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Gladden v. State (4/15/2005) ap-1979
Gladden v. State (4/15/2005) ap-1979
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
DAVID G. GLADDEN, )
) Court of Appeals No. A-8710
Appellant, ) Trial Court No. 3DI-03-57 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
)
Appellee. ) [No. 1979 - April 15, 2005]
)
Appeal from the District Court, Third Judicial District,
Dillingham, Fred Torrisi, Judge.
Appearances: David G. Gladden, pro se, Dillingham. John W.
Wolfe, Assistant District Attorney, Dillingham, Leonard M.
Linton Jr., District Attorney, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
COATS, Chief Judge.
David G. Gladden was charged with driving with a suspended license. At
his arraignment, and in subsequent hearings over the next six months, Gladden declined
to request appointed counsel, instead asserting that he wanted to hire private counsel.
However, despite repeated continuances and warnings that he would have to proceed pro
se if he did not find an attorney by the trial date, Gladden showed up at trial
unrepresented. The district court refused to grant another continuance, and Gladden
proceeded pro se. At trial, Gladden did not testify or present any evidence relevant to the
charge against him. Instead he repeatedly asserted that the district court had no
jurisdiction to try him because he was not represented by an attorney. Gladden was
convicted. On appeal, he claims that his right to counsel was violated because he was
forced to represent himself at trial.
By stubbornly refusing to request appointed counsel or to take the steps
necessary to hire private counsel, Gladden impliedly elected to proceed pro se. However,
the record does not unequivocally show that Gladden knowingly and intelligently waived
his right to counsel. For this reason, we reverse Gladden?s conviction.
Facts and proceedings
On the afternoon of February 4, 2003, Dillingham Police Officer Joshua
Mize saw Gladden driving down Kanakanak Road in Dillingham. From his prior
contacts with Gladden, Officer Mize knew that Gladden?s driver?s license was suspended.
Officer Mize followed Gladden?s vehicle and contacted him in his driveway. When
Officer Mize asked to see Gladden?s driver?s license, Gladden produced an international
driving permit issued in Costa Rica. Gladden admitted that his Alaska driver?s license
was suspended.
Gladden was charged with driving with a suspended license.1 At trial,
Officer Mize testified to the above facts, and the State introduced a certified copy of
Gladden?s driving record, which showed that his license was suspended. Gladden did not
testify or present any evidence relevant to the charge against him. Instead, he repeatedly
objected that the court had no jurisdiction to try him because he was ?without the
assistance of counsel under the Sixth Amendment.? The jury convicted Gladden, and he
appeals.
Was Gladden?s right to counsel violated?
Gladden argues that his conviction is void for lack of jurisdiction because he
had no attorney at trial and did not knowingly and intelligently waive his right to an
attorney. Resolving this claim requires a review of the pre-trial hearings at which the
district court addressed Gladden?s failure to hire an attorney and his refusal to fill out the
forms necessary to qualify for court-appointed counsel.
The relevant pre-trial proceedings
Gladden was arraigned on February 19, 2003, before Magistrate Monte
Brice. Magistrate Brice informed Gladden of the charge against him, recounted the facts
underlying that charge, and told him what penalties he could face if he was convicted.
Magistrate Brice then explained the elements the State had to prove, and informed
Gladden of his various rights, including his right to an attorney. When asked if he
understood those rights, Gladden said he ?didn?t hear them?; he also said that he had no
questions about his rights. Gladden said he could not afford a lawyer, but that he did not
want to apply for court-appointed counsel, and that he would try to ?contract with one.?
Gladden refused to enter a plea, so Magistrate Brice entered a ?not guilty? plea on his
behalf and scheduled a representation hearing for March 17, calendar call for April 15,
and trial for April 21.
At the March 17 hearing, Gladden said he had failed to hire an attorney, and
he gave Magistrate Brice a copy of a proposed contract he had mailed to various
attorneys. Magistrate Brice told Gladden that he could either hire an attorney or request a
public defender, and he scheduled a second representation hearing for March 28.
At the March 28 hearing, Gladden said he still had not found an attorney
willing to sign his contract. Magistrate Brice reminded Gladden that he could apply for
court-appointed counsel, but Gladden declined. Magistrate Brice did not schedule
another representation hearing.
At the April 15 trial call, Gladden told Judge Fred Torrisi that he had not
applied for court-appointed counsel and that he had not found an attorney willing to sign
his contract. Gladden asked Judge Torrisi why no attorney would sign his contract, and
Judge Torrisi told him that he had not read the contract and that he did not get involved in
contracts with private attorneys. Judge Torrisi asked Gladden if he wanted a continuance,
but Gladden did not respond. Judge Torrisi continued trial call until April 21, the
following Monday. On April 17, the court issued a Notice and Order advising Gladden
that he would not receive a continuance based on the fact that no lawyer was willing to
respond to the ?request for assistance of counsel? he had filed with the district court.
At the April 21 trial call, Gladden listed the names of eight attorneys he
claimed he had mailed his contract to, but said none of them had responded. Judge
Torrisi cautioned Gladden that his approach to hiring an attorney seemed ?ill-designed to
actually get a lawyer to represent you,? but he added that Gladden was ?free to do it
however you want.? Gladden did not ask for a continuance, and Judge Torrisi kept the
case on the April 23 trial schedule.
On April 23, Gladden asserted his right to a speedy trial under Rule 45, but
also stated that he had not been able to hire an attorney and was not prepared to go to trial
without one. Judge Torrisi offered to grant Gladden a continuance if he waived his right
to a speedy trial, but said he was not going to delay trial until Gladden found an attorney
who would sign his contract; Judge Torrisi noted that he would not sign Gladden?s
contract if he were an attorney. Gladden continued to insist that he did not understand the
charges against him, and that he could not go to trial without an attorney. Judge Torrisi
urged Gladden to call some lawyers on the telephone because he was ?not going to hear at
the last minute that you don?t have a lawyer because they wouldn?t sign this contract.?
Judge Torrisi waived Gladden?s speedy trial right and continued trial call until August 4.
At the August 4 trial call, Gladden still did not have an attorney. Gladden
acknowledged that he had not called any attorneys, but instead had continued to mail out
his contract. Judge Torrisi continued trial call until August 8 and told Gladden there
would be no more continuances. He admonished Gladden to ?hire somebody the
traditional way or be prepared to do it yourself.? Judge Torrisi also issued a
Memorandum and Order, which read in part:
Since my order of 4/17/03, Mr. Gladden has continued
to file various documents. He has not asked for appointed
counsel, and argues that he can?t retain counsel because no-
one will respond to his certified mailings, which contain a
contract he wants counsel to sign. It seems to me, and I have
said this on the record, that this method of securing counsel is
extremely unlikely to result in his actually obtaining a lawyer,
especially since the contract contains terms relating to the
type of court, official bonds and seals, a ?true Civil
Commission? and other provisions which might seem foreign
and irrelevant to the usual criminal lawyer.
At the August 8 trial call, Gladden had subpoenaed various attorneys,
apparently to question them about their qualifications to provide assistance under the
Sixth Amendment. After allowing Gladden to question one of these attorneys briefly,
Judge Torrisi quashed the subpoenas and excused the witnesses.
On August 11, the first day of trial, Gladden argued that the court had no
jurisdiction to try him because he still had no attorney. Judge Torrisi refused to delay the
trial. The jury convicted Gladden based on Officer Mize?s testimony and a copy of
Gladden?s driving record, which showed that his license was suspended.
Did Gladden knowingly and intelligently waive his right to counsel?
Gladden was charged with a misdemeanor and faced a possible one-year jail
term. Therefore, he was entitled to the assistance of counsel, and his conviction is invalid
unless he knowingly and intelligently waived that right.2 We independently review the
record to determine if a waiver of counsel was knowing and intelligent.3
In James v. State,4 we discussed the type of inquiry that is required before a
court may grant a defendant?s request to represent himself in a criminal case:
Except in the most unusual circumstances, a trial in
which one side is unrepresented by counsel is a farcical effort
to ascertain guilt. Thus, once a defendant has clearly and
unequivocally declared his or her intention to appear pro se,
the trial judge must conduct a through inquiry into the
circumstances surrounding the assertion ... . This inquiry
should be incorporated into the trial record ... and should
include: advising the defendant of the right to counsel and the
importance of having counsel; warning the defendant of the
?dangers and disadvantages of self-representation, so that the
record will establish that ?he knows what he is doing and his
choice is made with eyes open??; and inquiring into the
defendant?s educational background, previous experience
with criminal trials, and general competence ... . [T]he
defendant must possess the mental competence to understand
the dangers
and ramifications of self-representation.[5]
Before permitting a defendant to proceed pro se, the trial judge must explain
the advantages of legal representation in ?some detail.?6 We have cautioned courts
against relying on a general explanation of the right to counsel in lieu of objective
indications that the defendant appreciated what he was giving up by waiving his right to
counsel in that particular case.7 We will excuse an on-record inquiry only if ?the record
as a whole unequivocally demonstrate[s] a full awareness ... of the benefits of counsel and
the dangers of self-representation.?8
None of the required inquiries appears on the record in this case; nor does
the record as a whole unequivocally demonstrate that Gladden was aware of the hazards
of proceeding pro se. Magistrate Brice and Judge Torrisi asked Gladden if he wanted to
apply for a public defender and, when he declined, granted numerous continuances to
give him time to hire private counsel. Gladden viewed the court system arraignment
video, which explains the right to counsel and the benefits of counsel in general terms.
Magistrate Brice also told Gladden at arraignment that he had the right to counsel, and
explained the nature of the charge and the elements the State had to prove. But once it
became clear that Gladden was unlikely to hire an attorney, and after Judge Torrisi
warned Gladden that trial would proceed whether he hired one or not, Judge Torrisi never
explained to Gladden what an attorney could do, warned him of the problems he could
face in defending himself, or asked him if he understood the risks of proceeding pro se.
Nor did Judge Torrisi ask about Gladden?s educational background or his prior
experience with the criminal justice system.
We recognize that this was not a complex case. Gladden was charged with
one misdemeanor offense of driving with a suspended license. The State?s entire case
consisted of a copy of Gladden?s driving record and Officer Mize?s testimony that he had
seen Gladden driving. But our supreme court has required a knowing and intelligent
waiver of counsel even for minor traffic infractions, while recognizing that the duty of
inquiry may be minimal in such cases.9 Moreover, we cannot speculate about the
defenses Gladden might have asserted if he had received the advice of an attorney.
The record suggests that Gladden understood the value of an attorney, at
least in general terms. Gladden gave the court copies of several United States Supreme
Court decisions that address the right to counsel. Among these was a copy of the
Supreme Court?s landmark decision in Johnson v. Zerbst,10 which declared ?the obvious
truth that the average defendant does not have the professional legal skill to protect
himself when brought before a tribunal with power to take his life or liberty, wherein the
prosecution is presented by experienced and learned counsel.?11 But again, absent some
inquiry by the trial court, we cannot know whether Gladden read the relevant portions of
those decisions, or understood what they meant in the context of his case. A knowing and
intelligent waiver of the right to counsel cannot be inferred solely from the
vociferousness of Gladden?s assertion of that right. As observed in the concurring
opinion in James:
Many misinformed and uninformed people, mistakenly
believing themselves to be adequately informed, hold strong
views. Often, though certainly not always, such views can be
changed by the giving of thorough and accurate advice.[12]
We have no doubt that Gladden impliedly elected to proceed pro se by
refusing to take the steps necessary to hire an attorney after Judge Torrisi warned him that
trial would go forward whether he had one or not. But that circumstance did not relieve
the trial court of its obligation to ensure that Gladden?s decision to forego the assistance
of counsel was knowing and intelligent. A number of jurisdictions have reached this
conclusion in cases involving similar facts.13 For instance, in State v. Weiss,14 an Ohio
case, the defendant continually maintained that he wanted private counsel, and hired and
fired several attorneys in the seven months between his arraignment and trial.15 The court
gave him four continuances so he could hire an attorney and, when he failed to do so,
warned him that trial would go forward whether he had an attorney or not.16 On the day
of trial, the defendant appeared without an attorney, but still insisted that he could not
represent himself.17 The trial court refused to grant any more delays, instead requiring the
defendant to proceed pro se, with an appointed attorney serving as an advisor.18
The Ohio Court of Appeals reversed Weiss?s conviction, explaining:
A valid waiver of counsel can be either express or
implied from the circumstances of the case. For example, the
right to have counsel of one?s own choice may be deemed to
be waived by a defendant who is financially able but fails to
retain counsel in an attempt to delay or otherwise frustrate the
judicial process.
However, ?[i]n order to establish an effective waiver of
[the] right to counsel, the trial court must make sufficient
inquiry to determine whether defendant fully understands and
intelligently relinquishes that right.? Even when the waiver of
counsel is implied by the defendant?s purported delaying
tactics, a pretrial inquiry as to the defendant?s knowing and
intelligent waiver of the right must be made. ?A court is
under no less obligation to ensure that waiver is knowing and
intelligent when voluntariness is deduced from conduct than
when it is asserted expressly.?
...
Such an inquiry must be made, even when the
defendant is seemingly engaging in delay tactics, because
such a delaying strategy by the defendant is often employed
where the defendant does not understand the crucial role of
counsel in criminal cases. If the defendant then continues
with his ?cat and mouse? game with the court, the court may
properly proceed with trial with the knowledge that the
defendant knows the gravity of his decision to proceed pro
se.[19]
Similarly in Young v. State,20 the Florida Supreme Court found reversible
error where a trial court required a defendant to proceed pro se after he refused to accept
the services of his third appointed counsel, because the trial court never conducted an on-
record inquiry concerning the advantages of an attorney and the hazards of self-
representation.21 The Florida high court noted that ?[w]hile a trial judge may presume
that an abuse of the right to assistance of counsel can be interpreted as a request by a
defendant to exercise the right of self-representation, a defendant may not be presumed to
have waived the separate right to assistance of counsel? unless the court conducts an on-
record inquiry to ensure that the defendant?s waiver was knowing and intelligent.22
In extreme cases, some courts have found that a defendant forfeited the
right to counsel even though the record was silent as to whether the defendant knowingly
and intelligently waived that right.23 But we need not decide whether to adopt the
forfeiture doctrine in this context as a matter of Alaska law because we conclude that
Gladden?s conduct was not egregious enough to amount to a complete forfeiture of his
right to counsel.
Because we are reversing Gladden?s conviction on this ground, his claims
that he was also denied his right to counsel at arraignment and at sentencing are moot.
Gladden?s other claims, to the extent that they are preserved, are meritless. He argues
that the district court had no authority to decide a case such as his, but the legislature has
expressly granted the district court jurisdiction over misdemeanor offenses.24 Gladden
also asserts that the Board of Governors of the Alaska Bar Association has no authority
to certify attorneys to practice law in this state, and that all the certificates issued by the
supreme court are bogus. Although Gladden evidently believes there is no attorney in
Alaska authorized and competent to represent him, we note that it is the State of Alaska
that decides who is qualified to practice law in this state. The legislature has authorized
the Board of Governors to establish a program for the certification of attorneys25 and to
administer a bar exam.26 Moreover, the Alaska Supreme Court has stated that it has
?inherent and final power and authority to determine the standards for admission to the
practice of law? in this state.27
Conclusion
Because the record in this case does not unequivocally show that Gladden
knowingly and intelligently waived his right to counsel, we reverse his conviction.
REVERSED.
1 AS 28.15.291(a)(1).
2 See Ledbetter v. State, 581 P.2d 1129, 1130-31 (Alaska 1978); O?Dell v.
Anchorage, 576 P.2d 104, 106-08 (Alaska 1978); Gregory v. State, 550 P.2d 374, 378
(Alaska 1976); Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska 1971).
3 McIntire v. State, 42 P.3d 558, 561 (Alaska App. 2002).
4 730 P.2d 811 (Alaska App. 1987), modified on rehearing, 739 P.2d 1314 (Alaska
App. 1987).
5 Id. at 814 n.1 (quoting the Commentary to 1 ABA Standards for Criminal Justice ?
6-3.6, at 6.39-40 (2d. ed. 1982)).
6 Id. at 813-14 (citations omitted).
7 McIntire, 42 P.3d at 562; see also O?Dell, 576 P.2d at 108.
8 Evans v. State, 822 P.2d 1370, 1375 (Alaska App. 1991).
9 O?Dell, 576 P.2d at 105-06, 108; Alexander, 490 P.2d at 915-16.
10 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
11 Id. at 462-63, 58 S.Ct. at 1022.
12 James, 730 P.2d at 815 (Bryner, C.J., concurring).
13 See, e.g., United States v. Allen, 895 F.2d 1577, 1578-79 (10th Cir. 1990) (although
trial court ruled that defendant?s refusal to accept appointed counsel and failure to hire
counsel were part of a ploy to postpone trial and were a waiver by conduct of the right to
counsel, appellate court reversed conviction because the trial court made no inquiry to ensure
that the waiver was knowing and intelligent); State v. Young, 626 So.2d 655, 657 (Fla. 1993)
(where trial court failed to conduct on-record inquiry, defendant did not waive right to
counsel even though he deliberately abused that right by repeatedly seeking the removal of
his appointed counsel); Poynter v. State, 749 N.E.2d 1122, 1128-29 (Ind. 2001) (defendant
did not knowingly waive right to counsel by repeatedly telling the court he would hire an
attorney and showing up at trial without an attorney where the court did not advise him of the
hazards of self-representation); Fitzgerald v. State, 257 N.E.2d 305, 311-12 (Ind. 1970)
(court erred by requiring the defendant to proceed pro se without a knowing and intelligent
waiver of the right to counsel even though defendant?s own conduct for one and one-half
years was entirely to blame for his failure to have assistance of counsel at his trial); State v.
Weiss, 637 N.E.2d 47, 49-50 (Ohio App. 1993) (an inquiry to determine if the defendant?s
waiver of counsel is knowing and intelligent must be made even when the defendant is
engaging in delay tactics); Trevino v. State, 555 S.W.2d 750, 752 & n.1 (Tex. Crim. App.
1977) (defendant did not knowingly waive right to counsel even though he attempted to
manipulate right to counsel to delay trial where he was not made aware of the dangers and
disadvantages of self-representation); Tacoma v. Bishop, 920 P.2d 214, 219 (Wash. App.
1996) (court erred in requiring defendant to proceed pro se without warning him of the
hazards of self-representation where defendant?s dilatory conduct was not so serious to
warrant a complete forfeiture of his right to counsel).
14 637 N.E.2d 47.
15 Id. at 48.
16 Id. at 48-49.
17 Id.
18 Id.
19 Id. at 49-50 (citations omitted).
20 626 So.2d 655.
21 Id. at 656.
22 Id. at 657.
23 See, e.g., United States v. Thomas, 357 F.3d 357, 363 (3rd Cir. 2004) (defendant
forfeited his right to counsel where he threatened his attorney, was verbally abusive to him,
tore up his correspondence, refused to cooperate in producing a witness list, hung up on him
during a telephone conversation, attempted to force him to file frivolous claims, and engaged
in this sort of misconduct with three other attorneys); United States v. Leggett, 162 F.3d 237,
240, 250 (3rd Cir. 1998) (defendant forfeited right to counsel where he punched lawyer,
knocked him to the ground, then began to choke, scratch and spit on him); United States v.
Travers, 996 F. Supp. 6, 17 (S.D. Fla. 1998) (finding forfeiture as a result of the defendant?s
?persistently abusive, threatening, and coercive? dealings with his attorneys and noting that
the defendant had been repeatedly warned that his failure to cooperate could result in a
finding of forfeiture); United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir. 1995)
(defendant forfeited his right to counsel where he was abusive toward his attorney, threatened
to harm him and sue him, and asked him to engage in unethical conduct). But see King v.
Superior Court, 132 Cal.Rptr.2d 585, 596 (Cal. App. 2003) (noting that most instances of
even serious misconduct by a defendant can be dealt with by measures less severe than
forfeiture of counsel); State v. Boykin, 478 S.E.2d 689, 690, 692 (S.C. App. 1996) (defendant
did not forfeit right to counsel based on one instance in which he ?cussed? and ?came after?
his attorney). See generally United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir.
1995) (explaining in detail the distinction between express waiver, waiver by conduct, and
forfeiture of the right to counsel).
24 Alaska Const. art. IV, ? 1; AS 22.15.060(a)(1)(A).
25 AS 08.08.080.
26 AS 08.08.201.
27 Application of Houston, 378 P.2d 644, 645 (Alaska 1963).
?16? 1979
