State v. Allen

522 P.3d 355

STATE of Kansas, Appellee,

v.Anthony Darryl ALLEN, Appellant.

No. 123,647

Court of Appeals of Kansas.

Opinion filed December 30, 2022.

Adam Sokoloff, of The Sokoloff Law Firm, of Olathe, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hurst, P.J., Malone and Bruns, JJ.

Per Curiam:

A jury convicted Anthony Darryl Allen of two counts of rape and aggravated kidnapping. More than two years before the commencement of his jury trial, the district court granted Allen's request to represent himself. The district court also appointed standby counsel to assist in his defense. Allen continued to represent himself until the second day of trial. At that point, he invoked his right to counsel and standby counsel represented him throughout the remainder of the trial.

On appeal, Allen contends that he did not knowingly and intelligently waive his right to counsel. Although the district court ultimately advised Allen of his rights—including the dangers of self-representation—prior to trial, we find that Allen represented himself during critical stages of this criminal case prior to making a knowing and intelligent waiver of his right to counsel. Thus, we reverse Allen's convictions and we remand this case to the district court for further proceedings.

FACTS

A detailed recitation of the underlying facts is unnecessary based on the limited issue presented on appeal. As such, we will briefly summarize those facts that are material to this appeal. We will then address additional facts as necessary in the Analysis section of our opinion.

On August 2, 2015, Allen was arrested—after a four-hour standoff with the police—at an apartment he shared with T.W. Fortunately, T.W. was able to leave the apartment prior to the standoff and was taken to the hospital to be treated for injuries she had suffered. Two days later, the State charged Allen with one count of the aggravated kidnapping and two counts of rape. Subsequently, the district court appointed legal counsel to represent Allen. Over the course of his criminal case, Allen has been represented by multiple attorneys and has also represented himself at various times.

At a scheduling conference on March 23, 2017, Allen appeared in court with his third appointed counsel. The attorney informed the district court that Allen was refusing to meet with him. Moreover, Allen indicated that he wanted to represent himself because he did not "trust nobody but himself." In response, the prosecutor argued against allowing Allen to represent himself due to the complicated nature of the criminal proceedings as well as the potential sentence. The district court decided to defer ruling on Allen's request for self-representation and ordered that he undergo a competency evaluation. We note that Allen had previously been evaluated and found to be competent to stand trial.

On May 11, 2017, the district court held a hearing addressing several matters. At the outset, the district court indicated that it had reviewed a report from Johnson County Mental Health regarding Allen's competency. After sharing the report with the parties and seeking their input, the district court again found Allen to be competent to stand trial. After it had ruled on the competency issue, the district court turned to other matters.

Unfortunately, the transcript of the May 11th hearing is incomplete because of a malfunction of the recording equipment and only contains the statements made by the district court judge. Nevertheless, it can be gleaned from the portion of the transcript in the record that the district court asked: "All right. Mr. Allen, is that correct—that you would like to represent yourself in this matter?" Even though Allen's response is absent from the transcript, it is reasonable to assume that he answered in the affirmative because the district court then asked: "And you understand the seriousness of the charges against you?" Again, the transcript does not include Allen's response. Regardless, it is clear that the district court granted Allen's request to represent himself, permitted his third appointed counsel to withdraw, and appointed a fourth attorney to serve as his standby counsel.

A few weeks later, the district court permitted Allen's standby counsel to withdraw due to a conflict and appointed a fifth attorney to serve in that capacity. From May 11, 2017, to September 16, 2019, Allen represented himself at various hearings with the assistance of standby counsel. Even though several of these hearings only involved scheduling issues, Allen also represented himself at a competency hearing held on March 23, 2018, and a hearing on a motion to dismiss held on May 22, 2018.

On July 11, 2018, the district court held a hearing at which it asked Allen if he still intended to represent himself at trial. In response, Allen reiterated his intent to proceed pro se. The district court then asked Allen if he had a chance to talk to his standby counsel about the upcoming trial or regarding criminal procedure. Allen stated that he and standby counsel had "talked about it." Standby counsel also informed the district court that he had been visiting with Allen about the case but was allowing him to take the lead. The district court then conducted a comprehensive colloquy with Allen about his decision to represent himself.

Specifically, the district court "highly advise[d]" Allen to permit his standby counsel to serve as his attorney. The district court warned Allen there were "a lot of things about the trial process, about the rules of evidence that may be difficult for [a self-represented defendant] to maneuver." Even so, Allen reiterated that he wished to proceed pro se. Following his affirmation, the district court advised Allen that he could exercise his right to counsel at any point and warned him that his self-representation would be terminated "if you're disrespectful to somebody in court ... or obstruct the trial process." In response, Allen confirmed that he understood.

The district court further advised Allen that he would be bound by the applicable rules of criminal procedure. It also pointed out the "numerous dangers and disadvantage[s]" of self-representation. The district court pointed out that an attorney would be better equipped to handle the various matters that were required to prepare for trial as well as matters that would arise during the jury trial. The district court warned Allen that by representing himself he may inadvertently waive his legal rights and that his ability to prepare for trial could be limited due to his incarceration. In addition, the district court reminded Allen of the potential sentences for each of the charges. Again, Allen stated he understood and confirmed his desire to represent himself.

At a hearing held on August 10, 2018, standby counsel informed the district court that Allen had refused his assistance. Yet again, Allen confirmed that he wanted to continue representing himself. Moreover, standby counsel represented to the district court that he would be prepared for trial. On October 18, 2018, the district court inquired once again about Allen's desire to represent himself at trial. The district court reminded Allen "I have been through the entire list for you as to the reasons why I would suggest that you let [standby counsel] proceed for you. But at any time ... you can request that [he] take over for you."

On December 7, 2018, standby counsel advised the district court that Allen continued to refuse his offers of assistance. Almost six months later, on May 29, 2019, Allen again confirmed his intent to represent himself. Finally, at a pretrial conference held only a few days before trial, the district court attempted once more to convince Allen not to represent himself at trial. The district court reminded Allen that it did not believe that self-representation was in his best interest. The district court also reminded Allen "that at any time you can change your mind" and have standby counsel to "proceed on your behalf." Further, the district court reminded Allen that it "considers it detrimental for you to not to accept or employ counsel to represent yourself; you understand that?" Allen responded, "Yes, your Honor."

A three-day jury trial began on September 16, 2019. Allen initially represented himself with the assistance of standby counsel. However, at the start of the second day of trial, Allen invoked his right to be represented by counsel. As a result, standby counsel represented Allen throughout the remainder of the trial. Ultimately, the jury convicted Allen on each of the charges and the district court sentenced him to a controlling term of 331 months in prison.

ANALYSIS

On appeal, Allen contends that although he repeatedly expressed a desire to represent himself during the underlying proceedings, he did not knowingly and intelligently waive his right to counsel. In particular, Allen points to the hearing on May 11, 2017, at which the district court originally granted his request to proceed pro se and appointed standby counsel to assist him. In response, the State contends that if one looks at the record as a whole rather than simply to a single hearing, it is apparent that Allen knowingly and intelligently waived his right to counsel prior to trial.

The State argues the district court properly advised Allen of his rights at a hearing held on July 11, 2018, as well as at the final pretrial conference held a few days before trial. Based on our review of the record on appeal, we agree with the State that the district court appropriately obtained a knowing and intelligent waiver from Allen prior to trial. Nevertheless, the record also reflects that Allen represented himself at critical stages of the proceedings prior to waiving his right to counsel in the manner prescribed by Kansas law.

The Sixth Amendment guarantees criminal defendants the right to the assistance...