State v. Allen ( 2022 )

No. 123,647
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANTHONY DARRYL ALLEN,
Appellant.
SYLLABUS BY THE COURT
1.
The Sixth Amendment guarantees criminal defendants the right to the assistance
of legal counsel during all critical stages of a criminal proceeding.
2.
Although neither the United States nor the Kansas Constitutions explicitly provide
for a right of self-representation, the right has been implied from the right to counsel
granted in the Sixth Amendment.
3.
To exercise the right to self-representation, a defendant must make a knowing and
intelligent waiver of the right to counsel.
4.
The determination of whether a waiver of the right to counsel is knowingly and
intelligently made depends on the facts and circumstances of each case. On appeal, the
State has the burden of showing that an accused was advised of his or her right to counsel
and that the waiver of counsel was knowingly and intelligently made.
1
5.
In determining whether a defendant has made a knowing and intelligent waiver of
the right to counsel, a district court must inform the defendant of his or her rights as well
as of the potential dangers of self-representation.
6.
Although district courts are not required to use any specific checklist, the Kansas
Supreme Court articulated a three-step framework in State v. Burden, 311 Kan. 859, 863,
467 P.3d 495 (2020), for use in determining whether a defendant made a knowing and
intelligent waiver of his right to counsel.
7.
At a minimum, a district court's inquiry should be sufficient to determine whether
the defendant comprehends the nature of the charges, the significance of the proceedings,
the range of potential punishments, and any additional facts essential to understanding the
case.
8.
A competency hearing and a hearing on a motion to dismiss are critical stages of a
criminal proceeding because of the substantial prejudice that could result from such
hearings without representation by counsel.
9.
A violation of a Sixth Amendment right to counsel at a critical stage of a criminal
proceeding is subject to a structural error analysis.
10.
Structural errors are not amenable to a harmless-error analysis.
2
Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed December
30, 2022. Reversed and remanded with directions.
Adam Sokoloff, of The Sokoloff Law Firm, of Olathe, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before HURST, P.J., MALONE and BRUNS, JJ.
PER CURIAM: A jury convicted Anthony Darryl Allen of two counts of rape and
aggravated kidnapping. More than two years before the commencement of his jury trial,
the district court granted Allen's request to represent himself. The district court also
appointed standby counsel to assist in his defense. Allen continued to represent himself
until the second day of trial. At that point, he invoked his right to counsel and standby
counsel represented him throughout the remainder of the trial.
On appeal, Allen contends that he did not knowingly and intelligently waive his
right to counsel. Although the district court ultimately advised Allen of his rights—
including the dangers of self-representation—prior to trial, we find that Allen represented
himself during critical stages of this criminal case prior to making a knowing and
intelligent waiver of his right to counsel. Thus, we reverse Allen's convictions and we
remand this case to the district court for further proceedings.
FACTS
A detailed recitation of the underlying facts is unnecessary based on the limited
issue presented on appeal. As such, we will briefly summarize those facts that are
material to this appeal. We will then address additional facts as necessary in the Analysis
section of our opinion.
3
On August 2, 2015, Allen was arrested—after a four-hour standoff with the
police—at an apartment he shared with T.W. Fortunately, T.W. was able to leave the
apartment prior to the standoff and was taken to the hospital to be treated for injuries she
had suffered. Two days later, the State charged Allen with one count of the aggravated
kidnapping and two counts of rape. Subsequently, the district court appointed legal
counsel to represent Allen. Over the course of his criminal case, Allen has been
represented by multiple attorneys and has also represented himself at various times.
At a scheduling conference on March 23, 2017, Allen appeared in court with his
third appointed counsel. The attorney informed the district court that Allen was refusing
to meet with him. Moreover, Allen indicated that he wanted to represent himself because
he did not "trust nobody but himself." In response, the prosecutor argued against allowing
Allen to represent himself due to the complicated nature of the criminal proceedings as
well as the potential sentence. The district court decided to defer ruling on Allen's request
for self-representation and ordered that he undergo a competency evaluation. We note
that Allen had previously been evaluated and found to be competent to stand trial.
On May 11, 2017, the district court held a hearing addressing several matters. At
the outset, the district court indicated that it had reviewed a report from Johnson County
Mental Health regarding Allen's competency. After sharing the report with the parties and
seeking their input, the district court again found Allen to be competent to stand trial.
After it had ruled on the competency issue, the district court turned to other matters.
Unfortunately, the transcript of the May 11th hearing is incomplete because of a
malfunction of the recording equipment and only contains the statements made by the
district court judge. Nevertheless, it can be gleaned from the portion of the transcript in
the record that the district court asked: "All right. Mr. Allen, is that correct—that you
would like to represent yourself in this matter?" Even though Allen's response is absent
from the transcript, it is reasonable to assume that he answered in the affirmative because
4
the district court then asked: "And you understand the seriousness of the charges against
you?" Again, the transcript does not include Allen's response. Regardless, it is clear that
the district court granted Allen's request to represent himself, permitted his third
appointed counsel to withdraw, and appointed a fourth attorney to serve as his standby
counsel.
A few weeks later, the district court permitted Allen's standby counsel to withdraw
due to a conflict and appointed a fifth attorney to serve in that capacity. From May 11,
2017, to September 16, 2019, Allen represented himself at various hearings with the
assistance of standby counsel. Even though several of these hearings only involved
scheduling issues, Allen also represented himself at a competency hearing held on March
23, 2018, and a hearing on a motion to dismiss held on May 22, 2018.
On July 11, 2018, the district court held a hearing at which it asked Allen if he still
intended to represent himself at trial. In response, Allen reiterated his intent to proceed
pro se. The district court then asked Allen if he had a chance to talk to his standby
counsel about the upcoming trial or regarding criminal procedure. Allen stated that he
and standby counsel had "talked about it." Standby counsel also informed the district
court that he had been visiting with Allen about the case but was allowing him to take the
lead. The district court then conducted a comprehensive colloquy with Allen about his
decision to represent himself.
Specifically, the district court "highly advise[d]" Allen to permit his standby
counsel to serve as his attorney. The district court warned Allen there were "a lot of
things about the trial process, about the rules of evidence that may be difficult for [a self-
represented defendant] to maneuver." Even so, Allen reiterated that he wished to proceed
pro se. Following his affirmation, the district court advised Allen that he could exercise
his right to counsel at any point and warned him that his self-representation would be
5
terminated "if you're disrespectful to somebody in court . . . or obstruct the trial process."
In response, Allen confirmed that he understood.
The district court further advised Allen that he would be bound by the applicable
rules of criminal procedure. It also pointed out the "numerous dangers and
disadvantage[s]" of self-representation. The district court pointed out that an attorney
would be better equipped to handle the various matters that were required to prepare for
trial as well as matters that would arise during the jury trial. The district court warned
Allen that by representing himself he may inadvertently waive his legal rights and that his
ability to prepare for trial could be limited due to his incarceration. In addition, the
district court reminded Allen of the potential sentences for each of the charges. Again,
Allen stated he understood and confirmed his desire to represent himself.
At a hearing held on August 10, 2018, standby counsel informed the district court
that Allen had refused his assistance. Yet again, Allen confirmed that he wanted to
continue representing himself. Moreover, standby counsel represented to the district court
that he would be prepared for trial. On October 18, 2018, the district court inquired once
again about Allen's desire to represent himself at trial. The district court reminded Allen
"I have been through the entire list for you as to the reasons why I would suggest that you
let [standby counsel] proceed for you. But at any time . . . you can request that [he] take
over for you."
On December 7, 2018, standby counsel advised the district court that Allen
continued to refuse his offers of assistance. Almost six months later, on May 29, 2019,
Allen again confirmed his intent to represent himself. Finally, at a pretrial conference
held only a few days before trial, the district court attempted once more to convince Allen
not to represent himself at trial. The district court reminded Allen that it did not believe
that self-representation was in his best interest. The district court also reminded Allen
"that at any time you can change your mind" and have standby counsel to "proceed on
6
your behalf." Further, the district court reminded Allen that it "considers it detrimental
for you to not to accept or employ counsel to represent yourself; you understand that?"
Allen responded, "Yes, your Honor."
A three-day jury trial began on September 16, 2019. Allen initially represented
himself with the assistance of standby counsel. However, at the start of the second day of
trial, Allen invoked his right to be represented by counsel. As a result, standby counsel
represented Allen throughout the remainder of the trial. Ultimately, the jury convicted
Allen on each of the charges and the district court sentenced him to a controlling term of
331 months in prison.
ANALYSIS
On appeal, Allen contends that although he repeatedly expressed a desire to
represent himself during the underlying proceedings, he did not knowingly and
intelligently waive his right to counsel. In particular, Allen points to the hearing on May
11, 2017, at which the district court originally granted his request to proceed pro se and
appointed standby counsel to assist him. In response, the State contends that if one looks
at the record as a whole rather than simply to a single hearing, it is apparent that Allen
knowingly and intelligently waived his right to counsel prior to trial.
The State argues the district court properly advised Allen of his rights at a hearing
held on July 11, 2018, as well as at the final pretrial conference held a few days before
trial. Based on our review of the record on appeal, we agree with the State that the district
court appropriately obtained a knowing and intelligent waiver from Allen prior to trial.
Nevertheless, the record also reflects that Allen represented himself at critical stages of
the proceedings prior to waiving his right to counsel in the manner prescribed by Kansas
law.
7
The Sixth Amendment guarantees criminal defendants the right to the assistance
of legal counsel during all critical stages of a criminal proceeding. Miller v. State, 298
Kan. 921, 929, 318 P.3d 155 (2014). Although neither the United States nor the Kansas
Constitutions explicitly provide for a right of self-representation, the right has been
implied from the right to counsel granted in the Sixth Amendment. See Faretta v.
California, 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). To exercise the
right to self-representation, a defendant must make a knowing and intelligent waiver of
the right to counsel. 422 U.S. at 835; see also State v. Bunyard, 307 Kan. 463, 470, 410
P.3d 902 (2018); State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010); State v. Vann,
280 Kan. 782, 793, 127 P.3d 307 (2006).
We exercise unlimited review over questions involving the interrelated rights to
counsel and self-representation. Bunyard, 307 Kan. at 470. However, the determination
of whether a waiver of the right to counsel was knowingly and intelligently made
depends on the facts and circumstances of each case. State v. Buckland, 245 Kan. 132,
137, 777 P.2d 745 (1989). As a result, we review a district court's findings on a waiver of
counsel for substantial competent evidence. See State v. Hughes, 290 Kan. 159, 170, 224
P.3d 1149 (2010). Furthermore, the State has the burden of showing that an accused was
advised of his or her right to counsel and that their waiver of counsel was knowingly and
intelligently made. State v. Youngblood, 288 Kan. 659, 662, 206 P.3d 518 (2009).
In determining whether a defendant has made a knowing and intelligent waiver of
the right to counsel, a district court must inform the defendant of his or her rights as well
as of the potential dangers of self-representation. See Vann, 280 Kan. 782, Syl. ¶ 3. To
assist district courts in doing so, our Supreme Court has articulated a three-step
framework to be used in determining whether a defendant made a knowing and
intelligent waiver of his right to counsel. State v. Burden, 311 Kan. 859, 863, 467 P.3d
495 (2020):
8
"First, a court should advise the defendant of the right to counsel and to appointed
counsel if indigent. Second, the defendant must possess the intelligence and capacity to
appreciate the consequences of his or her decision. And third, the defendant must
comprehend the charges and proceedings, punishments, and the facts necessary for a
broad understanding of the case.
"To assure the defendant appreciates the consequences of waiving representation
by counsel . . . the court [should] explain that the defendant will be held to the same
standards as an attorney; that the judge will not assist in or provide advice about
presenting a defense; and that it is advisable to have an attorney because many trial
techniques, evidence rules, and the presentation of defenses require specialized training
and knowledge. [Citations omitted.]" Burden, 311 Kan. at 863-64.
Nevertheless, district courts are not required to use any specific checklist. Instead,
district courts should "weigh whether a defendant has knowingly and intelligently waived
the right to counsel by examining the circumstances of each case." 311 Kan. at 864. At a
minimum, the district court's inquiry should be sufficient to determine whether the
defendant comprehends the nature of the charges, the significance of the proceedings, the
range of potential punishments, and any additional facts essential to understanding the
case. Buckland, 245 Kan. at 138.
Here, the record reflects the district court ultimately advised Allen of his legal
rights, the consequences of his decision to represent himself, the nature of the charges,
and the potential punishment prior to trial. However, Allen argues that the district court
failed to appropriately determine whether his waiver of the right to counsel was
knowingly and intelligently made at the hearing held on May 11, 2017. Based on our
review of the record on appeal, we agree.
As discussed above, the district court considered several matters at the hearing on
May 11, 2017. Although the digital recording malfunction makes it difficult to determine
everything that occurred at the hearing, the transcript is sufficient for us to ascertain what
was said by the district court. Although the transcript reveals that after Allen announced
9
his desire to represent himself at the hearing the district court asked two questions, we
find nothing to suggest that the district court took any additional steps to assure that he
appreciated the consequences of waiving representation by counsel. Likewise, the State
does not point us to anything to establish that Allen made a knowing and intelligent
waiver of counsel at that hearing.
Rather, the State argues that "the district court went above and beyond" at
subsequent hearings to make sure that Allen's waiver was knowingly and intelligently
made prior to trial. In particular, the State points us to a hearing held on July 11, 2018,
and to the final pretrial conference held a few days before trial. Even though we agree
that the district court did a commendable job in assuring that Allen knew his rights as
well as the inherent dangers of self-representation prior to trial, the right to counsel
extends to all critical stages of a criminal proceeding. Jones, 290 Kan. at 379. Hence, we
must look to the events that occurred between May 11, 2017, and July 11, 2018, to
determine whether Allen represented himself at any critical stages of the proceedings
prior to knowingly and intelligently waiving his right to counsel.
In State v. Jones, a criminal defendant was not permitted to represent himself at
his preliminary hearing after the district court made a cursory inquiry. Although the
defendant later agreed to be represented by counsel at his jury trial, he appealed his
convictions and argued that the district court's denial of his motion to represent himself at
the preliminary hearing constituted reversible error. On appeal, a panel of this court
found that any error by the district court was harmless because the defendant was
represented by competent counsel at the trial. On review, the Kansas Supreme Court held
that a preliminary hearing is a critical stage of a criminal prosecution and, as a result, the
district court had committed structural error that required a reversal of the defendant's
convictions. In reaching this conclusion, our Supreme Court found that such errors are
not subject to a harmless-error analysis. 290 Kan. at 382-83.
10
More recently, a panel of this court reached a similar conclusion in State v. Solton,
No. 123,927, 2022 WL 7824450, at *7 (Kan. App. 2022) (unpublished opinion). In
Solton, the panel found that a district court violated the defendant's right to counsel when
it allowed the defendant to represent himself at a preliminary hearing without first
obtaining a knowing and intelligent waiver. Although the State argued that the defendant
had effectively waived his right to counsel, the panel found that "cobbled together pieces
[of the record] are not the equivalent of a proper waiver of counsel colloquy." 2022 WL
7824450, at *6.
Although the panel acknowledged in Solton that the defendant had requested to
represent himself several times throughout the proceedings, it found that "the record has
no explicit waiver of his right to counsel, let alone a knowing and intelligent waiver, until
the pretrial conference." 2022 WL 7824450, at *6. The panel further found that this
constituted a structural error "that is not cured because [the defendant] finally knowingly
and intelligently waived his right to counsel before the jury trial." 2022 WL 7824450, at
*7. Thus, the panel reversed the defendant's convictions and remanded the case for a new
proceeding "commencing with a preliminary hearing." 2022 WL 7824450, at *7.
As discussed above, "the Sixth Amendment guarantees a defendant the right to
have counsel present at all 'critical' stages of the criminal proceedings." Montejo v.
Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). The United
States Supreme Court has identified the critical stages of a criminal proceeding as those
that hold significant consequences for the accused. Bell v. Cone, 535 U.S. 685, 695-96,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); see also Rothgery v. Gillespie County, 554
U.S. 191, 212 & n.16, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008). Moreover, the right to
counsel entails "the right of the accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 656,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Consequently, a defendant "is entitled to
counsel at any proceeding where an attorney's assistance may avoid the substantial
11
prejudice that could otherwise result from the proceeding." United States v. Collins, 430
F.3d 1260, 1264 (10th Cir. 2005) (citing Coleman v. Alabama, 399 U.S. 1, 9, 90 S. Ct.
1999, 26 L. Ed. 2d 387 [1970]).
Here, during the 14-month period that Allen represented himself without an
adequate determination of whether he had knowingly and intelligently waived his right to
counsel, he appeared pro se at several hearings. We find at least two of these hearings to
have been critical stages of the criminal proceedings. First, Allen represented himself at a
competency hearing held on March 23, 2018, at which the district court ordered Allen to
stand trial. Second, Allen represented himself at a hearing held on May 22, 2018, at
which the district court considered his motion to dismiss the charges filed against him
and also considered a K.S.A. 60-455 motion filed by the State. We note that although
Allen had standby counsel available at these hearings, this does not equate to the
assistance of counsel as required by the Sixth Amendment. See Vann, 280 Kan. at 793.
We recognize that the Kansas Supreme Court has held that a "psychiatric
examination of the defendant is not a critical stage during which defendant has a
constitutional right to have counsel present." State v. Mattox, 305 Kan. 1015, 1054, 390
P.3d 514 (2017). Likewise, our Supreme Court has held that a hearing to determine
whether a competency hearing is to be held is not a critical stage. State v. Gross, 308
Kan. 1, 15, 417 P.3d 1049 (2018). But we are aware of no Kansas cases that address the
issue of whether a competency hearing itself is a critical stage of a criminal proceeding at
which a defendant has a constitutional right to be represented by counsel. However, it is
important to recognize that the United States Court of Appeals for the Tenth Circuit as
well as several other federal appellate courts have held that a competency hearing is a
critical stage. See United States v. Collins, 430 F.3d 1260, 1264 (10th Cir. 2005); see also
United States v. Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015); United States v. Ross, 703
F.3d 856, 874 (6th Cir. 2012); Raymond v. Weber, 552 F.3d 680, 684 (8th Cir. 2009);
12
Appel v. Horn, 250 F.3d 203, 215 (3d Cir. 2001); United States v. Klat, 156 F.3d 1258,
1262 (D.C. Cir. 1998); United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992).
We agree that a competency hearing is a critical stage of a criminal proceeding
because of the substantial prejudice that could result from such a hearing without
representation by counsel. Similarly, we find that a hearing on a motion to dismiss is a
critical stage of a criminal proceeding. Solton, 2022 WL 7824450, at *5. Because there
had not yet been an adequate determination of whether Allen had knowingly and
intelligently waived his right to counsel at the time these hearings were held, the district
court erred in allowing him to represent himself at these critical stages of the criminal
proceedings. Likewise, because these hearings constitute critical stages of the criminal
proceedings, we find the error is structural in nature and could not be cured by Allen's
subsequent knowing and intelligent waiver of his right to counsel prior to trial. Jones, 290
Kan. at 382 ("A violation of a Sixth Amendment right to counsel is subject to structural
error analysis.").
As a result, we conclude that we are duty-bound to reverse Allen's convictions.
Accordingly, we remand this case to the district court for further proceedings. In light of
this decision, it is not necessary for us to address the remaining issues presented on
appeal.
Reversed and remanded with directions.
***
MALONE, J., concurring: I concur that the result reached by the majority is
required under Kansas caselaw including State v. Burden, 311 Kan. 859, 863, 467 P.3d
495 (2020); State v. Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006); State v. Buckland,
245 Kan. 132, 137, 777 P.2d 745 (1989); and especially State v. Jones, 290 Kan. 373,
13
382-83, 228 P.3d 394 (2010). Kansas caselaw establishes that any violation of a
defendant's right to counsel at a critical stage of the prosecution is structural error. But I
think there should be room for harmless error analysis when there is an inadequate waiver
of counsel at a pretrial hearing, provided the defendant adequately waives counsel (or is
represented by counsel) by the time the case proceeds to trial or plea.
Anthony Darryl Allen insisted on representing himself at the end of his
competency hearing on May 11, 2017, but the record is clear that the district court did not
obtain an adequate waiver of counsel at that hearing. The district court later obtained an
adequate waiver of counsel from Allen at a pretrial hearing on July 11, 2018, after
making sure that Allen understood the nature of the charges, the significance of the
proceedings, the range of potential punishment, and the dangers of self-representation.
The district court also covered Allen's rights and obtained a knowing and intelligent
waiver of counsel at the pretrial conference on September 13, 2019. By the time Allen's
case proceeded to jury trial, he had adequately waived his right to counsel, and then he
decided to invoke his right to counsel on the second day of trial.
The problem is that in the 14-month interim from May 11, 2017, to July 11, 2018,
Allen represented himself at some critical pretrial hearings without adequately waiving
his right to counsel. Jones holds such a violation is structural error. 290 Kan. at 382-83.
Jones is slightly distinguishable because there the district court violated the defendant's
right to self-representation at the preliminary hearing. Here, the district court violated
Allen's right to counsel at other critical pretrial hearings by allowing him to represent
himself without a knowing and intelligent waiver of counsel. But both rights emanate
from the right to counsel under the Sixth Amendment to the United States Constitution,
so the result must be the same. A Sixth Amendment violation of the right to counsel at a
critical stage of the prosecution is structural error and cannot be considered harmless.
14
A critical stage of the prosecution is one that holds significant consequences for
the accused. Bell v. Cone, 535 U.S. 685, 695-96, 122 S. Ct. 1843, 152 L. Ed. 2d 914(2002). Allen represented himself at two critical stages of the prosecution without having
made an adequate waiver of counsel. First, Allen represented himself at a competency
hearing on March 23, 2018, at which the district court ordered Allen competent to stand
trial. Second, Allen represented himself at a hearing on May 22, 2018, at which the
district court considered Allen's pro se motion to dismiss the charges filed against him,
and the court also considered a K.S.A. 60-455 motion filed by the State.
Most courts that have addressed the subject hold that a competency hearing is a
critical stage of the prosecution, and I agree. But Allen's competency hearing on March
23, 2018, was his third competency hearing in the case, and the district court found Allen
competent to stand trial at each hearing. The district court almost always adopts the
findings from the court-ordered mental health evaluation at a competency hearing, and
the presence of legal counsel rarely will affect the outcome of the hearing. I also agree
that a hearing on a motion to dismiss usually would be a critical stage. But here, the
district court denied Allen's pro se motion to dismiss "for lack of evidence outside of
hearsay statements" because the motion had no merit; Allen having counsel would have
made no difference. And as for the State's K.S.A. 60-455 motion, the record reflects it
was denied. So, in Allen's case, the record reflects that the pretrial violation of his right to
counsel had no prejudicial effect on the outcome of the criminal proceedings against him.
Errors are structural when they defy analysis by harmless error standards because
they affect the framework within which the trial proceeds. Arizona v. Fulminante, 499
U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). The United States Supreme
Court has identified "a 'very limited class of cases'" involving structural errors, including:
(1) total deprivation of counsel; (2) lack of an impartial trial judge; (3) denial of the right
to self-representation at trial; (4) violation of the right to a public trial; (5) erroneous
reasonable doubt instruction; and (6) unlawful exclusion of members of defendant's race
15
from a grand jury. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d
35 (1999); see State v. Johnson, 310 Kan. 909, 914, 453 P.3d 281 (2019) (listing errors).
When a defendant's right to counsel or right to self-representation is denied at a
trial, then I agree that the Sixth Amendment violation is structural error. But a situation
like Allen's is different where the district court allowed Allen to represent himself at
some pretrial hearings without obtaining an adequate waiver of counsel, but later
obtained a valid waiver before the trial. Allen repeatedly insisted on representing himself
at the pretrial stages in the State's criminal prosecution against him. Significantly, Allen
did not change his mind about representing himself even after the district court gave him
the proper advisories. It was not until the second day of his jury trial—long after Allen
had been properly advised about his right to counsel—that Allen decided he would be
better off allowing his standby counsel to take over the proceedings.
In a situation like Allen's—where there is a right to counsel violation during
pretrial hearings that is later corrected before the trial or a plea—a court should be
allowed to examine the entire record and decide whether the violation denied the
defendant a fair disposition and resolution of the charges. The burden must be on the
State to show harmless error beyond a reasonable doubt. State v. Ward, 292 Kan. 541,
568-69, 256 P.3d 801 (2011) (holding a court will declare a constitutional error harmless
only when the party benefitting from the error shows beyond a reasonable doubt that the
error did not affect the outcome of the trial in light of the entire record). In Allen's case,
based on the record subject to our review, a good argument can be made that the pretrial
violation of his right to counsel did not affect the final disposition of his case.
Allen was a difficult defendant. He went through five appointed attorneys and
represented himself for much of the case before invoking his right to counsel on the
second day of trial. The district court allowed Allen to represent himself at critical
pretrial hearings without obtaining an adequate waiver of counsel, but later obtained a
16
valid waiver before the trial. Because the pretrial violation of Allen's right to counsel was
corrected before the trial, the violation does not defy analysis by harmless error
standards. But finding the violation in Allen's case to be harmless error cannot be squared
with the holding in Jones. If Allen's case is further reviewed, the Kansas Supreme Court
should reevaluate whether a pretrial violation of a defendant's right to counsel or right to
self-representation at a critical stage of the prosecution is subject only to structural error.
BRUNS, J., joins in the foregoing concurrence.
17