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Massey Jr. v. State (11/9/2018) ap-2622

Massey Jr. v. State (11/9/2018) ap-2622

                                                    NOTICE
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



THOMAS LEONARD MASSEY JR.,  

                                                                   Court of Appeals No. A-12271  

                                   Appellant,                   Trial Court No. 3AN-12-12699 CR  



                          v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                      No. 2622 - November 9, 2018  



                  Appeal  from  the   Superior  Court,  Third  Judicial  District,  

                                           

                  Anchorage,  Michael  L.  Wolverton,  Philip  R.  Volland,  and  

                  Michael R. Spaan, Judges.  



                  Appearances: Laurence Blakely, Assistant Public Defender, and  

                                                                                 

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                      

                  Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                        

                  Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                  General, Juneau, for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                       

                  Superior Court Judge.*  

                                                 



                  Judge ALLARD.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                    Thomas Leonard Massey Jr. was charged with second-degree escape for  

                                                                                                                                



leaving the halfway house where he had been placed by the Department of Corrections.  

                                                                                                                                      



Prior to trial, Massey requested multiplerepresentationhearings becausehewas unhappy  

                                                                                                                        



with his appointed counsel.  At the final pretrial representation hearing, Massey asked  

                                                                                                  



to waive his right to counsel and to represent himself.  The judge presiding over this  

                                                                                                                               



pretrial hearing told Massey that he would give him time to think about this decision, and  

                                                                                                                                



that the court would address Massey's self-representation request at the next pretrial  

                                                                                                                          



hearing. But at the next hearing, when Massey renewed his request to represent himself,  

                                                                                                                         



the judge did not conduct the promised self-representation inquiry - and when Massey  

                                                                                                                         



tried to object, the judge would not let him personally address the court.  

                                                                                                      



                    Later, at the trial call in Massey's case, held in front of a different judge,  

                                                                                                                           



Massey again tried to renew his request to represent himself.  This second judge told  

                                                                                                                               



Massey (mistakenly) that the first judge had already resolved this issue.  When Massey  

                                                                                                                         



personally protested that this was not the case, the court ignored Massey's protests and  

                                                                                                                               



Massey's attorney did not pursue the matter further. Massey's case proceeded to a bench  

                                                                                                                            



trial (with Massey represented by counsel), and Massey was convicted.  

                                                                                              



                    In the present appeal, Massey argues that he was denied his right of self- 

                                                                                                                  



representation.  The record shows that Massey clearly and unequivocally invoked his  

                                                                                                                   



right of self-representation, but he never received the self-representation hearing to  

                                                                                                                                 



which he was entitled.  We therefore reverse his conviction.  

                                                                            



          Background facts  

                               



                    On  December  2,  2012,  Massey  was  arrested  on  charges  of  theft  and  

                                                                                                                               



resisting  arrest.         Massey  could  not  obtain  release  on  bail,  and  the  Department  of  

                                                                                                                                 



Corrections transferred him from the Anchorage jail to the Cordova Center, a halfway  

                                                                                                                      



                                                              - 2 -                                                          2622
  


----------------------- Page 3-----------------------

house.  The next day, Massey was reported missing from the Cordova Center.  He was  

                                                                                                                              



located and arrested four months later, and charged with escape.  

                                                                                       



                    The  Public  Defender  Agency  was  appointed  to  represent  Massey,  but  

                                                                                                                              



Massey became dissatisfied with the agency's representation, and he repeatedly asked  

                                                                                               



for another attorney.  Superior Court Judge Michael L. Wolverton, who presided over  



the pretrial hearings in Massey's case, denied each of Massey's requests for substitute  

                                                                                                                     



counsel.  



                    At the final pretrial representation hearing, held on August 4, 2014, after  

                                                                                                                   



Judge Wolverton again denied Massey's request for a new lawyer, Massey asked, "Can  

                                                                                                                            



I  go  pro  se?"         When  Judge  Wolverton  asked  Massey,  "Do  you  want  to  represent  

                                                                                                                     



yourself?"  Massey answered, "Yes.  Yes, Your Honor."  

                                                                          



                    Judge Wolverton told Massey that he would give him some additional time  

                                                                                                                             



to think about whether he wanted to represent himself. Massey answered that he wanted  

                                                                                                                         



to  represent  himself,  and  that  the  court  could  hold  the  inquiry  right  then.                                   Judge  

                                                                                                                           



Wolverton told Massey that they would talk about his request for self-representation at  

                                                                                                                                 



the pretrial conference scheduled for two days later, on August 6, 2014.  

                                                                                                     



                    This pretrial conference was delayed for three weeks, until August 27.  

                                                                                                                                     



When Massey's case was called at this pretrial conference,  his attorney told Judge  

                                                                                                                          



Wolverton that Massey was renewing his request to represent himself.  But instead of  

                                                                                                                                 



taking up Massey's request, as he had promised, the judge ignored Massey's request and  

                                                                                                                               



instead began questioning the attorneys if they were ready for trial. Both of the attorneys  

                                                                                                                      



indicated that they were ready. Massey tried to personally interject, but was not allowed  

                                                                                                                        



to speak.  

     



                    One week later, at a trial call held on September 2 in front of Superior Court  

                                                                                                                            



Judge Philip R. Volland, Massey's attorney noted that Massey had requested to represent  

                                                                                                                      



himself, and the attorney told Judge Volland that it was not clear "[whether] Judge  

                                                                                                                           



                                                              -  3 -                                                        2622
  


----------------------- Page 4-----------------------

Wolverton ever made a final determination on that."  Massey also told Judge Volland  

                                                                                                                        



that he thought he "was going to be able to represent [him]self," and that he was not yet  

                                                                                                                                



ready for a trial.  

                   



                    When Judge Volland went to examine the record of the August 4 hearing,  

                                                                                                                         



he found that it was sealed (because it was a representation hearing).   Rather than  

                                                                                                                              



reviewing the contents of this sealed proceeding, Judge Volland instead relied on the  

                                                                                                                                



written notations found on the sealing envelope - notations which stated, "Finds no  

                                                                                                                                 



basis, [assistant public defender] to remain as counsel of record."  

                                                                                        



                    These notations described Judge Wolverton's ruling that Massey was not  

                                                                                                                                



entitled to dismiss his public defender and have the court appoint substitute counsel -  

                                                                                                                                 



the ruling that led Massey to ask whether he could represent himself. But Judge Volland  

                                                                                                                         



misinterpreted the notations:  he thought they referred to a ruling by Judge Wolverton  

                                                                                     



denying Massey's request to represent himself.  

                                                             



                    Based on this mistaken interpretation of the notations, Judge Volland told  

                                                                                                                               



Massey that Judge Wolverton had already ruled that Massey could not represent himself.  

                                                                                                                                      



Judge Volland made clear that he was not going to reopen that issue.  

                                                                                                 



                    Massey's attorney did not correct Judge Volland's mistaken understanding  

                                                                                                                



of the record.  Massey personally tried to alert Judge Volland to his mistake, declaring  

                                                                                                                       



that he "[had] been waiting for ... [a] judge to decide whether I was going to be able to  

                                                                                                                                  



represent myself."  But Judge Volland told Massey that Judge Wolverton had already  

                                                                                                                         



ruled on his request, that it was too late to change things, and that the Public Defender  

                                                                                                                       



Agency would remain his attorney.  

                                         



                    Massey proceeded to a bench trial before Superior Court Judge Michael R.  

                                                                                                                                  



Spaan, and he was convicted of second-degree escape.  

                                                                         



                                                              - 4 -                                                          2622
  


----------------------- Page 5-----------------------

                                  At another hearing prior to his sentencing, Massey complained that he had                                                                                                        



repeatedly tried to represent himself, and that he had been repeatedly ignored.                                                                                                                            Judge  



Spaan told Massey that he had preserved this point for appeal.                                                                               



                                  Massey now appeals.               



                 Massey was denied his right to knowingly and intelligently waive counsel                                                                                               

                 and represent himself at his trial                                       



                                  In  Faretta v.                 California, theUnited States                                             SupremeCourt held that                                       criminal  



                                                                                                                                                                                                 1  

defendants have a right under the Sixth Amendment to represent themselves.                                                                                                                                      

                                                                                                                                                                                                     The right  



                                                                                                                                                                           2  

                                                                                                                                                                                                                        

of self-representation is also protected by the Alaska Constitution.                                                                                                             In McCracken v.  



                                                                                                                                                                                                                  

State, the Alaska Supreme Court declared that, at the time the Alaska Constitution was  



                                                                                                                                                                                                      

enacted, "the right of self-representation was so well established that it must be regarded  



                                                                                          3  

                                                                   

as a right 'retained by the people.'" 



                                                                                                                                                                                                         

                                  Although criminal defendants have both a right to the assistance of counsel  



                                                                                                                                                                                                        4  

                                                                                                                                                                                                            

and the right to represent themselves, the right to counsel remains dominant.                                                                                                                                 Thus,  



                                                                                                                                                                                                                    

courts must provide an indigent defendant with counsel unless thedefendant"clearly and  



                                                                                                                                                                             5  

                                                                                                                                                    

unequivocally declare[s] his desire to proceed without an attorney." 



         1       Faretta v. California, 422 U.S. 806, 819 (1975).
  



         2       McCracken v. State , 518 P.2d 85, 91 (Alaska 1974). 
 



         3       Id.
  



         4       Knix v. State, 922 P.2d 913, 918 n.6 (Alaska App. 1996).
  



         5       Johnson v. State , 188 P.3d 700, 703-04 (Alaska App. 2008).
  



                                                                                                        -  5 -                                                                                                 2622
  


----------------------- Page 6-----------------------

                           If, however, a defendant clearly and unequivocally invokes their right to                                                             



represent themself, then the court is required to conduct an inquiry to ascertain the                                                                                    

defendant's intentions and the defendant's capacity to represent themself.                                                                           6  



                                                                                                                                                                       

                           Before allowing a defendant to give up their right to counsel, the court must  



                                                                                                                                                 7  

                                                                                                                                                               

                                                                                                                                                    This includes  

ensure that the defendant's waiver of counsel is knowing and intelligent. 



                                                                                                                                                         

ensuring that the defendant understands their right to counsel, the important advantages  



                                                                                                                                                        8  

                                                                                                                                                                      

of having counsel, and the dangers and disadvantages of self-representation.                                                                                The court  



                                                                                                                                                                             

must also ensure that the defendant is minimally capable of defending themself in a  



                                                                 9  

                                               

"rational and coherent manner." 



                                                                                                                                                                            

                           Here, the record shows that Massey made clear, unequivocal requests to  



                                                                                        

represent himself, beginning at the August 4, 2014 hearing.  At that August 4 hearing,  



                                                                                                                                         

Judge  Wolverton  promised  that  he  would  conduct  the  required  self-representation  



                                                                                                                                                            

inquiry at Massey's next pretrial hearing.  But this never happened.  Instead, whenever  



                                                                                                                                                                   

Massey tried to raise this issue again, neither Judge Wolverton nor Judge Volland would  



                  

listen to him.  



       6      See James v. State, 730 P.2d 811, 813-814 (Alaska App. 1987);                                                           McCracken , 518 P.2d   



at 91-92; see also Buhl v. Cooksey, 233 F.3d 783, 794 (3d Cir. 2000);  United States v.  

Balough, 820 F.2d 1485, 1487-88 (9th Cir. 1987).  



       7     James , 730 P.2d at 813 (citing Faretta v. California, 422 U.S. 806, 834 (1975)).  



       8      Shorthill v. State, 354 P.3d 1093, 1109 (Alaska App. 2015) (citing James , 730 P.2d  



at 813-14).  



       9     James , 730 P.2d at 813 (citing McCracken v. State , 518 P.2d 85, 91 (Alaska 1974));  



                 

see also Shorthill, 354 P.3d at 1109 (citing Ramsey v. State, 834 P.2d 811, 814 (Alaska App.  

 1992); Burks v. State, 748 P.2d 1178, 1180, 1183 (Alaska App. 1988)).  



                                                                                   -  6 -                                                                            2622
  


----------------------- Page 7-----------------------

                                     The State concedes that Massey never received the self-representation                                                                                   



inquiry that he asked for.                                                However, the State argues that Massey's requests for self-                                                                                                 



representation were not "clear and unequivocal."                                                  



                                     It is true that Massey's requests to represent himself were often intertwined                                                                                                 



with Massey's statements that he was dissatisfied with his attorney and that he wanted                                                                                                                   



the court to appoint a different lawyer to represent him.                                                                                                   Based on this, the State argues                                     



that Massey's case is an example of the type of request for self-representation that we                                                                                                                                                   



described in                       Johnson v. State                                 - an instance where the request for self-representation                                                   



"appears on its face to be unequivocal," but where "the record as a whole shows that the                                                                                                                                                  

seemingly unequivocal request is in fact tentative."                                                                                            10  



                                                                                                                                                                                                                     

                                     We disagree with the State's reading of the record. As we have previously  



                                                                                                                                                                                                                            

explained, the fact that a defendant makes a request for self-representation only because  



                                                                                                                                                                                                                                              11  

                                                                                                                                                                                                                                                     

the court refuses to appoint substitute counsel does not make the request equivocal. 



                                                                                                                                                                                                                             

Although the record shows that Massey would have preferred to have the court appoint  



                                                                                                                                                                                                                                  

a different attorney to represent him, Massey made it clear that if the court was not going  



                                                                                                                                                                                                                                          

to do that, then Massey would prefer to represent himself, rather than continue with his  



                      

current lawyer.  



                                                                                                                                                                                                                                               

                                     We note that Judge Wolverton obviously thought that Massey had made a  



                                                                                                                                                                                                                                        

clear and unequivocal request for self-representation - because the judge promised that  



                                                                                                                                                                                                                             

he would take up the matter of self-representation at the very next hearing.  For reasons  



          10      Johnson v. State                             , 188 P.3d 700, 704 (Alaska App. 2008).  



          11  

                              

                   See Cook v. State, 2004 WL 719771, at *7 (Alaska App. Mar. 31, 2004) (unpublished)  

                                                                                                                             

("Within the range of choices that were legally available, Cook's decision was unequivocal.  

                                                                                                                                                                                   

There was no ambiguity in Cook's waiver of his right to counsel."); see also State v. Jordan,  

44 A.3d 794, 809 (Conn. 2012) (requesting self-representation as an alternative to substitute  

counsel does not make request equivocal).  



                                                                                                                  -  7 -                                                                                                            2622
  


----------------------- Page 8-----------------------

that are not clear, the judge later refused to do so. But the record is otherwise sufficiently                                                                                          



clear that Massey repeatedly tried to assert his right of self-representation and that he                                                                                                                    



tried to alert both Judge Wolverton and Judge Volland that he had never received the                                                                                                                        



self-representation inquiry he had been promised.                                                 



                                 Because of this, Massey's case bears little resemblance to the cases relied                                                                                          



on by the State in its briefing - cases that all involved defendants who vacillated                                                                                                        



between   their   options,   or   who   showed   only  a   passing   interest   in   representing  

themselves.12  



                                                                                                                                                                                                         

                                 Because Massey unequivocally requested to represent himself, he was  



                                                                                                                                                                                                            

entitled to a hearing where his intention could be verified, and where his capacity for  



                                                                                                                                                                                                         

self-representation could be assessed. But despite Massey's repeated requests, this self- 



                                                                                                                                                                                                               

representation hearing never took place - and, ultimately, Massey was forced to go to  



                                                                                                                                                                                                         

trial represented by counsel.  In these circumstances, the superior court's refusal to hold  



         12     See, e.g.,  Fields v. Murray, 49 F.3d 1024, 1033-34 (4th Cir. 1995) (defendant sent  



three  different  letters  to  judge,  one  of   which  included  a  request  to  proceed   pro   se,  but  

defendant did not renew request at the court hearing which was set to discuss the letters);  

                                                       

 Cross v. United States, 893 F.3d 1287, 1291 (11th Cir. 1990) (despite initial statement that  

seemed like an unambiguous request for self-representation, defendant's later statements  

made clear that he only wished permission to act as co-counsel); State v. Carter, 513 A.2d   

47,  50-51  (Conn.  1986)  (ambiguous  requests  for  self-representation   not  renewed  after  

explanations provided for trial procedures and opportunities given to consult with counsel);  

                                                                                                                                                                                            

People v. Tena, 156 Cal. App. 4th 598, 606-08 (2007) (defendant's momentary comments  

                                                                                                                                                                  

about going "pro per" were, considering the record as a whole, simply "impulsive reactions"  

based  on  the  defendant's  frustrations  with  his  attorney);  Johnson ,  188  P.3d  at  703-04  

(defendant did not renew request for self-representation after being told he could personally  

                                                                                                                                                                                      

address court at sentencing and his original comment was deemed to be simply "thinking out  

                                                                

loud" about the possibility of proceeding pro se).  



                                                                                                    -  8 -                                                                                             2622
  


----------------------- Page 9-----------------------

a hearing on Massey's request for self-representation was a structural error that requires                                                                                                                                           

reversal of his conviction.                                                 13  



                    Conclusion  



                                       We REVERSE the judgment of the superior court.  

                                                                                                                                                                          



          13       See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (denial of the right of self-                                                                                                                                          



representation is not amenable to harmless error analysis); Jordan , 44 A.3d at 811 (holding  

that the trial court erred by failing to hold a hearing after defendant clearly and unequivocally                                                                                                         

requested  to  represent  himself,   and   that  error  was  structural  error,  requiring  automatic  

reversal of defendant's conviction).  



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