State v. Sullivan

640 S.W.3d 149

STATE of Missouri, Respondent,

v.Eugene Mark SULLIVAN, Jr., Appellant.

No. ED 109305

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: February 15, 2022

Eugene M. Sullivan, Jr., Pro Se, 10914 Mulberry Drive, Foristell, Mo. 63348, for appellant.

Keith P. Freie, Jessica Geiger, Co-Counsel, 104 W. Main, Suite E, Warrenton, Mo. 63383, for respondent.

Angela T. Quigless, Judge

Defendant Eugene Mark Sullivan, Jr., appeals from his conviction for resisting a lawful detention. Defendant accurately contends the trial court erred in allowing him to represent himself without making an adequate determination on the record that his waiver of counsel was knowingly and intelligently made. We therefore reverse and remand.

Factual and Procedural Background

The State charged Defendant with one count of resisting a lawful detention under Section 575.150 RSMo. The Public Defender's Office denied Defendant's request for legal assistance. Defendant then signed a waiver of right to counsel form. A period of discovery and continuances ensued, as well as transfer of the case to circuit court, per Defendant's request.

The circuit court held a pre-trial conference, five weeks prior to the trial date. Defendant appeared in person, without counsel. The docket sheet entry from the conference notes that "Perils of Self-representation" were given. There is no transcript from that conference, and the record does not indicate that the conference was recorded or transcribed.

Defendant appeared on the day of trial, without counsel. Upon the circuit court calling the case, the following exchange took place between the court and Defendant, regarding Defendant representing himself at trial:

THE COURT: This is Friday February 21^st, and the case is State versus Eugene Sullivan.... State is present by Mr. Freie. Defendant is present unrepresented. Mr. Sullivan, I have, I think, talked to you several times about representing yourself, and you have maintained that you wanted to do that. Is that still your intent today?

MR. SULLIVAN: Your honor, I did not qualify for public defender, so, unfortunately, I don't have a choice. I would much rather be represented, but I did not qualify, and I can't afford an attorney.

THE COURT: Will, I think you did in the past fill out a waiver of counsel. Like I said, I am just saying is that what you are still intending to do, proceed to trial?

MR. SULLIVAN: If I have no other choice, yes, Your Honor.

THE COURT: Well, the public defender did turn you down. You do have the option of hiring an attorney, and the third option is representing yourself.

MR. SULLIVAN: Yes, Your Honor.

THE COURT: Are you doing the third option?

MR. SULLIVAN: Yes, Your Honor.

THE COURT: Okay. Very good....

Trial proceeded, and the jury found Defendant guilty as charged. The circuit court sentenced Defendant to thirty days in jail. This appeal follows.¹

Discussion

The Sixth Amendment to the United States Constitution guarantees that a person brought to trial must be afforded the right to the assistance of counsel before they can be validly convicted and punished by imprisonment.² Faretta v. California , 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; State v. Davis , 507 S.W.3d 41, 44 (Mo. App. E.D. 2016). The constitutional right to counsel extends to all offenses for which imprisonment may be imposed, including misdemeanors such as charged in this case. City of St. Peters v. Hodak , 125 S.W.3d 892, 894 (Mo. App. E.D. 2004) (citing Argersinger v. Hamlin , 407 U.S. 25, 39, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ). The constitutional right to counsel implicitly embodies a correlative right of the accused to forego counsel and represent him or herself pro se. State v. Davis , 580 S.W.3d 26, 32 (Mo. App. E.D. 2019) ; State v. Murray , 469 S.W.3d 921, 926 (Mo. App. E.D. 2015) (both citing Faretta , 422 U.S. at 814, 95 S.Ct. 2525 ). For a waiver of counsel to be effective, however, due process requires that the waiver be made knowingly and intelligently. State v. Hunter , 840 S.W.2d 850, 857 (Mo. banc 1992) (citing Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ). "Absent a knowing and intelligent waiver, no person may be imprisoned unless he was represented by counsel at trial." State v. Watson , 687 S.W.2d 667, 669 (Mo. App. E.D. 1985) (citing Argersinger , 407 U.S. at 37, 92 S.Ct. 2006 ). An accused who manages their own defense relinquishes many of the traditional benefits associated with the right to counsel. State v. Leonard , 490 S.W.3d 730, 739 (Mo. App. W.D. 2016) (quoting Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ). For this reason, in order for an accused to represent themselves, the accused must knowingly and intelligently forgo those relinquished benefits. Id.

A trial court has a duty to determine whether a knowing and intelligent waiver has been made. Watson , 687 S.W.2d at 669 (citing Von Moltke v. Gillies , 332 U.S. 708, 723-24, 68 S.Ct. 316, 92 L.Ed. 309 (1948) ; State v. Wilson , 816 S.W.2d 301, 305-6 (Mo. App. S.D. 1991). " ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake-is without counsel.’ " Watson , 687 S.W.2d at 669 (quoting Von Moltke , 332 U.S. at 723-24, 68 S.Ct. 316 )). " ‘This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ " Id. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, the trial court should conduct a "penetrating and comprehensive examination," and must investigate as long and as thoroughly as the circumstances of the case before the court demand. Id. ; accord , Hodak , at 894 ; State v. Davis , 934 S.W.2d 331, 334 (Mo. App. E.D. 1996). The fact that an accused may tell the trial court that they are informed of their right to counsel and desires to waive this right does not automatically end the court's responsibility. Watson , 687 S.W.2d at 669 (quoting Von Moltke , 332 U.S. at 723-24, 68 S.Ct. 316 ).

Missouri has two requirements that must be satisfied before the trial court can conclude that an accused has effectively waived the right to counsel. State v. Ndon , 583 S.W.3d 145, 154 (Mo. App. W.D. 2019). First, the accused must be given the opportunity to sign the written waiver-of-counsel form mandated by Section 600.051 RSMo. Id. Second, there must be a thorough evidentiary hearing that establishes that the accused understands exactly what rights and privileges they are waiving, as well as the dangers associated with waiving constitutional rights. Id.

No rigid procedure or specific litany is required for apprising an accused of the difficulty and dangers of self-representation. Id. Nonetheless, the accused should be apprised in terms sufficient to enable him to make an intelligent decision. Davis , 934 S.W.2d at 334. Although an accused need not themselves have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, the accused should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that the accused knows what they are doing and that their choice is made with "eyes open." Leonard , 490 S.W.3d at 739 (quoting Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ).

Prior decisions from this Court provide guidance as to areas of inquiry that the trial court should explore, to ensure an accused's waiver is knowing and intelligent. Murray , 469 S.W.3d at 927. In Missouri, an accused's waiver is not knowing and intelligent unless the court timely informs him "as to the nature of the charges against him, potential sentences if convicted of the offenses, potential defenses he can offer, the nature of the trial proceedings ... and the dangers of proceeding pro se. " State v. Black , 223 S.W.3d 149, 154 (Mo. banc 2007). The trial court should inquire into the accused's capacity to make an intelligent decision and the accused's knowledge of their own situation. Davis , 934 S.W.2d at 334 (Mo. App. E.D. 1996) ; Murray , 469 S.W.3d at 927. The trial court should advise the accused of the dangers and disadvantages of self-representation. Davis , 934 S.W.2d at 334 ; State v. Wilkerson , 948 S.W.2d 440, 445 (Mo. App. W.D. 1997). The trial court should ensure that the accused understands exactly what rights and privileges they are waiving and the dangers associated with waiving constitutional rights. Murray , 469 S.W.3d at 927. The trial court should make the accused aware that, in spite of their efforts, they cannot afterwards claim inadequacy of representation. Davis , 934 S.W.2d at 334.

Further, and critically here, it is essential that a record be made reflecting that the accused was apprised of the difficulties of self-representation in terms sufficient to enable the accused to intelligently decide which course to follow. Wilson , 816 S.W.2d at 307. The court's duty to the accused is not extinguished merely by the signing of a waiver-of-counsel form. Hodak , 125 S.W.3d at 895. "Because this is a matter of constitutional right, a simple waiver-of-counsel form, without a record of hearing, is insufficient." Id. ; State v. Johnson , 172 S.W.3d 900, 902 (Mo. App. S.D. 2005). The determination that an accused has made a knowledgeable and intelligent waiver of the right to assistance of counsel must be based upon inquiry conducted on the record so there is evidence the accused understood the ramifications of the waiver and that the accused acted knowingly and intelligently in waiving counsel. Hodak , 125 S.W.3d at 894-95 ; Johnson , 172 S.W.3d at 902 ; State v. Schnelle , 924 S.W.2d 292, 298 (Mo. App. W.D. 1996).

The record here is devoid of the trial court's inquiry into Defendant's waiver. The docket sheets from the circuit court show that the "Perils of Self-Representation" were given to Defenda...