA. INDIGENT, DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070-0926, COUNSEL FOR APPELLANT

JOHN M. O'CONNOR, OKLA. ATTORNEY GENERAL, THEODORE M. PEEPER, ASST. ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

HUDSON, VICE PRESIDING JUDGE:

¶1 Appellant, Michael K. Burnham, was tried by a jury and convicted of Lewd or Indecent Acts to a Child Under Sixteen, in violation of 21 O.S.Supp.2017, § 1123(A)(2), in the District Court of Garfield County, Case No. CF-2018-596. The jury sentenced Burnham to fifteen years imprisonment. The Honorable Paul K. Woodward, District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury's verdict. Burnham must serve 85% of his sentence before he is parole eligible. 21 O.S.Supp.2015, § 13.1. Judge Woodward also imposed various costs and fees.

¶2 Burnham now appeals and alleges a single proposition of error complaining that he was indigent and unable to hire an attorney and as such, the trial court forced him to proceed pro se at his trial in violation of his right to counsel. U.S. Const. Amend. VI ; Okla. Const. Art. 2, § 20. Burnham's claim raises an issue of whether a defendant's physical ability to work, per se , can be dispositive of the issue of indigence. This case also raises important questions about the district court's need to make a complete record when addressing a defendant's indigent status in relation to the appointment of counsel. For reasons discussed below, we find Burnham's claim has merit. Burnham's judgment and sentence must therefore be reversed and remanded for new trial.

BACKGROUND

¶3 Burnham was charged by Information on December 21, 2018. Attorney John Hodgden filed an entry of appearance in Burnham's case on December 31, 2018. Burnham was taken into custody on January 3, 2019 and was released the next day on bond. Attorney Ron Jones subsequently filed an entry of appearance on May 28, 2019. Both Hodgden and Jones represented Burnham at his preliminary hearing on October 30, 2019.

¶4 On February 18, 2020, attorney Hodgden filed a Motion to Withdraw. Counsel stated therein that "[Burnham] is unable to meet his financial obligations to counsel and [ ] has indicated that he intends to proceed with court-appointed counsel." The motion further averred that Burnham consented to the requested withdrawal. A sworn verification signed by Burnham and attached to Hodgden's motion confirmed Burnham's consent to the withdrawal of Hodgden and Jones and his intent to proceed with court-appointed counsel.

¶5 That same day, Burnham filed an Application for Indigent Representation. The application reflected that Burnham had no money or assets, no income, no family nor friends able to assist him in hiring counsel, and that the funds for his bond had been provided by his mother. Included with Burnham's application was an attestation by Burnham's mother, Cora M. Burnham. Therein, Ms. Burnham stated that she "was able to post [Burnham's] bond and finance the process up to the trial" but she was "no longer able to [ ] afford the ongoing process of a trial." Ms. Burnham explained that she had depleted her finances, including her checking and savings accounts.

¶6 A docket entry reflects that defense counsel's motion to withdraw was denied on March 10, 2020. On March 27, 2020, Hodgden and Jones jointly filed an Amended Motion to Withdraw. As grounds for withdrawal, counsel stated, inter alia , that Burnham intended to proceed to trial "contrary to the advice of counsel." As in the first withdrawal motion, counsel also contended Burnham was "unable to meet his financial obligations to counsel" and noted that Burnham had made a request for court-appointed counsel.

¶7 The trial court granted counsels’ motion to withdraw at a hearing held on June 16, 2020.¹ Burnham acquiesced at the hearing to the release of Hodgden and Jones from his case. Asked if he was going to get another attorney, Burnham advised Judge Woodward that he had applied for a court-appointed attorney. The court cautioned that he could not "guarantee" Burnham would qualify for indigent representation. Burnham acknowledged that he understood. Judge Woodward further inquired whether Burnham knew "what position that puts [him] in[.]" Burnham again stated that he understood. At the conclusion of the hearing, Judge Woodward advised Burnham that he would review his application and "let [him] know at [his] next court appearance[.]" The court then inquired if Burnham had a job. Burnham responded, "No, sir." A written order allowing Hodgden and Jones to withdraw as attorneys of record was entered by the trial court the following day.

¶8 A docket entry reflects that Burnham next appeared before the court on July 15, 2020 for a motion docket. The docket entry tells us that Judge Woodward denied Burnham's application for a court-appointed attorney at this time. A standardized order dated July 15, 2020, attached to Burnham's February 18, 2020 application, confirms the court's ruling. The order bears a check mark on a line next to "Not Indigent. The Application for OIDS Representation is denied." A handwritten notation follows stating, "Does not want to work." Beyond this notation, no record of the July 15, 2020 proceeding was made.

¶9 After the July 15, 2020 order denying Burnham's application for court-appointed counsel, there is a significant gap in the record until the pretrial conference conducted on July 13, 2021.² At this hearing, the following colloquy took place:

COURT: We're here this afternoon in State of Oklahoma versus Michael Burnham. Case number CF-2018-596. The state's represented by Assistant District Attorney Tallena Hart. Mr. Burnham is present in person representing himself --

DEFENDANT: I object. I object.

COURT: I'm going to give you the chance to do that. Okay? Let me get this all set up and then I will let you make your objections. Okay, sir?

Is that fair enough, sir?

DEFENDANT: (No response.)

COURT: Sir, is that fair enough?

DEFENDANT: (No response.)

COURT: I need you to answer me, sir.

DEFENDANT: What happens if I don't? No, that's not fair enough.

COURT: All right.

Mr. Burnham, you and I -- you had filed an application for court-appointed attorney and I turned that down because you told me the reason you were not working is because you didn't want to work.

DEFENDANT: That's not true, sir.

COURT: No, that is true, sir. That's what you told me as the reason that you didn't -- that you were not working --

DEFENDANT: Because I have a mother that needs care.

COURT: -- and I determined that you could work and because you could work, I determined that you are not indigent. So your choice is to proceed to trial without an attorney. I don't think that's a good idea --

DEFENDANT: I think that's against the Constitution's Bill of Rights and the 6th Amendment. Yes, sir, I believe [sic] with you. I agree with you.

COURT: It's not a good idea because an attorney will be very helpful to you in jury selection, and opening statements, questioning witnesses, objecting to questions, closing arguments, jury instructions, any motions that need to be filed, mitigating any damages if you were to be found guilty.

The DA's, they're attorneys. They have all been through trial before. They're going to have a major advantage over you when they get to a trial.

DEFENDANT: It may be nothing but a circus, huh?

COURT: It's going to be -- it's going to be not good for you --

DEFENDANT: And you'll be the ringmaster.

COURT: Sir, I don't appreciate you talking to me like that.

The range of punishment, in this case, is up to 20 years, three to 20 years. So you're looking at a lot of time to do; do you understand that, sir?

DEFENDANT: I understand. I haven't signed over my rights.

COURT: Well, you haven't signed over any of your rights, but we've gone down this and I have denied your request for court-appointed attorney --

DEFENDANT: I know that.

COURT: -- because I believe you can work and get an attorney hired. A court-appointed attorney is for those who don't have the money and can't go out and work and get the money, and I don't believe you fit that qualification. So we're set for trial on August the 16th. Are you ready to proceed with that?

DEFENDANT: No, sir, I'm not.

COURT: Well, you understand we're going to have to get this taken care of?

DEFENDANT: I suggest you appoint me an attorney then.

COURT: We've gone over --

DEFENDANT: We will not proceed without legal representation, sir.

COURT: Jury trial is scheduled August 16th. How much time do you think it will take, Ms. Hart?

¶10 Thereafter, the State provided Burnham with several documents, including copies of the police reports, the forensic interview, the State's witness and exhibit list, and State's requested jury instructions. Burnham advised the trial court that he did not plan to have any witnesses or exhibits. At the conclusion of the hearing, Burnham returned all the documents provided to him to the State.

¶11 At the onset of trial on August 18, 2021, when the trial court inquired if Burnham was ready to proceed, Burnham replied, "No, sir." Asked if "[i]t's the same thing as we've talked about earlier[,]" Burnham nodded his head. Later, during a break amidst voir dire , the following colloquy occurred:

COURT: Mr. Burnham, I just wanted to back up. When we got started, you said you weren't ready and I just want to make sure that the reason you're not ready is because you think I should be appointing you an attorney and I haven't done that, is that --

DEFENDANT: Constitution thinks that, not you.

COURT: Okay.

DEFENDANT: Why are you doing this without the jury here?

COURT:

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