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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
| JOHN FALCONE, | ) |
| ) Court of Appeals No. A-10278 | |
| Appellant, | ) Trial Court No. 1JU-08-182 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2257 April 2, 2010 | |
Appeal from the Superior Court, First Judi
cial District, Juneau, Philip M. Pallenberg,
Judge.
Appearances: Margi A. Mock, Assistant
Public Defender, Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Angela D. Kemp, Assistant District Attorney,
and Daniel S. Sullivan, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
John Falcone repeatedly presented pleadings and
courtroom objections based on his persistent belief that the
Uniform Commercial Code and admiralty jurisdiction would provide
a defense to the charges he faced at his criminal trial.
Superior Court Judge Philip M. Pallenberg eventually concluded
that Falcone could not present his case in a rational and
coherent manner, based on his irrational pleadings and
objections, his obstreperous courtroom conduct, and a pretrial
competency evaluation. We conclude that under these
circumstances, the trial judge had the discretion to deny
Falcones self-representation request.
Background
On the morning of February 8, 2008, John Falcone spent
several hours drinking at the Rendezvous Bar in Juneau, Alaska.
After Falcone became belligerent towards some of the patrons, the
bartender asked him to leave. Falcone became angry and began
throwing bar stools and damaging other items around the bar.
Falcone was arrested and charged with disorderly conduct,1
resisting arrest,2 fourth-degree criminal mischief,3 and being
drunk on licensed premises.4
During Falcones arraignment on the misdemeanor
charges, District Court Judge Keith B. Levy noted that he had
previously denied Falcones request to represent himself in other
proceedings, and that unless something dramatic has changed, [he]
would be inclined to decline [the request] again. When Judge
Levy appointed the public defender to represent Falcone, the
defendant objected:
I will not talk with them. Your Honor, the
Constitution of the United States grants
this court two criminal jurisdictions. One
is the admiralty jurisdiction that
constitutes the condition of a contract, the
other is a common law jurisdiction which
requires an injured party.
Falcone was later indicted for criminal mischief in
the third degree,5 and Judge Pallenberg held a felony
arraignment. When the judge asked whether Falcone received a
copy of the indictment, Falcone began arguing his rights under
the Uniform Commercial Code and asserted that he would not be
compelled to enter into any contract, including appointment of
attorney contracts.
Throughout the arraignment, Falcone continued to raise
arguments under the Uniform Commercial Code and to make
assertions about criminal procedure which indicated that he did
not understand the nature of the proceeding. For example,
Falcone told the judge: [S]o, basically, if we go to trial, Im
going to demand that the jury bring charges against the bartender
and possibly the owner of the bar as well. Following the felony
arraignment, Falcone filed a series of motions arguing his right
to self-representation, citing the Uniform Commercial Code and
the Bible one of the motions called for a jury trial for the
right to self representation, d[ue] to the belief in a supreme
being.
Judge Pallenberg ordered a competency evaluation and
scheduled a competency hearing for later in the month. The
Alaska Psychiatric Institute evaluation concluded that Falcone
was competent to stand trial and to represent himself. The
evaluating psychologist noted that Falcone carried a diagnosis of
antisocial personality disorder and polysubstance dependence.
She stated that although Falcone appeared to understand how he
could defend himself at trial, he was likely to do a very poor
job based on his reliance on the Uniform Commercial Code and
admiralty jurisdiction.
On April 17, 2008, the court held a hearing to further
consider Falcones competence to represent himself at trial.
Falcone repeatedly interrupted Judge Pallenberg and objected
based on the Uniform Commercial Code and admiralty jurisdiction.
Judge Pallenberg had to warn Falcone to stop interrupting.
Ultimately, Judge Pallenberg made the following findings:
I have serious reservations about Mr.
Falcones ability to or willingness to abide
by the procedures set by the Court to comply
with rulings, but he is absolutely correct
that he has a constitutional right to
represent himself. And I think the way this
discussion has gone forward, I think its
likely when we get to trial that Mr.
Falcones going to bring up extraneous
matters, interrupt other parties and the
Court, make incoherent legal arguments, and
otherwise not make a very coherent
presentation of his case. But I certainly
dont want to violate his right to represent
himself. And I think that the best way to
proceed is to appoint standby counsel for
him.
After further discussion with Falcone and the attorneys, Judge
Pallenberg concluded:
I will find that Mr. Falcone, although his
decision may be based on some legal theories
that are that may be legally incorrect,
that he is possesses the minimum level of
competency to waive counsel, that he does so
freely and voluntarily. ... And at this
point, although I think he his ability to
present a coherent case is in question, I
will, with the assistance of standby
counsel, allow him to represent himself.
On May 8, 2008, Judge Pallenberg conducted an omnibus
hearing. Falcone entered an objection to the state being the
defendant and warned the court and opposing counsel that he had
more motions to file, including a motion about [his] religious
belie[f]s to have counsel on [his] case. After discussion with
all parties, Judge Pallenberg came to the conclusion that his
earlier determination as to Falcones competence to represent
himself was wrong. Relying on McCracken v. State,6 the judge
determined that Falcone was not capable of presenting his case in
a rational and coherent manner, and that his trial, if he
represent[ed] himself, would be a farce. Judge Pallenberg then
appointed the Public Defender Agency to represent Falcone at
trial.
The Public Defender Agency filed a motion to withdraw
at Falcones request. At a June 3, 2008 hearing, the judge denied
the motion, noting that a trial in which Mr. Falcone is trying to
represent himself is not a trial in which his case is going to be
presented in any kind of rational or coherent way. And I think
his filings and statements have made that clear.
On June 24, 2008, the parties argued the impact of the
recent decision by the United Stated Supreme Court in Indiana v.
Edwards.7 Falcones attorney maintained that Edwards supported
Falcones right to represent himself, particularly because
Falcones psychiatric evaluation did not reveal any serious mental
illness. In response, the State called the courts attention to
Falcones behavior in the courtroom, as well as his pro se filings
several of which referenced authorities not relevant to the case
such as the Bible and the Uniform Commercial Code.
Judge Pallenberg concluded that as a legal matter ...
the McCracken standard survives [Edwards]. In light of that
conclusion, Judge Pallenberg repeated his earlier conclusion that
Falcone was not capable of presenting a rational and coherent
case to a jury.
Falcone objected (personally) and began discussing his
right to self-representation:
I am proceeding in propria persona, Ive been
asking for evidence ever since I was
arraigned on this charge and it cant be
brought by an agency or institution. This
is the only valid means by which a citizen
may begin to face his accuser. Also the
injured party corpus delicti must make the
accusation, hearsay evidence may not be
provided. ... I put in a complaint against
you, Mr. Pallenberg, for the way you
introduced yourself to me, the way the
attorney generals are heading their papers
in the district slash superior court for the
state of Alaska. ...
On the morning of trial, a final conference was held
with Falcone and the attorneys. During the conference, Falcone
repeatedly interrupted Judge Pallenberg, until the judge warned
him that if he continued, he would be removed from the courtroom
and charged with contempt.
At the close of the trial, a jury convicted Falcone of
disorderly conduct and being a drunken person on licensed
premises, and acquitted him of all other charges. Falcone now
appeals the superior courts decision denying his request to
represent himself.
Discussion
The Competency Considerations for Self-Representation
A criminal defendant has a constitutional right to
proceed to trial without counsel if he voluntarily and
intelligently elects to do so.8 The right of self-representation
may be restricted only in narrow circumstances in order to
prevent a perversion of the judicial process.9
In McCracken, the Alaska Supreme Court established the
following procedure for a judge considering a defendants request
for self-representation: The trial judge should first decide
whether the defendant is capable of presenting his [case] in a
rational and coherent manner; secondly, that the defendant
understands precisely what he is giving up by declining the
assistance of counsel; and, finally, that the defendant is
willing to conduct himself with at least a modicum of courtroom
decorum.10 This court has consistently followed this standard,
recognizing that the right of self-representation may be denied
only if the defendant is not minimally capable of presenting
their case in a coherent fashion ... [or] if the defendant is not
capable of conducting their defense without being unusually
disruptive.11
Federal law also allows a trial judge to deny self-
representation in certain narrow circumstances. In Edwards, the
United States Supreme Court concluded that the Constitution
permits judges to take realistic account of the particular
defendants mental capacities by asking whether a defendant who
seeks to conduct his own defense at trial is mentally competent
to do so.12 The Edwards Court went on to explain its decision in
a way that focused on the facts of that case: [T]he Constitution
permits States to insist upon representation by counsel for those
competent enough to stand trial ... but who still suffer from
severe mental illness to the point where they are not competent
to conduct trial proceedings by themselves.13
Based on this language, Falcone now argues that the
Edwards decision requires severe mental illness as a condition
precedent to a state courts decision to deny an otherwise
competent defendant the right of self-representation. Falcones
position is supported by the decision of the Seventh Circuit
Court of Appeals in United States v. Berry.14
This court is not bound by Berry, and we are not
persuaded by its reasoning.15 We do not read the Edwards
decision to require serious mental illness as a necessary
condition before a trial judge can limit the right of self-
representation. We acknowledge that the Edwards Court declined
Indianas request to adopt a specific standard similar to the
Alaska standard, a standard that would deny a criminal defendant
the right to represent himself at trial where the defendant
cannot communicate coherently with the court or a jury.16 But
the Edwards Court did not disapprove this standard. The Court
simply failed to reach this issue because Edwardss case could be
decided on narrower grounds. In other words, the Edwards
decision left the Alaska standard undisturbed.
Judge Pallenbergs Decision
The Edwards decision recognized that the trial judge
is best able to make more fine-tuned mental capacity decisions,
tailored to the individualized circumstances of a particular
defendant.17 We agree, and we therefore review a trial judges
decision to limit a defendants right to self-representation for
an abuse of discretion.18
Judge Pallenbergs decision in this case was based on
Falcones pretrial psychological evaluation, his pleadings, and
his courtroom behavior. When given the chance to represent
himself, Falcone filed bizarre pretrial motions, and insisted on
presenting a defense based on the Uniform Commercial Code,
admiralty jurisdiction, and his religious beliefs. Falcone also
raised unintelligible objections in court. In addition, Falcone
repeatedly interrupted the judge, eventually requiring the judge
to warn Falcone that he could be removed from the courtroom.
Falcones behavior in this case resembles the behavior
of the defendant in United States v. Ferguson.19 When asked
whether he wanted to plead guilty, Ferguson replied: Well, your
honor, I fully accept the charges for value and for
consideration. And I ask that these charges, these accounts be
closed out and settled by the exemption in accordance to public
policy.20 When the court responded that it did not understand
Ferguson, he explained his answers by reference to House Joint
Resolution 192, public law 73-10, and UCC 3-419 and then
repeatedly invoked the Uniform Commercial Code in his defense.21
In accord with pre-Edwards law, Ferguson was permitted to
represent himself at trial with advisory counsel standing by.22
On appeal, the Ninth Circuit concluded that Fergusons actions
suggest that he might have been unable to carry out the basic
tasks needed to present his own defense without the help of
counsel and therefore remanded the case, requiring the trial
court to reexamine its decision to allow Ferguson to proceed pro
se.23
The Ferguson courts concerns about the competency and
conduct of a similarly challenged defendant suggest that Judge
Pallenberg could reasonably conclude that Falcone was not
competent to represent himself at trial. Falcone presented
pleadings and courtroom objections that were neither rational nor
coherent. His personality disorder and obstreperous courtroom
conduct suggested that his trial presentation would be similarly
unintelligible. Based on these factors, Judge Pallenberg could
reasonably conclude that Falcone could not present his defense in
a rational and coherent manner.
In reaching this conclusion, we reaffirm that both the
federal and state constitutions guarantee criminal defendants the
right to represent themselves if they wish to do so. Assuming
that a defendant has validly waived the right to counsel, a trial
judge has only limited authority to reject a defendants request
for self-representation: when the defendant is incapable of
presenting his case in a coherent fashion or incapable of
conforming to the orderly procedures of the court.
We caution trial judges that many defendants will be
capable of presenting a coherent case even though, from a legal
standpoint, their asserted defense is dubious or even plainly
wrong. The question is not whether the defendant correctly
understands the law and is capable of distinguishing a good
defense from a poor one. Rather, the question is whether the
defendant is capable of presenting his or her case in an
understandable way.
Here, even though Falcones defenses based on admiralty
law and the Uniform Commercial Code were misguided, Falcones
assertion of these defenses did not necessarily demonstrate that
he was incapable of coherently presenting his case to the jury.
Judge Pallenberg properly gave Falcone the benefit of the doubt
and initially ruled that Falcone could represent himself.
Ensuing events caused Judge Pallenberg to reconsider his ruling
after Falcone persisted in his eccentric defenses to the point
where it was virtually impossible to hold any meaningful
discussion of his case, and to the point where Falcones behavor
suggested that he would not comport himself with the modicum of
courtroom decorum required by McCracken.24 On this record, Judge
Pallenberg could reasonably conclude that he should appoint
counsel to assist Falcone in order to avoid a perversion of the
judicial process.
Conclusion
We conclude that Judge Pallenberg did not abuse his
discretion when he denied Falcones request to represent himself.
We therefore AFFIRM the superior courts judgment.
_______________________________
1 AS 11.61.110(a)(6).
2 AS 11.56.700(a)(1).
3 AS 11.46.484(a)(1).
4 AS 11.04.16.040.
5 AS 11.46.482(a)(1).
6 518 P.2d 85 (Alaska 1974).
7 554 U.S. ____, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).
8 Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525,
2527, 45 L. Ed. 2d 562 (1975) (establishing the right to self-
representation under the Sixth and Fourteenth Amendments);
McCracken, 518 P.2d at 89-91 (holding that the right to self-
representation is a retained right under Article 1, Section 21 of
the Alaska Constitution).
9 McCracken, 518 P.2d at 91.
10 Id. at 91-92.
11 Oviuk v. State, 180 P.3d 388, 390 (Alaska App. 2008)
(quoting Lampley v. State, 33 P.3d 184, 189 (Alaska App. 2001));
see Ramsey v. State, 834 P.2d 811, 814 (Alaska App. 1992)
(discussing the parameters that McCracken placed around the right
to self-representation); Gargan v. State, 805 P.2d 998, 1000
(Alaska App. 1991) (emphasizing that where the court finds the
defendant lacking the ability to make a coherent presentation,
the court may require representation by counsel); Burks v. State,
748 P.2d 1178, 1180-81 (Alaska App. 1988) (same).
12 Edwards, 128 S. Ct. at 2387-88.
13 Id. at 2388.
14 565 F.3d 385, 391 (7th Cir. 2009).
15 See Harrison v. State, 791 P.2d 359, 363 (Alaska App.
1990) (explaining that Alaska courts are not bound by lower
federal court decisions on issues of federal law).
16 Edwards, 128 S. Ct. at 2388 (quotations omitted).
17 Id. at 2387.
18 Ramsey, 834 P.2d at 815; Gargan, 805 P.2d at 1001.
19 560 F.3d 1060 (9th Cir. 2009).
20 Id. at 1062.
21 Id.
22 Id. at 1064.
23 Id. at 1069-70 (quoting Edwards, 128 S. Ct. at 2386).
24 518 P.2d at 92.
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