State v. Miller

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No. 102,677

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN MILLER,
Appellant.


SYLLABUS BY THE COURT

1.
The extent of a criminal defendant's right to the assistance of counsel is a question
of law over which an appellate court exercises unlimited review.

2.
Kansas law requires that at a probation violation hearing the defendant shall have
the right to be represented by counsel and shall be informed by the judge that, if the
defendant is financially unable to obtain counsel, an attorney will be appointed to
represent the defendant.

3.
Kansas courts have adopted a three-step framework to determine whether a
defendant's waiver of counsel is knowing and intelligent. First, a defendant should be
advised of both the right to counsel and the right to appointment of counsel in cases of
indigency. Second, the defendant must possess the intelligence and capacity to appreciate
the consequences of the waiver. Third, the defendant must comprehend the nature of the
charges and proceedings, the range of punishment, and all facts necessary to a broad
understanding of the case. Furthermore, a knowing and intelligent waiver of counsel
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requires that the defendant be informed of the dangers and disadvantages of self-
representation.

4.
The Kansas Supreme Court has determined that a violation of the defendant's right
to counsel is structural error which is not amenable to harmless error analysis.

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed August 20, 2010.
Reversed and remanded.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Steve Six,
attorney general, for appellee.

Before MALONE, P.J., GREEN and BUSER, JJ.

MALONE, J.: Brian Miller appeals the district court's revocation of his probation.
The only issue on appeal is whether the district court committed reversible error when it
failed to properly advise Miller of his right to an attorney at his probation violation
hearing. Because the district court violated K.S.A. 2009 Supp. 22-3716(b) by failing to
inform Miller that he had the right to be represented by counsel at the probation violation
hearing and that an attorney would be appointed to represent him if he was financially
unable to obtain counsel, we reverse and remand for a new hearing.

On March 6, 2007, Miller pled guilty to aggravated assault, a severity level 7
person felony; battery, a class B person misdemeanor; and forgery, a severity level 8
nonperson felony. On April 16, 2007, the district court imposed an underlying sentence
of 27 months' imprisonment on the felony convictions and a consecutive 6-month jail
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sentence on the misdemeanor conviction. The district court placed Miller on probation on
the felony convictions for 24 months.

Through the sentencing hearing, Miller was represented by a public defender who
was allowed to withdraw on July 19, 2007. On August 16, 2007, a private attorney
entered an appearance on behalf of Miller. On May 23, 2008, the State filed a motion to
revoke Miller's probation. Miller appeared with his retained counsel at a hearing on
September 2, 2008, and the district court revoked and reinstated Miller's probation.

On February 19, 2009, the State filed a second motion to revoke probation,
alleging Miller had been arrested for domestic battery and had failed to report the arrest
to his probation officer. Miller appeared twice without counsel and requested a
continuance of the probation violation hearing in order to retain counsel. The district
court continued the hearing but warned Miller after the second request that there would
be no further continuances.

On May 4, 2009, Miller again appeared in district court without an attorney. Miller
explained that he had attempted to contact an attorney but nevertheless had been unable
to retain an attorney for the hearing. Miller acknowledged that the matter had been
pending for a long time, and he informed the district court that he would represent
himself at the hearing. The State called Kathy Ryan, Miller's probation officer, to testify
at the hearing. Ryan testified that Miller had been arrested for domestic battery in Saline
County, and she did not hear about the arrest until 2 months later when she was informed
by the Saline County supervising officer that Miller had been arrested. Miller did not
cross-examine Ryan, and he did not testify or call any witnesses at the hearing. After
hearing the evidence, the district court revoked Miller's probation and ordered him to
serve his original sentence. Miller timely appealed.

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Miller claims the district court committed reversible error when it failed to
properly advise him of his right to an appointed attorney at his probation violation
hearing. Miller relies on K.S.A. 2009 Supp. 22-3716(b), which provides that a defendant
shall have the right to be represented by counsel at a probation violation hearing, and the
judge shall inform the defendant that an attorney will be appointed if the defendant is
financially unable to obtain counsel.

Interpretation of a statute is a question of law over which an appellate court has
unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). Furthermore,
the extent of a criminal defendant's right to the assistance of counsel is a question of law
over which an appellate court exercises unlimited review. State v. Jones, 290 Kan. 373,
376, 228 P.3d 394 (2010).

While a defendant at a probation violation hearing is not entitled to every
constitutional protection provided in criminal proceedings, the defendant is entitled to
some minimum due process protections including assistance of counsel. Black v.
Romano, 471 U.S. 606, 612, 85 L. Ed. 2d 636, 105 S. Ct. 2254 (1985). Kansas law
requires that at a probation violation hearing: "The defendant shall have the right to be
represented by counsel and shall be informed by the judge that, if the defendant is
financially unable to obtain counsel, an attorney will be appointed to represent the
defendant." K.S.A. 2009 Supp. 22-3716(b).

There is no question that the district judge failed to inform Miller that he had the
right to be represented by counsel at the probation violation hearing and that an attorney
would be appointed to represent him if he was financially unable to obtain counsel.
However, Miller expressed a desire to represent himself at the hearing. A defendant who
clearly and unequivocally expresses a desire to proceed pro se has the right to self-
representation after a knowing and intelligent waiver of the right to counsel. Jones, 290
Kan. at 376; State v. Vann, 280 Kan. 782, Syl. ¶ 3, 127 P.3d 307 (2006).
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Kansas courts have adopted a three-step framework to determine whether a
defendant's waiver of counsel is knowing and intelligent. First, a defendant should be
advised of both the right to counsel and the right to appointment of counsel in cases of
indigency. Second, the defendant must possess the intelligence and capacity to appreciate
the consequences of the waiver. Third, the defendant must comprehend the nature of the
charges and proceedings, the range of punishment, and all facts necessary to a broad
understanding of the case. State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745 (1989);
State v. Mixon, 27 Kan. App. 2d 49, 51, 998 P.2d 519, rev. denied 269 Kan. 938 (2000).
Furthermore, a knowing and intelligent waiver of counsel requires that the defendant be
informed of the dangers and disadvantages of self-representation. Jones, 290 Kan. at 376;
Vann, 280 Kan. 782, Syl. ¶ 3.

Here, as we have previously discussed, the district judge failed to advise Miller of
his right to counsel and that an attorney would be appointed to represent him at the
hearing if he was indigent. The district judge also failed to make a record as to whether
Miller understood the nature of the hearing and the punishment he was facing if the judge
revoked his probation. The district judge also failed to inform Miller on the record of the
dangers and disadvantages of self-representation. Based on the record for our review, we
conclude that Miller did not knowingly and intelligently waive his right to counsel at the
probation violation hearing.

The State points out that Miller was no stranger to the criminal justice system, as
he had 16 prior convictions. Also, Miller had been through the probation violation
process before, and he knew he was facing a prison sentence if his probation was
revoked. On the other hand, the record does not reflect that Miller was aware he could
ask the district court to serve a lesser sentence if his probation was revoked. See K.S.A.
2009 Supp. 22-3716(b); Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007). It is
likely that Miller would have made this request had he been represented at the hearing by
counsel. In any event, a district court may not measure a defendant's competence to waive
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his or her right to counsel by evaluating the defendant's technical legal knowledge. Jones,
290 Kan. at 382. More importantly, the Kansas Supreme Court has determined that a
violation of the defendant's right to counsel is structural error which is not amenable to
harmless error analysis. Jones, 290 Kan. at 382; Vann, 280 Kan. at 793.

We hold the district court violated K.S.A. 2009 Supp. 22-3716(b) by failing to
inform Miller that he had the right to be represented by counsel at the probation violation
hearing and that an attorney would be appointed to represent him if he was financially
unable to obtain counsel. Furthermore, we hold the record is insufficient to establish that
Miller knowingly and intelligently waived his right to counsel. Accordingly, we reverse
the district court's decision to revoke Miller's probation and remand for a new hearing.

Reversed and remanded.