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Brewer v, State (9/27/2002) ap-1829
Brewer v, State (9/27/2002) ap-1829
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CARL M. BREWER, )
) Court of Appeals No.
A-8029
Appellant, ) Trial
Court Nos. 3KO-94-183 & 203 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1829 September 27, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Donald D. Hopwood,
Judge.
Appearances: Jody Patrick Brion, Anchorage,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Carl M. Brewer appeals the superior courts decision to
revoke his probation. Brewers main contention is that the
superior court improperly denied his request to represent himself
at the revocation hearing and forced him to proceed with a public
defender whom he did not want and who was unprepared to defend
him. But Superior Court Judge Donald D. Hopwood concluded that
Brewers eleventh-hour request for self-representation was a sham,
a tactic aimed at delaying the adjudication.
In Gottschalk v. State1, the Alaska Supreme Court ruled
that a trial judge can deny a last-minute request for counsel
from a defendant who previously announced that he would defend
himself, if the lack of counsel can be attributed to the
defendants own lack of diligence and failure to prepare for
trial. We conclude that Brewers case presents the reverse side
of the same coin: Brewer, who was represented by counsel, did
not assert his right to self-representation until the last
minute. Moreover, Brewer told the trial judge that, if he was
allowed to represent himself, he was not prepared to go forward
with the hearing and he would need a substantial continuance.
Under these circumstances, Judge Hopwood could properly deny
Brewers request for self-representation and make Brewer proceed
with the revocation hearing.
Underlying facts
In early 1995, Carl M. Brewer was convicted
of misdemeanor stalking, misdemeanor assault, and
felony weapons misconduct. He served a prison sentence
and then, on March 19, 1996, he was released on
probation. Brewer was allowed to move to Texas, where
the Texas correctional authorities supervised him.
On March 22, 1999, the Texas authorities
terminated their supervision of Brewer. According to
Brewer, his Texas probation officer told him that his
probation was over that he was completely free.
Because the Texas authorities were no longer
supervising Brewer, the Alaska authorities lost track
of him. But according to Brewers criminal judgement,
he was to remain on probation for another two years
until mid-2001.
Brewer moved back to Alaska. The Alaska
Department of Corrections found out that he was here,
and in early 2001 the Department petitioned the
superior court to revoke Brewers probation. For
purposes of this appeal, the Departments allegations
fall into two groups three allegations of misconduct
in 1996, and a fourth allegation of misconduct in 2000.
In the first group of charges, the Department
alleged that Brewer had committed three violations of
the conditions of his probation in 1996 (i.e., while
Brewer was living in Texas and was being supervised by
the Texas authorities) by committing a new crime
(driving while intoxicated), by consuming alcoholic
beverages, and by using marijuana.
In addition, the Department alleged that
Brewer had violated the conditions of his probation in
2000 (i.e., after the Texas authorities had ended their
supervision of Brewer) by leaving Texas without first
obtaining permission from an Alaska probation officer.
(The Department also brought a fifth charge
against Brewer an allegation that in 2000, while
Brewer was living in Texas, he resisted police officers
who had arrested him for public intoxication. At the
conclusion of the revocation hearing, Judge Hopwood
concluded that the State had failed to prove this
charge. This fifth charge is not at issue in this
appeal.)
Brewer conceded the first group of charges
the charges based on his conduct in 1996. However,
Brewer asserted that his probation should not be
revoked for failing to report his change of residence
in 2000. As explained above, Brewer claimed that when
the Texas authorities ended their supervision of him in
March 1999, they told him that he was no longer on
probation. Brewer therefore claimed that he reasonably
believed that he was no longer obliged to report his
whereabouts to the Alaska authorities.
As described more fully in the next section
of this opinion, Brewer asked Judge Hopwood to delay
the adjudication hearing so that he could obtain
documentary evidence from Texas that would corroborate
his claim that the Texas authorities had told him that
he was being released from all supervision. Judge
Hopwood refused to continue the hearing. However,
Brewer took the stand at the hearing and testified that
the Texas authorities had told him that he was no
longer on probation. Based on Brewers testimony, and
based on the fact that the Alaska Department of
Corrections never assigned a probation officer to
supervise Brewer after the Texas authorities notified
the Department that they were no longer going to
supervise Brewer, Judge Hopwood concluded that Brewer
had reasonably believed that he was no longer obliged
to comply with the reporting requirements of his
probation. Accordingly, Judge Hopwood ruled that the
State had failed to prove the allegation that Brewer
had knowingly failed to obtain the Departments
permission before leaving Texas.
Thus, when Judge Hopwood revoked Brewers
probation, he did so solely on the basis of the three
violations from 1996 that Brewer expressly conceded.
Brewers request to represent himself
On February 15, 2001, Brewer was arraigned in
superior court on the petition to revoke his probation.
He told Judge Hopwood that he wanted an attorney but
could not afford one. Brewer had had a previous
experience with the Public Defender Agency an
experience which, in his words, didnt pan out too good.
Nevertheless, Brewer did not protest when Judge Hopwood
appointed the Public Defender Agency to represent him
in this litigation. Judge Hopwood directed Brewer to
contact the Public Defender as soon as possible, and he
calendared the revocation hearing for the week of April
9, 2001.
For reasons that are not explained in the
record, Brewers revocation hearing was continued until
April 19th. When the parties assembled in court on the
19th, the assistant public defender who was
representing Brewer told Judge Hopwood that there was a
preliminary matter to discuss:
Defense Attorney: I met with Mr. Brewer
earlier today. It appears that he wishes to
represent himself and to not have me involved
with [his] case. ... Id like the court to
inquire of Mr. Brewer whether he wishes to
have me continue ... as counsel ... .
The Court: Okay. Mr. Brewer, what
about this [matter] of having the PD
withdraw? [Are] you going to represent
yourself if they do that?
Brewer: Yes, sir. I dont see no other
choice in this matter. ... Your Honor, [I]
stopped by Mr. Ketschers office 30 minutes
ago to see what he had [prepared] on my
defense, and
To start with, I apologize for [the fact
that] Im not very coherent. Ive been 28
hours without any sleep. I just got done
with a halibut opening, and I was called on
the boat Tuesday [i.e., two days ago] to
remind me of [this] court date. And I asked
my girlfriend to call in for a continuance,
and [Mr. Ketscher] said that [that] was an
impossible thing right now, that I need to be
here, and that because, I guess, you [are]nt
very sympathetic to working fishermen. And
the boat dropped me off at the dock at five
oclock this morning ... and I lost half a
crew share. ... I dont have the money to
buy a lawyer now, after losing that money,
and I just want ...
The Court: So far, Mr. Brewer, [Mr.
Ketscher] has given you good advice. ...
You need the Public Defender since you cant
hire [a private attorney], right?
Brewer: Well, I feel as if I can
represent myself as well as Ive been
represented so far. I just ... walked from
his office to here and got as much
information as hes got in his file
[concerning] my defense. ... I feel as if I
can get just as much if you could give me
some time to make some phone calls 30 more
phone calls, maybe and to see if I can get
the documentation necessary to prove to you
that I was released down in Texas [from all]
parole and probation. ... [Nobody has]
contacted [the people who supervised] me down
there my probation officer, the probation
department, interstate compact. He has one
document that will convict me [sic] of ...
this probation violation thing.
At this point, Judge Hopwood interrupted
Brewer. The judge announced that he was not
willing to delay the revocation hearing
again. And, because Brewer had said that he
was not prepared to go forward with the
hearing, Judge Hopwood told Brewer that he
was not inclined to grant Brewers last-minute
request for self-representation:
The Court: This [hearing was] scheduled
back [at] the arraignment on February 15th.
I [have] granted one continuance already. Im
not granting another one. Were doing it
today. ...
[You are] constantly shifting around
with lawyers. Any [change of lawyers] can be
a way for people to manipulate the system and
buy more time. ... You just told me [that]
youre not ready [to represent] yourself [in
this] adjudication because one, youre tired,
and two, you havent done anything ... to
prepare any defense on your own. So I dont
see how you can possibly represent yourself
today.
Brewer: Well, Im not asking to
represent myself today, Your Honor. Im
asking for some time to prepare some kind of
defense for myself. Only thing we have here
is something that will [be] a sure
conviction. ... Nobody [has] been
contacted; nothings been done in my defense.
... Theres absolutely no documentation from
Texas that I was released [from supervision].
... [Ill] borrow money and fly down there
... myself ... if youll grant me a
continu[ance].
After hearing Brewers request,
Judge Hopwood asked the defense attorney to
give him some background information. The
defense attorney told the judge that he had
met with Brewer five times since the Public
Defender Agency was appointed at the February
15th arraignment. Brewer never mentioned the
possibility of representing himself until a
conversation on April 9th (i.e., ten days
before the present hearing). Even then,
Brewer did not make a firm decision on this
matter. Two days before the hearing, Brewers
girlfriend called the secretary at the Public
Defender Agency to say that Brewer was still
thinking about whether to represent himself.
But it wasnt until the day of the revocation
hearing that Brewer finally told his attorney
that he wished to represent himself.
After hearing this, Judge Hopwood
denied Brewers request to represent himself:
The Court: I see this as a manipulation
of the system[.] ... [This] adjudication
hearing [was] set two months ago, [and] this
is the first time [that] Mr. Brewer raises
the issue. And [there is a] limitation on a
[partys right to request] more time to change
... how his representation will [be handled].
... Im just not inclined to do it. I see it
as manipulation. Im going to deny [it]. The
PD is still in [this case], and Im going to
take evidence today.
On appeal, Brewer argues that Judge
Hopwood abridged his constitutional right to
defend himself. Brewer relies on U.S.
Supreme Court and Alaska cases which
recognize a defendants right to self-
representation2 and which declare that a
court has very limited authority to deny a
defendants request for self-representation
in general, only if the defendant has not
knowingly and intelligently waived the right
to counsel, or if the defendant is incapable
of presenting a rational and coherent case.3
Brewer points out that Judge Hopwood never
questioned whether Brewer was knowingly and
intelligently waiving his right to counsel,
nor did Judge Hopwood ever question Brewers
ability to present a rational and coherent
case.
But Brewers discussion of this
issue does not address the basis of Judge
Hopwoods ruling. Judge Hopwoods decision had
nothing to do with the voluntariness of
Brewers waiver of counsel or Brewers
intellectual or emotional ability to present
a defense on his own. Instead, Judge Hopwood
ruled that Brewer was not entitled to make a
last-minute decision to discharge the Public
Defender Agency and represent himself when
self-representation would inevitably mean a
delay of the proceedings and when this delay
was attributable to Brewers own lack of
diligence in pursuing this matter.
The Alaska Supreme Court faced an
analogous situation in Gottschalk v. State,
602 P.2d 448 (Alaska 1979). The defendant in
Gottschalk was tried twice for larceny. (His
first trial ended in a hung jury.4)
Gottschalk represented himself at his first
trial5, and he apparently was going to
represent himself at his second trial. But
then, on the first day of the renewed trial,
Gottschalk announced his decision to hire an
attorney. Gottschalk asked the trial judge
to delay the trial for four days so that the
new attorney could prepare the case, but the
trial judge refused.6 The judge offered to
allow Gottschalks attorney to enter the case
in mid-trial and take it to completion, but
the newly-hired attorney told the judge that
he could not ethically enter the case unless
the trial was delayed (so that he would have
time to properly prepare). Hearing this, the
judge again refused to stop the trial, and
Gottschalk was ultimately convicted.7
On appeal, Gottschalk argued that
the trial judge had unlawfully abridged his
right to counsel, but the supreme court
disagreed. The court acknowledged that,
several times in the past, it had reversed
criminal convictions when a trial judge
refused to grant a defense attorneys request
for more time to prepare for trial. But the
court concluded that Gottschalks case was
different because those prior cases
involv[ed] circumstances beyond the control
of the requesting party.8 The court declared
that Gottschalks case was governed by a
different rule:
[When] a defendant is financially able to
engage an attorney, he may not use his
neglect in hiring one as a legitimate reason
for delay. United States v. Yamashita, 527
F.2d 954, 955 (9th Cir. 1975); United States
v. McMann, 386 F.2d 611, 618 (2nd Cir. 1967),
cert. denied, 390 U.S. 958, 88 S.Ct. 1045, 19
L.Ed.2d 1153 (1968); Relerford v. United
States, 309 F.2d 706, 708 (9th Cir. 1962).
We acknowledge that a continuance of
several hours or one day may have been
reasonable in this case. However, we cannot
say that the trial courts denial constituted
an abuse of discretion. Any delay would have
seriously inconvenienced the court, an
Anchorage judge temporarily sitting in
Naknek, the prosecutor, and at least one
witness who traveled from Dillingham. While
blind adherence to the requirements of court
calendaring should never be used as an excuse
to deny one accused of a serious crime the
fundamental right to organize his defense,
there is a compelling public interest in the
prompt and orderly disposition of such
matters. Green v. State, 544 P.2d 1018, 1023
(Alaska 1976) (footnote omitted).
We conclude that the seven months
between Gottschalks first and second trials
afforded him more than a reasonable time to
engage an attorney. As he made no effort to
retain counsel during those months,
Gottschalks failure can only be attributed to
his lack of diligence. Under the
circumstances, we must hold that the trial
court acted within its discretion in denying
appellants requests for trial continuances.
Gottschalk, 602 P.2d at 451.
Brewers case is the flip-side of
Gottschalk: Brewer is a defendant who
obtained an attorney at his arraignment and
then, on the day scheduled for his hearing,
announced his desire to represent himself
but only if the trial judge granted him a
continuance. We conclude that the same rule
applies: a trial judge may deny a defendants
last-minute request for self-representation
when granting the request would necessarily
delay the trial and the tardiness of the
request is due to the defendants lack of
diligence in pursuing the issue of self-
representation.
Although this precise issue has
never before been decided in Alaska, we note
that other jurisdictions have upheld a trial
judges authority to deny a defendants last-
minute request for self-representation under
similar circumstances.
For instance, in United States ex
rel. Maldonado v. Denno9, the Second Circuit
confronted a situation where, on the first
day of trial, before jury selection, the
defendant asked the trial judge to allow him
to discharge his attorney and represent
himself.10 The trial judge refused, and the
Second Circuit upheld the trial judges
ruling. The Second Circuit recognized that a
defendants request for self-representation
should normally be granted if made before
trial, but
[o]nce the trial has begun with the defendant
represented by counsel, ... [the defendants]
right ... to discharge his lawyer and to
represent himself is sharply curtailed.
There must be a showing [of a] prejudice to
the legitimate interests of the defendant
[that] overbalances the potential disruption
of proceedings already in progress, with
considerable weight given to the trial judges
assessment of this balance.
Denno, 348 F.2d at 15. Other court decisions
since Denno have echoed this rule.11
In Brewers case, Judge Hopwood
denied Brewers last-minute request for self-
representation expressly because granting the
request would require a delay of the
revocation hearing. Moreover, Brewers sole
claim of prejudice to his interests was that
his public defender had failed to obtain
documentary evidence from Texas that would
corroborate Brewers testimony about what the
Texas probation authorities had told him
(i.e., that he was released from all
supervision in March 1999). But, as
explained above, Judge Hopwood ultimately
accepted the truth of Brewers testimony on
this point even though Brewer had no
corroborating documents. The judge ruled in
Brewers favor on the allegation that Brewer
had knowingly failed to notify the Alaska
authorities before leaving Texas. Brewers
probation was revoked solely on the basis of
the three allegations of misconduct from 1996
that Brewer conceded driving while
intoxicated, consuming alcohol, and using
marijuana.
Thus, Judge Hopwood had a valid
reason for refusing to grant Brewers eleventh-
hour request to represent himself and, in
addition, Brewer can not show that he was
prejudiced by that ruling.12 Accordingly, we
hold that Judge Hopwood did not unlawfully
abridge Brewers right of self-representation.
Brewer argues in the alternative
that Judge Hopwoods refusal to grant him a
continuance constituted an improper
infringement of Brewers right to prepare his
defense (in particular, to gather potentially
exculpatory documentary evidence from Texas).
We reject this characterization of Judge
Hopwoods ruling for the same reasons.
Brewers argument that the State should be estopped from
seeking to revoke his probation based on misconduct
that he committed five years earlier
Brewer argues that the State of Alaska should
have been estopped from petitioning the superior court
to revoke Brewers probation in May 2001 when the
petition was based on misconduct that Brewer committed
in 1996, almost five years before.
Citing our decision in State v. Mouser13,
Brewer argues that probation revocation proceedings
should be governed by the same due process
considerations that require a speedy indictment on
criminal charges. Quoting Mouser, Brewer contends that
we should adopt a speedy petition rule to protect
probationers from the infliction of anxiety ... because
of longstanding charges and to prevent weakening of [a
probationers] case as evidence in the memories of
witnesses grow stale with the passage of time.14
We reject Brewers argument for two reasons.
First, Brewer never raised this contention in
the superior court. Instead, Brewer conceded that the
superior court could properly revoke his probation for
the three acts of misconduct that he committed in 1996.
Second, Brewers argument is moot. Even if we
were to recognize a probationers right to a speedy
revocation petition, similar to a criminal defendants
due process right to a speedy indictment, Brewer would
not be entitled to relief.
As we discussed in Mouser, a defendant who
claims that they were denied a speedy indictment must
prove two things: the absence of a valid reason for
the delay, and resulting prejudice.15 Here, Brewer
made a credible showing that there was no good reason
for the State of Alaskas long delay in petitioning the
superior court to revoke Brewers probation based on
misconduct that he committed in 1996. But Brewer made
absolutely no showing that he was prejudiced by this
delay. In fact, Brewer conceded that he had committed
the three violations of his probation driving while
intoxicated, consuming alcohol, and using marijuana.
For all of these reasons, we reject Brewers
argument that the State was estopped from seeking to
revoke his probation based on his 1996 misconduct.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 602 P.2d 448, 450-51 (Alaska 1979).
2 See Faretta v. California, 422 U.S. 806, 821; 95 S.Ct
2525, 2534; 45 L.Ed.2d 562 (1975); McCracken v. State,
518 P.2d 85, 89, 91 (Alaska 1974).
3 See, e.g., Annas v. State, 726 P.2d 552 (Alaska 1986)
(requiring a knowing and intelligent waiver of the
right to counsel); Adams v. State, 829 P.2d 1201, 1206
(Alaska 1992) (declaring that a knowing and intelligent
decision to waive counsel and represent oneself can be
denied only in the fairly rare circumstances in which
the defendant is unable to present a rational and
coherent defense).
4 See id. at 449.
5 Id. at 449 & n.2.
6 Id. at 450.
7 Id. at 450.
8 Id. at 450.
9 348 F.2d 12 (2nd Cir. 1965).
10See id. at 14.
11See Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990);
Vanisi v. State, 22 P.3d 1164, 1170-71 (Nev. 2001);
Clearwater v. State, 2 P.3d 548, 554 (Wyo. 2000);
People v. Windham, 560 P.2d 1187, 1192 (Cal. 1977);
Schnepp v. State, 554 P.2d 1122, 1124 (Nev. 1976).
12Compare Boggess v. State, 783 P.2d 1173, 1182 (Alaska
App. 1989) (upholding a trial judges refusal to grant a
continuance so that the defendant could switch
attorneys, when the only reason a continuance was
needed was [the defendants] own lack of diligence in
substituting a new attorney and when the defendant
failed to establish that he was prejudiced by the trial
judges refusal to give him extra time).
13 806 P.2d 330 (Alaska App. 1991).
14 Id. at 338, quoting Rutherford v. State, 486 P.2d 946,
947 (Alaska 1971).
15 Mouser, 806 P.2d at 336, citing York v. State, 757 P.2d
68, 71 (Alaska App. 1988).
