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Gladden v. State (3/23/2007) ap-2092

Gladden v. State (3/23/2007) ap-2092

     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

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DAVID G. GLADDEN, ) Court of Appeals No. A- 9429
) Trial Court No. 3DI- 03- 0057 CR )
v. )
) O P I N I O N
Appellee. ) No. 2092 - March 23, 2007
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Dillingham, Fred Torrisi, Judge.

          Appearances:   David  G.  Gladden,  pro  se,
          Dillingham.   Tamara E. de Lucia,  Assistant
          Attorney   General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,  and
          David  W. M rquez, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.

          A  jury  convicted David G. Gladden of driving  with  a
suspended  license.1    He appeared pro  se  at  trial.   Gladden
appealed  his conviction, and we reversed because the  record  in
his  case  did  not show that he had knowingly and  intelligently
waived  his  right  to counsel.  On remand,  the  district  court
remedied  that error.  The court informed Gladden of the benefits
of  an  attorney  and  of  the  hazards  of  self-representation.
Gladden  continued to insist that he wanted an attorney,  but  he
refused  to  take the steps necessary to get one.   The  district
court  therefore  found  that  Gladden,  by  this  conduct,   had
impliedly  elected to proceed pro se.  The court also found  that
he  had  done so knowingly and intelligently.  Gladden was  again
convicted.   In this second appeal, he renews his claim  that  he
was denied his right to counsel, and raises various other claims.
We affirm his conviction.

          Gladden  knowingly and intelligently waived  his  right
to counsel
          Gladden  renews  his  claim  that  his  conviction   is
invalid  because  he  was  denied his Sixth  Amendment  right  to
counsel  at arraignment, trial call, trial, and sentencing.    He
argues  that the district court was without jurisdiction  to  try
him because he made no on-record waiver of the right to counsel.
          In  Gladden  I,  we  held  that Gladden  had  impliedly
waived  his  right  to counsel by refusing to  hire  an  attorney
despite District Court Judge Fred Torrisis repeated warnings that
trial would go forward whether he had an attorney or not.2  As we
explained in Gladden I, Gladden refused to accept an attorney who
would not sign his contract, even though Judge Torrisi warned him
that this method of securing counsel [was] 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
          On  remand, Gladden continued to maintain that  he  had
tried to hire an attorney but could not find one willing to  sign
his  contract.   Judge Torrisi therefore found that  Gladden  had
impliedly  waived  his  right  to counsel  by  refusing  to  take
reasonable  action  to  secure an  attorney.    That  finding  is
supported  by the record.  By insisting on an attorney who  would
sign his contract, while conceding he knew that no attorney would
sign such a contract, Gladden waived his right to counsel.4
          The  record  on remand also shows that Gladdens  waiver
was knowing and intelligent.  In Gladden I, we explained the type
of  inquiry  required once a defendant declares his intention  to
proceed pro se:
          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 defendants  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]
          On  remand,  Judge Torrisi explained the importance  of
counsel  and  the  disadvantages of self-representation  in  some
detail.   He  warned  Gladden that, while he  had  the  right  to
represent  himself,  the  decision to forego  counsel  is  almost
always a bad one.   He told Gladden that an attorney could, among
other  things:  conduct  jury voir dire and  move  to  disqualify
jurors; determine what motions to file; draft and object to  jury
instructions; contact, interview, and subpoena witnesses; request
discovery; present expert witnesses; impeach trial witnesses; and
move  the  court  to  take various actions, such  as  granting  a
judgment of acquittal.  At the prosecutors prompting, Gladden was
also  told  that  an  attorney could try to negotiate  a  reduced
sentence  with the State and, if Gladden was convicted, represent
him at sentencing.
          Judge  Torrisi  further explained  that  the  rules  of
evidence were complicated, and that it was almost impossible  for
a  lay  person to be familiar with all of them.  He told  Gladden
that, without an attorney who knew when to object, the jury might
hear  inadmissible evidence that could affect  the  verdict.   He
warned  Gladden  that if he neglected to object  to  evidence  at
trial,  he would not preserve his objection to that evidence  for
appeal.   He  told Gladden that there were pitfalls in  appearing
before the jury as both an advocate and a defendant, and that the
jury  might  find  his case less persuasive if  he  assumed  both
roles.    He also warned Gladden that, if he represented himself,
he  could  not appeal his conviction on the ground of ineffective
assistance  of counsel.   Finally, he warned Gladden that  if  he
decided to proceed pro se, he would not have the option to change
his mind and demand an attorney mid-trial.
          Under  oath,  Gladden  said he  understood  what  Judge
Torrisi  had explained to him.   He also said that he  understood
how  difficult it would be to try his case without  an  attorney.
He acknowledged that he had read the United States Supreme Courts
decision in Johnson v. Zerbst,6 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.7   He said  he  was
not ill and was not under the influence of alcohol or drugs.
          Judge  Torrisi  tried to establish  Gladdens  level  of
education,  and  to  confirm  that  he  worked  as  a  pilot,  to
demonstrate  for  the  record  that  Gladden  was  competent   to
          represent himself.  But Gladden refused to answer these questions
without  the  assistance  of  counsel.   Gladden  continued   the
position  he took in his first trial: he said he would not  waive
his  right  to counsel, that he was not qualified or prepared  to
proceed  without an attorney, but that he could not find one  who
was willing to sign his contract.8
          At  the close of Gladdens representation hearing, Judge
Torrisi found that Gladden was intelligent, that he knew what  he
was  doing,  and  that  he had effectively waived  his  right  to
counsel by refusing to accept any attorney who would not  sign  a
contract that he knew no attorney would sign.
          This conclusion is supported by the record.  There  was
nothing  particularly  complex about Gladdens  case;  the  States
evidence consisted of the testimony of the arresting officer  and
a  certified  copy  of  Gladdens driving record.9    Gladden  had
already  represented  himself through one trial.   Judge  Torrisi
explained the hazards of self-representation and the benefits  of
an  attorney in considerable detail.  Gladden said he  understood
the   judges  explanation.    He  also  said  he  understood  how
difficult it would be to try his case without a lawyer.  Although
Gladden  refused to answer questions about his education or  what
he  did  for a living, Judge Torrisi had already been  through  a
trial with Gladden; he therefore had grounds to find that Gladden
was  intelligent and could follow the rules of court and  conduct
his  defense without being disruptive or disorderly.  Given  this
record,  we  conclude  that Gladden knowingly  and  intelligently
waived  his right to an attorney at trial and that Judge  Torrisi
did not err in requiring him to proceed pro se.
          Gladden  also  argues that he was denied his  right  to
counsel  in  his arraignment before Judge Torrisi on  August  15,
2005.   But Gladden was not arraigned on August 15, 2005; he  was
arraigned  on  February 19, 2003, before Magistrate Monte  Brice.
To  the  extent that Gladden intended to argue that he was denied
his  right  to  counsel during his arraignment before  Magistrate
Brice, his claim is inadequately briefed.10  We therefore do  not
address it.
          Gladden  argues that he was denied his right to counsel
at  sentencing  because Judge Torrisi did not obtain  a  separate
waiver  of counsel in that proceeding.  Because Gladden  did  not
raise this claim below, he must show plain error.11
          Alaska  courts  have  not  addressed  whether  a  valid
waiver  of  counsel  at  trial remains in  effect  at  subsequent
proceedings,  or whether the court must obtain a separate  waiver
at  each  proceeding.   But  the weight  of  authority  in  other
jurisdictions is that a valid waiver remains in effect unless the
defendant  explicitly  revokes  it  or  there  is  a  change   of
circumstance that gives the court reason to renew its inquiry.12
          At  sentencing,  Gladden did not request  counsel;  nor
has  he  pointed  to any circumstance suggesting that  the  court
should have conducted a new inquiry sua sponte.  Because there is
significant  authority to support the courts conclusion  that  no
renewed  inquiry was necessary under these circumstances, Gladden
has not shown plain error.13
          Gladdens  claim that he was denied counsel at  his  two
trial  calls  fails for the same reason.  Gladdens representation
          hearing was held in June 2005; his trial calls were held several
months later, in August 2005, after Judge Torrisi had obtained  a
valid  waiver  of  Gladdens right to counsel.   Although  Gladden
continued to assert, as he had throughout his litigation, that he
was being denied his right to counsel, he said nothing to suggest
that  he  had  changed  his  position and  was  willing  to  take
realistic  steps  to  hire  an attorney  or  to  demonstrate  his
eligibility   for   court-appointed   counsel,   or   that    his
circumstances  had  changed  in  some  other  way.   Gladden  has
therefore not shown plain error.

          Gladdens other claims
          Gladden  appears  to  argue  that  the  supreme   court
violated  the  constitution  by  enacting  Criminal  Rule  5  and
Criminal  Rule 5.1, which provide, respectively, that a defendant
must  be  advised of the right to counsel at arraignment and  has
the  right  to  counsel  at a preliminary examination.    Gladden
apparently  is  of the view that the supreme court,  by  enacting
these  rules,  provided that these rights could be  abrogated  by
supreme court order or by legislation. This argument fails.   The
supreme court enacted these rules to implement the constitutional
right to counsel, not to supersede it.14
          Gladden  also  argues that he was denied a  fair  trial
because  the judge and prosecutor had an interest in the  outcome
of  his  case.  To support this claim, he notes that his criminal
complaint  identifies him by his social security number   conduct
he  claims  would  place Gladden outside of any Constitution  and
without  any  constitutionally secured rights having  accepted  a
benefit, i.e. gratuity as held in In re Murchison, 349 U.S.  133,
136  [,  75  S.  Ct.  623, 625, 99 L. Ed 942]  (1955).   (Gladden
apparently cites In re Murchison for the principle that no man is
permitted  to  try  cases  where  he  has  an  interest  in   the
outcome.15)  He also argues that the judge and prosecutor had  an
interest  in  his  drivers license because the court  system  has
entered  into  a  cooperative agreement with  the  Child  Support
Enforcement  Division.   But  Gladden  does  not  articulate  why
including  his  social security number on the complaint,  or  the
court systems cooperative agreement with the CSED, gave the judge
and prosecutor an interest in the outcome of his case.  His claim
is thus inadequately briefed.16
          Gladden  also argues that his right to discovery  under
Criminal Rule 16 was violated because the State did not give  him
documents   demonstrating   that  the   judicial   officers   and
prosecutors  involved  in his case were public  officers  of  the
State  of  Alaska.  During trial, Gladden asked  for  a  stay  of
proceedings  so  he could file an interlocutory  appeal  in  this
court concerning Rule of Professional Conduct 1.2, Criminal  Rule
16(a),  and  his  right  to  have an independent  judge.  Gladden
complained  that  the  State  had  denied  him  inculpatory   and
exculpatory  evidence  having to do  with  lawyers  and  the  bar
association.  Gladden did not elaborate on the precise  documents
he was seeking.  Judge Torrisi denied the stay after establishing
that Gladden was seeking bar rules, rules of professional conduct
and  legal opinions and not police reports, criminal records,  or
other documents that the State must disclose under Rule 16.
          There was no discovery violation.  Gladden did not  ask
the  trial  court to compel any specific documents,  nor  did  he
explain how documents relating to lawyers and the bar association
were  material to his defense.  In the absence of such a  showing
of  materiality,  the type of documents he was  seeking,  to  the
extent  that they exist, are not of the type that the  State  was
required to disclose under Rule 16.17
          Gladden   also  argues  that  there  are  no  attorneys
properly licensed in Alaska because the Board of Governors of the
Alaska  Bar  Association and the Alaska  Supreme  Court  have  no
authority to certify and admit attorneys to practice law in  this
          state.  In Crane v. State,18 we gave careful consideration to
that claim, and rejected it.19
          Lastly, Gladden claims that the district court  had  no
authority  to  decide his case.  We considered and rejected  this
same argument in Gladden I.20

          Gladdens conviction is AFFIRMED.

     1  AS  28.15.291(a)(1);  Gladden v.  State,  110  P.3d  1006
(Alaska App. 2005).

     2  Gladden,  110 P.3d at 1010; see also Crane v. State,  118
P.3d  1084,  1093  (Alaska App. 2005) (noting  that  deliberately
refraining from hiring an attorney may be treated as a waiver  of
the right to counsel).

     3 Gladden, 110 P.3d at 1009.

     4  Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979)  (It
has been well established that a non-indigent defendant who fails
to  retain an attorney within a reasonable time before trial  may
be  found to have waived his right to counsel.) (citing Ungar  v.
Sarafite,  376 U.S. 575, 589, 84 S. Ct. 841, 849, 11  L.  Ed.  2d
921,  931 (1964); United States v. Rubinson, 543 F.2d 951, 963-64
(2d  Cir.  1976); United States v. Casey, 480 F.2d 151, 152  (5th
Cir.  1973); United States v. McMann, 386 F.2d 611, 618 (2d  Cir.
1967);  Relerford v. United States, 309 F.2d 706, 708  (9th  Cir.
1962));  see also United States v. Llanes, 374 F.2d 712, 717  (2d
Cir. 1967) (quoting United States v. Bentvena, 319 F.2d 916,  936
(2d  Cir.  1963) (We and other courts of appeals have  repeatedly
made clear that the right to counsel cannot be ... manipulated so
as  to  obstruct  the  orderly procedure  in  the  courts  or  to
interfere with the fair administration of justice.)).

5  Gladden,  110  P.3d  at 1009  (quoting  James  v.  State,  730
P.2d 811, 814 n.1 (Alaska App. 1987) (quoting the Commentary to 1
ABA  Standards  for  Criminal Justice  63.6, at  6.3940  (2d  ed.

     6 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

     7 304 U.S. at 462-63, 58 S. Ct. at 1022.

8 Gladden, 110 P.3d at 1008.

     9 Id. at 1007.

     10    Katmailand,  Inc. v. Lake and Peninsula  Borough,  904
P.2d 397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co.
of New York, 803 P.2d 406, 410 (Alaska 1990).

     11    Winkler  v.  State, 580 P.2d 1167, 1173 (Alaska  1978)
(citing Alaska R. Crim. P. 47(b)).

     12    See, e.g., United States v. McBride, 362 F.3d 360, 367
(6th  Cir. 2004); United States v. Springer, 51 F.3d 861,  864-65
(9th  Cir. 1995); United States v. Unger, 915 F.2d 759, 762  (1st
Cir.  1990); United States v. Fazzini, 871 F.2d 635, 642-43  (7th
Cir.  1989); Panagos v. United States, 324 F.2d 764, 765-66 (10th
Cir.  1963); Davis v. United States, 226 F.2d 834, 840 (8th  Cir.
1955);  State v. Steed, 506 P.2d 1031, 1033 (Ariz. 1973);  People
v. Baker, 440 N.E.2d 856, 860-61 (Ill. 1982); State v. Carpenter,
390  So. 2d 1296, 1299 (La. 1980); State v. Tiff, 260 N.W.2d 296,
303  (Neb.  1977);  State v. Mathis, 159 N.W.2d  729,  732  (Wis.

     13    Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982)
(holding  that  error  is  not plain if reasonable  judges  could
disagree as to whether error occurred).

14    See  McCracken  v.  State, 518 P.2d 85,  88  (Alaska  1974)
(Both  the Sixth Amendment to the United States Constitution  and
art.  I,  sec. 11 of the Alaska Constitution guarantee a criminal
defendant the right to counsel.).

     15   349 U.S. at 136, 75 S. Ct. at 625.

     16    Katmailand, 904 P.2d at 402 n.7; Petersen, 803 P.2d at

     17   See Alaska R. Crim. P. 16(b).

     18   118 P.3d 1084.

     19   Id. at 1086-93.

     20   110 P.3d at 1012.

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