United States v. Hoskins, Rosivito ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2470
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROSIVITO HOSKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond
Division.
No. 99-CR-117--Rudy Lozano, Judge.
Argued February 22, 2001--Decided March 21,
2001
Before BAUER, COFFEY, and MANION, Circuit
Judges.
COFFEY, Circuit Judge. Rosivito Hoskins
was convicted for being a felon in
possession of a firearm, 18 U.S.C. sec.
922(g)(1), and sentenced to 293 months
imprisonment and five years supervised
release. Hoskins appeals, arguing that he
was denied his Sixth Amendment right to
counsel at sentencing when the district
court refused to appoint substitute
counsel after Hoskins discharged his
appointed counsel. We affirm.
I. FACTUAL BACKGROUND
On August 19, 1999, a federal grand jury
indicted Rosivito Hoskins for being a
felon in possession of a firearm in
violation of 18 U.S.C. sec. 922(g)(1).
Hoskins went to trial on November 29,
1999, with Mr. Michael W. Bosch as his
court-appointed counsel. On December 2,
1999, the jury informed the trial judge
that they had been unable to reach a
unanimous verdict at the time, and
shortly thereafter the court granted the
government’s motion for a mistrial. A
second trial commenced on December 10,
1999, and the jury returned a verdict of
guilty. The trial court scheduled
sentencing for March 9, 2000.
On March 6, 2000, Hoskins filed pro se
a motion entitled "Emergency Notification
of ineffective assistance of counsel"
that included complaints about his
appointed attorney and objections to the
presentence investigation report (PSIR).
Hoskins asserted that his appointed
counsel, Mr. Bosch, "failed to object to
various parts of the report which . . .
[were] inaccurate, . . . and that there
[were] legal objections . . . that
counsel should [have] pursued." In
response to Hoskins’s motion, the
district court held a hearing March 7,
2000, on Hoskins’s claim of ineffective
assistance of counsel. At the outset of
the hearing, the court engaged in
thefollowing colloquy with Hoskins:
THE COURT: Mr. Hoskins, I will tell you
now that when I appoint an attorney, it
does not guarantee a result, number one.
Number two, when I appoint an attorney,
that does not guarantee that I will give
you another attorney. Do you understand?
THE DEFENDANT: Yes.
THE COURT: If you discharge your
attorney and I will tell [you] if you
discharge him, you have complete control
over that. You can fire him, but I may
not give you another attorney; and you
may have to represent yourself pro se. Do
you understand me?
THE DEFENDANT: Yes.
After warning Hoskins that he might have
to proceed pro se if he chose to
discharge his attorney, the court asked
him why he wanted to terminate Mr.
Bosch’s services. Hoskins responded only,
"because he’s not in my best interests."
The court then asked Hoskins on what was
he basing his belief, and Hoskins stated
that he had been "sitting over in MCC for
almost eighty days, and this is the first
time [he had] seen" Mr. Bosch since the
conclusion of the trial. Despite further
inquiry, the trial judge was unable to
elicit any other information from Hoskins
as to the reasons for his dissatisfaction
with his appointed attorney.
Nevertheless, the court offered to grant
Hoskins a continuance in order that he
might talk further with Mr. Bosch,
specifically about his objections to the
PSIR, but Hoskins responded stating that
he "doubt[ed]" that would satisfy him.
The court continued its attempt to
determine the basis for Hoskins’s
dissatisfaction with his appointed
attorney, Mr. Bosch, apart from Mr.
Bosch’s failure to visit Hoskins after
his conviction. But Hoskins only repeated
that he didn’t "think [counsel] has the
best of interest to defend me." When
asked for the specific basis for his
opinion, Hoskins responded "[b]ecause
that’s the way I feel." The court
described Hoskins’s motion as "a stall
tactic." Accordingly, because Hoskins had
provided no reason for the appointment of
substitute counsel, the court denied his
request for new counsel as untimely.
After the court denied Hoskins’s request
for other counsel, it proceeded to
discuss the ramifications of discharging
his present-appointed counsel. The court
explained to Hoskins that he had denied
his motion for a new attorney, and that
it was his choice now between
representing himself or keeping Mr. Bosch
as his counsel. The court further advised
Hoskins that he would be far better off
being defended by a trained lawyer and
that it would be "unwise" to defend
himself because of the complexity of the
legal issues involved. The court then
asked him if he had ever studied the law
or applied the Sentencing Guidelines, and
Hoskins responded that he had not.
Although Hoskins responded that he was
"not going to represent [himself,]" he
persisted in expressing his desire to
discharge Mr. Bosch. At this time, the
court repeated its offer to grant Hoskins
a continuance to allow him to talk with
Mr. Bosch and reconsider his decision.
Hoskins accepted the continuance, and the
trial judge continued the hearing on
Hoskins’s motion to March 15, 2000.
At the continued hearing, the court
again informed Hoskins that his choices
were to proceed pro se or to continue
with Mr. Bosch as his appointed counsel.
The court also provided Hoskins still
another opportunity to explain why he was
not satisfied with Mr. Bosch, but Hoskins
only repeated the same arguments he had
made at the March 9 hearing. Ultimately,
when faced with the choice between
proceeding with Mr. Bosch and
representing himself, Hoskins stated that
he "want[ed] to fire [Mr. Bosch] and go
pro se." Accordingly, the court
discharged Mr. Bosch, but also granted a
second continuance, now rescheduling the
sentencing hearing for April 21, 2000, so
that Hoskins might retain counsel.
On April 21, 2000, Hoskins asked the
court for another continuance so that his
mother could obtain a loan on her house
and apply those proceeds to obtain
counsel. The court granted this
continuance, but warned Hoskins that the
sentencing would proceed on May 23, 2000,
regardless of whether Hoskins had
successfully obtained counsel. Hoskins
agreed to "be ready to go with or
without" counsel. On May 23, 2000, the
court conducted Hoskins’s sentencing
hearing. Hoskins advised the court that
he had been unable to retain substitute
counsel, and thus proceeded to represent
himself pro se. The court sentenced
Hoskins to the maximum allowed in the
Sentencing Guidelines, 293 months
imprisonment and five years supervised
release.
II. ISSUES
Hoskins asserts on appeal that the
district court’s refusal to appoint new
counsel after it discharged his appointed
counsel denied him his Sixth Amendment
right to counsel at sentencing because
Hoskins claims that: 1) he had not waived
his Sixth Amendment right to counsel; and
2) even if he had waived his right to
counsel, he did not do so knowingly and
intelligently. We review de novo the
district court’s finding of a waiver of
the right to counsel. United States v.
Altier, 91 F.3d 953, 955 (7th Cir. 1996).
III. DISCUSSION
Hoskins was entitled to counsel during
sentencing. Rini v. Katzenbach, 403 F.2d
697 (7th Cir. 1968). Like other
constitutional rights, the right to the
assistance of counsel can be waived.
United States v. Sandles, 23 F.3d 1121,
1126 (7th Cir. 1994). If a criminal
defendant seeks to waive his Sixth
Amendment right to counsel, he must do so
knowingly and intelligently. United
States v. Irorere, 228 F.3d 816, 828 (7th
Cir. 2000). In determining whether a
defendant has knowingly and intelligently
waived his right to counsel, we will
"’indulge every reasonable presumption
against waiver.’" United States v. Goad,
44 F.3d 580, 588 (7th Cir. 1995) (quoting
United States v. Belanger, 936 F.2d 916,
919 (7th Cir. 1991) (citations omitted)).
It is not necessary, however, "’that the
defendant verbally waive his right to
counsel; so long as the district court
has given a defendant sufficient
opportunity to retain the assistance of
appointed counsel, defendant’s actions
which have the effect of depriving
himself of appointed counsel will
establish a knowing and intentional choice.’"
Irorere, 228 F.3d at 828 (quoting United
States v. Fazzini, 871 F.2d 635, 642 (7th
Cir. 1989)).
Hoskins initially argues that he never
unequivocally waived his right to
counsel. In support Hoskins points to his
desire to retain counsel and to the
portion of his colloquy before the
district court wherein he stated, "I’m
not going to represent myself pro se."
But although Hoskins claims that he made
it clear he wanted substitute counsel, he
also clearly signaled his willingness to
proceed pro se if Bosch were his only
choice. During the colloquy, Hoskins
stated that he "want[ed] to fire [Mr.
Bosch] and go pro se." Further, the trial
judge repeatedly warned Hoskins that he
might not appoint other counsel if
Hoskins chose to fire Mr. Bosch.
Moreover, the trial judge explicitly
ruled that it would not appoint
substitute counsel before Hoskins decided
whether to discharge Mr. Bosch. Thus,
Hoskins was fully aware when he made his
decision to discharge Mr. Bosch that he
would have to proceed pro se unless he
retained counsel. See Oimen v.
McGaughtry, 130 F.3d 809, 811 (7th Cir.
1997) (defendant’s insistence on
discharging counsel held to be a waiver
of the right to counsel where he was
warned that he might not get new
counsel). Accordingly, Hoskins made his
choice "with eyes open," United States v.
Avery, 208 F.3d 597, 601 (7th Cir. 2000)
(quoting Faretta v. California, 422 U.S.
806, 835 (1975)), and his hope to retain
counsel does not make his waiver
equivocal.
Hoskins next argues that, even if he did
waive his right to counsel, his waiver
was not knowingly and intelligently made.
We examine four factors in considering
whether a defendant’s waiver was knowing
and intelligent: 1) the extent of the
court’s inquiry into the defendant’s
decision; 2) other evidence in the record
that establishes whether the defendant
understood the dangers and disadvantages
of self-representation, 3) the background
and experience of the defendant, and 4)
the context of the defendant’s decision
to proceed pro se. United States v. Moya-
Gomez, 860 F. 2d 706, 735-36 (1988);
Sandles, 23 F.3d at 1126. The district
court is in the best position to assess
whether a defendant has knowingly and
intelligently waived counsel, and we will
most likely uphold the trial judge’s
decision to honor or deny the defendant’s
request to represent himself where the
judge has made the proper inquiries and
conveyed the proper information, and
reaches a reasoned conclusion about the
defendant’s understanding of his rights
and the voluntariness of his decision.
Goad, 44 F.3d at 588 (quoting United
States v. Berkowitz, 927 F.2d 1376, 1383
(7th Cir. 1991)).
Based on our review of the record, we
are satisfied that the district court
made an adequate inquiry into Hoskins’s
understanding of the advantages and
disadvantages of proceeding pro se. In
this case, the district court engaged in
a lengthy colloquy, over the course of a
two-day hearing, with Hoskins before
discharging Mr. Bosch. In that colloquy,
the district court "advised [Hoskins]
about . . . the benefits associated with
the right to counsel, the pitfalls of
self-representation, and the fact that it
is unwise for one not trained in the law
to try to represent himself." Goad, 44
F.3d at 586 (quoting Berkowitz, 927 F.2d
at 1383). The district court repeatedly
warned Hoskins of the consequences of
proceeding pro se and advised him against
it. It discussed the complexity of the
Sentencing Guidelines and Hoskins’s lack
of familiarity with them. Further, the
court granted a continuance in the
hearing on Hoskins’s motion in order that
Hoskins might confer with Mr. Bosch and
reflect further upon his stated decision.
Finally, the district court explicitly
informed Hoskins that it would not
appoint a substitute counsel before
Hoskins fired Mr. Bosch. Accordingly, we
are convinced that the record as a whole
supports our holding that Hoskins was
provided with sufficient information to
make a knowing and intelligent waiver of
his right to counsel; indeed, we are of
the opinion that the district court did
everything in its power to convince
Hoskins to reconsider his decision to
proceed pro se.
The judgment and sentence of the
district court is AFFIRMED.