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Falcone v. State (4/2/2010) ap-2257

Falcone v. State (4/2/2010) ap-2257

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-10278
Appellant, ) Trial Court No. 1JU-08-182 CR
v. )
) O P I N I O N
Appellee. )
) No. 2257 April 2, 2010
          Appeal  from the Superior Court, First  Judi
          cial District, Juneau, Philip M. Pallenberg,

          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.

          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
          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

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
          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.

          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
          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
          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.

          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

     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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