State v. Bass

1

NOT DESIGNATED FOR PUBLICATION

No. 119,572


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MCCLINTON BASS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 19, 2019.
Convictions reversed, sentences vacated, and case remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: McClinton Bass appeals his convictions and sentences for
attempted aggravated indecent liberties with a child and possession of cocaine. On
appeal, Bass' principal argument is that the district court violated his right to self-
representation under the Sixth Amendment to the United States Constitution. He also
contends that the district court erred by denying his presentence motion to withdraw his
guilty pleas. Moreover, he contends that the district court erred in calculating his criminal
history score. We consider only Bass' argument that the district court violated his Sixth
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Amendment right to self-representation. We conclude that the district court violated Bass'
right to self-representation resulting in structural error. As a result, we reverse Bass'
convictions, vacate his sentences, and remand the case to the district court for further
proceedings.

On September 13, 2017, the State charged Bass with one count of aggravated
indecent liberties with a child, a severity level 3 person felony in violation of K.S.A.
2017 Supp. 21-5506(b)(1), and one count of possession of cocaine, a severity level 5
nonperson felony in violation of K.S.A. 2017 Supp. 21-5706(a). Because Bass was
indigent, the district court appointed counsel—Elizabeth Kluzak—to represent Bass.

About two months later, Bass moved pro se to dismiss Kluzak as counsel. Bass
concluded in his pro se motion the following:

"[He was] seeking to retain new counsel, however. 'The constitution does not force a
lawyer upon a defendant.' Adams v. United States ex rel. McCann, 317 U.S. 269 (1942).
Therefore, [he] should not have to be forced by th[e] court to be continually represented
by [Kluzak,] who ha[d] failed [him] and violated his trust."

The district court held a hearing on Bass' motion. During the hearing, Bass told the
district court that "[he] would like either another counsel . . . or [he could] try to do it
[himself]." Further, Kluzak provided her reasons why she believed that she could still
represent Bass. When addressing Bass' complaints about access to discovery, Kluzak
noted that she "did hesitate [turning over discovery] at first because [she] was concerned
Mr. Bass might not be able to read and understand it. But [she] did ultimately turn it over
to [Bass] to review." At the end of the hearing, the district court denied Bass' motion,
ruling that Bass did not have a justifiable dissatisfaction with Kluzak's representation.
But, after the district court denied Bass' motion, Bass asked the district court: "I can't
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represent myself?" To which the district court replied: "If you wish to represent yourself,
sir, you'll need to file a separate motion. That's not what this motion asks for."

Following that hearing, Bass filed two more pro se motions. First, he moved to
dismiss Kluzak as counsel again. Second, he moved to represent himself and appoint
standby counsel.

The district court scheduled a combined hearing on Bass' pro se motions and Bass'
preliminary hearing. Of note, a different district court judge presided over this hearing
than his previous hearing where the judge told Bass to file a separate written motion on
self-representation. At the outset of this hearing, however, Bass and the State announced
that they had entered into a plea agreement. Under the plea agreement, Bass would plead
guilty to one count of attempted aggravated indecent liberties with a child, as well as one
count of possession of cocaine. Both parties agreed to recommend that the district court
sentence Bass to the mitigated presumptive sentences for both felony counts based on
Bass' criminal history and to also request that Bass' sentences run concurrently.

The district court then started to ask Bass questions about whether it was his desire
to enter into the plea agreement with the State:

"THE COURT: Okay, you are 55 years old and have three years of school; is that
right?
"THE DEFENDANT: Uh-huh.
. . . .
"THE COURT: All right, first of all, you had filed some motions. I think we need
to deal with those first. There [were] motions that were set actually technically for Friday,
but I was intending to deal with them today before we had the preliminary hearing. One
motion to replace counsel and then a motion to go ahead and represent yourself and
you're familiar with those motions because you prepared them; right?
"THE DEFENDANT: Right.
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"THE COURT: Okay, have you had a chance to discuss those issues with Ms.
Kluzak?
"THE DEFENDANT: Yes.
"THE COURT: All right, and I'm taking it by the way things have proceeded
here today that you're planning to go ahead and have her continue to represent you
through the plea and through sentencing; is that right?
"THE DEFENDANT: Correct.
"THE COURT: All right, so you've had a chance to fully discuss those issues
with her and is it your choice to go ahead and withdraw your motion to dismiss counsel
and your motion to represent yourself?
"THE DEFENDANT: Correct.
"THE COURT: Okay, you understand constitutionally you have the right to
represent yourself. I can't stop you. I would try, but I can't anyway. Ultimately, that's your
decision. As to who represents you, it is more complicated than that and I think you had a
previous hearing on that so you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Understanding all that, you wish to withdraw both those
motions?
"THE DEFENDANT: Right.
"THE COURT: Okay, then I'll show both those motions withdrawn."

Next, the district court engaged in the plea colloquy. Ultimately, the district court
accepted Bass' guilty pleas.

Before sentencing, Bass moved to withdraw his guilty pleas, arguing that he had
been misled. The district court appointed Bass new counsel. The district court held a
hearing on Bass' motion. At the hearing, both Bass and Kluzak testified. Both testified
openly about Bass' illiteracy. Bass explained that he had other inmates write his pro se
motions, which he would then sign. In the end, the district court denied Bass' motion,
finding that "[t]here [was] no evidence to support a finding that Mr. Bass was misled,
coerced, mistreated or taken advantage of before or at the time of his plea in the case."
Then, based on Bass' criminal history score of A, the district court sentenced Bass to a
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controlling term of 122 months' imprisonment followed by lifetime postrelease
supervision for his crimes of attempted aggravated indecent liberties with a child and
possession of cocaine.

Bass timely appealed.

Did the District Court Violate Bass' Right to Self-Representation?

Our Supreme Court has observed: "The extent of the right to assistance of counsel
and the related right to self-representation is a question of law over which this court
exercises unlimited review." State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902 (2018).

The Sixth Amendment of the United States Constitution right to have the
assistance of counsel in a criminal prosecution, like other constitutional rights, can be
waived: "The United States Supreme Court has held 'that the Sixth Amendment, as made
applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a
state criminal trial has an independent constitutional right to self-representation.'"
Bunyard, 307 Kan. at 470 (quoting State v. Vann, 280 Kan. 782, 793, 127 P.3d 307
[2006]). A defendant's right to represent himself or herself exists implicitly within the
Sixth Amendment. State v. Jones, 290 Kan. 373, 377, 228 P.3d 394 (2010). Further, a
defendant's right to self-representation applies in all "critical stages" of the criminal
process where the defendant also has a right to counsel. Jones, 290 Kan. at 379 (citing
Iowa v. Tovar, 541 U.S. 77, 80, 124 S. Ct. 1379, 158 L. Ed. 2d 209 [2004]).

As our Supreme Court has explained, defendants have a right to represent
themselves when they have made an intelligent and understanding waiver: "A defendant
who clearly and unequivocally expresses a wish to proceed pro se has the right to
represent himself or herself after a knowing and intelligent waiver of his or her right to
counsel." Jones, 290 Kan. at 376. To be a knowing and intelligent waiver, the district
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court must tell the defendant of "the dangers and disadvantages of self-representation, so
that the record will establish that 'he [or she] knows what he [or she] is doing and his [or
her] choice is made with eyes open.'" Faretta v. California, 422 U.S. 806, 835, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279, 63 S. Ct. 236, 87 L. Ed. 268 [1942]).

In determining if the defendant has made a knowing and intelligent waiver, "[a]
trial court may not measure a defendant's competence to waive his or her right to counsel
by evaluating the defendant's 'technical legal knowledge.'" Jones, 290 Kan. at 377
(quoting Godinez v. Moran, 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L. Ed. 2d 321
[1993]). Moreover, the district court should not consider if an attorney could better
represent the defendant. Bunyard, 307 Kan. at 470-71.

"A district judge's denial of a criminal defendant's right to forego counsel and
represent himself or herself is structural error requiring reversal of the defendant's
convictions." Bunyard, 307 Kan. 463, Syl.

On appeal, Bass argues that the district court violated his Sixth Amendment right
to self-representation when it declined to consider his request for self-representation.
Bass asserts that once he asked the district court to represent himself following the denial
of his request for new counsel, the law required the district court to tell him about the
dangers and disadvantages of self-representation. Bass maintains that no written motion
requirement exists for a defendant to assert the right to self-representation. Moreover,
Bass argues that his later decision to withdraw his written pro se motion for self-
representation does not render the district court's previous error harmless. In making his
arguments, Bass relies primarily on our Supreme Court decisions in Bunyard and Jones,
asserting those cases are comparable to his case.

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The State argues that the district court did not violate Bass' Sixth Amendment
right to self-representation because Bass never made an unequivocal request to represent
himself. The State asserts that Bass merely suggested representing himself as an
alternative to the dismissal of Kluzak. The State further asserts that Bass' question to the
district court—"I can't represent myself?"—does not constitute an unequivocal request
for self-representation. Then, the State argues that because Bass withdrew his written pro
se motion for self-representation, the entire issue of whether the district court violated
Bass' Sixth Amendment right to self-representation is moot.

Nevertheless, we cannot endorse the State's attempt to avoid the constraints placed
on us by our Supreme Court precedents in Bunyard and Jones. Those two decisions
establish that the district court violated Bass' Sixth Amendment right to self-
representation. First, the district court violated Bass' right to self-representation the
moment it did not advise Bass about the perils of proceeding pro se after Bass clearly and
unequivocally told the district court he wanted to represent himself. Second, the district
court's imposition of a written motion requirement on Bass constituted a further violation
of Bass' Sixth Amendment right to self-representation.

Our Supreme Court Precedents

In Bunyard, the district court held a hearing on a Friday, three days before
Bunyard's criminal trial. He told the district court, "'I want it on the record I wish to
represent myself unequivocally.'" 307 Kan. at 466. Bunyard made this request because he
believed that his counsel was not advancing certain arguments. The district court
responded that it would not consider an oral motion. Further, it told Bunyard that if he
wanted it to consider his argument for self-representation, he must file a written motion.
The district court required Bunyard to file a written motion even though Bunyard told the
district court that the jail would not allow him to mail the written motion on the weekend.
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As a result, Bunyard was unable to file a written motion over the weekend before the start
of his trial.

Yet, when Bunyard's trial began on Monday, the district court noted that over the
course of his case, Bunyard had filed several pro se motions where he "'purport[ed] to
represent [himself].'" 307 Kan. at 468. Bunyard's counsel explained to the district court
that after discussing the matter with Bunyard, Bunyard wished to withdraw all of his pro
se motions. The district court asked Bunyard if this was correct, and Bunyard agreed it
was correct. As a result, the district court considered Bunyard's pro se motions
withdrawn, and Bunyard proceeded to trial with counsel. The jury found Bunyard guilty
on all counts.

On appeal to our Supreme Court, Bunyard argued that his convictions should be
reversed because the district court violated his Sixth Amendment right to self-
representation. In agreeing that the district court had violated Bunyard's right to self-
representation, our Supreme Court explained what a court should not do when
considering a defendant's right to self-representation:

"Bunyard filed multiple pro se motions during the pendency of his prosecution. Then—
admittedly at the eleventh hour and only when prompted by what may have been
intended as a rhetorical question by an all-but-fully-exasperated trial judge—Bunyard
made more than one clear statement that he wished to proceed pro se. Despite this
expressly 'unequivocal' invocation of his right to self-representation, the district judge did
not counsel Bunyard with a view toward ascertaining Bunyard's informed wishes. Rather,
the judge put off addressing Bunyard's request, saying that he would not address it at all
unless Bunyard filed a written motion. Bunyard had no practical way to file a written
motion over the weekend, and the judge's demand for such a motion appeared to leave
Bunyard . . . without recourse on the issue. In this context, Bunyard's silence on Monday
when other pro se motions were heard was understandable. He had been left with a firm
impression that he would not be permitted to represent himself. His failure to reassert his
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right to do so in such circumstances and his allowance of counsel's representation during
the trial did not amount to an implicit decision not to pursue self-representation.
"Bunyard's pretrial requests to represent himself were not, as the State argues,
'simply based on his desire to ensure that certain arguments were advanced on his behalf.'
The record certainly demonstrates that he believed he had information and argument not
being explained on Friday by his counsel, and that prompted his interruption of the
proceedings. But, at that point, the judge presented Bunyard with a choice: Either allow
counsel to proceed without interference or represent yourself. Bunyard chose the latter.
And his choice did not change after his consultation with counsel. Instead, he
'unequivocally' repeated his choice on the record. At that point the law required that he
be advised about the perils of proceeding pro se and then permitted to do so if he made a
knowing and intelligent waiver of his right to counsel. Instead, the judge told Bunyard
that the subject of self-representation would not be addressed on Friday and erected a
writing requirement barrier that was virtually guaranteed to thwart Bunyard's express
intention. The judge then ruled on the very motion on which Bunyard had tried to be
heard, and he never took up the subject of self-representation again. Using the words of
the Court of Appeals panel but reaching the opposite conclusion, we hold that regardless
of whether there was a 'deliberate undermining' of Bunyard's right to represent himself,
there was certainly a 'functional' undermining of that right. See 2016 WL 1719607, at
*4." (Emphases added.) 307 Kan. at 477-78.

In Jones, at Jones' preliminary hearing, Jones' attorney told the court that his client
wanted to represent himself at the hearing. The district court denied that motion because
Jones was not trained in the law. That district court then proceeded with Jones'
preliminary hearing. A different district court judge presided over a renewed hearing on
Jones' motion to represent himself at the start of Jones' jury trial. After a lengthy
discussion about whether Jones still wanted to represent himself, Jones decided to
proceed with appointed counsel. The jury convicted Jones on all counts.

On appeal to this court, this court held that the district court judge at the
preliminary hearing violated Bass' right to self-representation, but the error was harmless
because the events of the preliminary hearing had little likelihood of changing the
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outcome of Jones' trial. State v. Jones, 40 Kan. App. 2d 1146, 1155, 201 P.3d 710 (2009),
rev'd 290 Kan. 373. Our Supreme Court reversed this court because the harmless error
analysis does not apply in cases where a district court violated a defendant's right to self-
representation. 290 Kan. at 382.

First, our Supreme Court held that the district court erred when it denied Jones'
motion because of Jones' lack of a college education and legal training. Our Supreme
Court explained that the only inquiry that mattered was whether Jones made a knowing
and intelligent waiver. 290 Kan. at 378. Second, our Supreme Court considered whether
Jones had a right to self-representation at his preliminary hearing. The Jones court held:
"The reasoning by the Supreme Court in Faretta supports the conclusion that the right to
self-representation extends to all phases of the criminal proceeding." 290 Kan. at 379.
This meant that a preliminary hearing necessarily constituted a critical stage of a
defendant's criminal proceedings where the defendant had a right to self-representation.
Jones, 290 Kan. at 379.

The Jones court concluded by explaining that harmless error analysis does not
apply when a district court denies a defendant's right to self-representation during a
critical stage of the defendant's criminal proceeding:

"'Since the right of self-representation is a right that when exercised usually increases the
likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to
"harmless error" analysis. The right is either respected or denied; its deprivation cannot be
harmless.' McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 79 L. Ed. 2d 122, 104 S. Ct. 944
(1984). If a defendant's right to represent himself or herself is violated, the defendant is
entitled to a new trial regardless of whether he or she can demonstrate prejudice. See, e.g.,
Flanagan v. United States, 465 U.S. 259, 268, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984)
(violating Sixth Amendment right to represent oneself does not require showing of
prejudice to defense in order to obtain reversal)." 290 Kan. at 382.

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Thus, the Jones court reversed Jones' convictions because the district court
committed structural error. 290 Kan. at 382-83.

Violation of Bass' Right to Self-Representation

Turning our focus back to Bass' case, we must first consider the State's argument
that Bass did not make an unequivocal request to represent himself. The State argues that
Bass could not have made a clear and unequivocal statement to represent himself because
he made comments about representing himself as an alternative should the district court
deny his motion to dismiss Kluzak and appoint new counsel. In other words, the State
argues that a motion on his dissatisfaction with Kluzak's representation could not
constitute a clear and unequivocal statement that Bass wanted to represent himself. The
State also argues that Bass' question about representing himself at the close of the hearing
cannot be considered a clear and unequivocal statement.

Although "'a defendant's request to be relieved of counsel in the form of a general
statement of dissatisfaction with his attorney's work does not amount to an invocation of
the Faretta right to represent oneself,''' State v. Hollins, 9 Kan. App. 2d 487, 489, 681
P.2d 687 (1984) (quoting Moreno v. Estelle, 717 F.2d 171, 176 [5th Cir. 1983]), Bass
made more than a general statement about his dissatisfaction with Kluzak. To begin with,
the State ignores that in his pro se motion to dismiss Kluzak as counsel, Bass also
asserted that if the district court denied his motion, he would then represent himself.
Indeed, this is a fact that the district court also ignored because it told Bass he must file a
written motion.

In his pro se motion to dismiss Kluzak as counsel, Bass quoted the United States
Supreme Court case of Adams v. United States ex rel. McCann for the proposition that
"the Constitution does not force a lawyer upon a defendant." 317 U.S. at 279. In
Faretta—the case where the United States Supreme Court held that a defendant's Sixth
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Amendment's right to self-representation is made applicable to the states through the
Fourteenth Amendment—the Court relied on Adams as precedent for the rule that the
Constitution does not force lawyers upon defendants. 422 U.S. at 814-15.

Accordingly, despite the State's argument to the contrary, Bass' pro se motion to
dismiss Kluzak as counsel included more than a general statement of dissatisfaction with
Kluzak's representation. Instead, within his pro se motion, Bass told the district court that
his relationship with Kluzak was irrevocably broken, that he wanted appointment of new
counsel, but if the district court denied those requests, that he would represent himself.
Indeed, Bass repeated his intention to represent himself at the hearing on his motion.
Again, Bass spoke twice on this issue at the hearing: First, when explaining his motion,
Bass told the district court, "[he] would like either another counsel . . . or [he could] try to
do it [himself]." Second, after the district court denied his request for new counsel, Bass
asked the district court whether he could represent himself since he did not want to be
represented by Kluzak.

Bass' comment and question significantly differ from other cases where courts
have found that the defendants were simply complaining about their current attorney
instead of definitively requesting to represent themselves. For example, in Hollins, this
court noted that Hollins had made no comments about self-representation and had not
requested new counsel. Instead, Hollins simply complained about his attorney. 9 Kan.
App. 2d at 489. Furthermore, in United States v. Burton, 698 Fed. Appx. 959, 960 (10th
Cir. 2017) (unpublished opinion), the Tenth Circuit Court of Appeals held that Burton did
not clearly and unequivocally invoke her right to self-representation by stating that
counsel had no right to speak for her because she had fired him; the court explained that
Burton's statement could be interpreted as simply wanting a new attorney.

But in this case, both through his pro se motion and comment at the hearing, Bass
told the district court that he intended to represent himself if the district court did not
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appoint him new counsel. Then, after the district court denied Bass' request for new
counsel, Bass followed up with his question about representing himself. Although Bass
posed a question to the district court, his question explicitly told the district court that
because it denied his motion, he now wanted to represent himself. Moreover, the district
court implicitly acknowledged that Bass wanted to represent himself by telling Bass that
if he wanted to represent himself, he must file a written motion. Indeed, by placing this
written impediment to Bass' self-representation, the district court was acknowledging that
Bass was requesting to represent himself. Thus, the district court's response establishes
that it understood Bass' rhetorical question to be an unequivocal request to represent
himself.

In short, Bass' statements and question were distinct from any dissatisfaction he
had with Kluzak. Bass plainly told the district court through his statements and question
that he wanted to represent himself. Thus, despite the State's argument to the contrary,
Bass made a clear and unequivocal request to represent himself.

Yet, the district court did not directly answer Bass' question about self-
representation. Instead, it told Bass he must file a motion in which he requested to
represent himself. When we compare the preceding facts of Bass' case to the facts in
Bunyard, there are striking similarities.

First, before the hearings where Bass and Bunyard made their unequivocal
requests for self-representation, both Bass and Bunyard had filed pro se motions where
they requested to represent themselves. Second, in this case and in Bunyard, the district
courts imposed a written motion requirement on the defendants. Third, in this case and in
Bunyard, the district courts imposed the writing requirement when the defendants had no
guarantee of complying with the writing requirement. For Bunyard, he had no guarantee
of filing a pro se motion because the jail did not send out mail on weekends. For Bass, he
had no guarantee of filing a pro se motion because he was illiterate.
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At this juncture, we must note that Bass was filing written pro se motions before
the district court imposed the written motion requirement. Nevertheless, it is undisputed
that Bass is illiterate. At his hearing to withdraw pleas, Bass explained that he would seek
the help of other inmates when filing pro se motions; thus, absent receiving help from
another inmate, Bass could not comply with the district court's written motion
requirement. Additionally, the district court judge who denied Bass' request to appoint
new counsel and imposed the written motion requirement on Bass should have known
that Bass could have significant difficulties complying with such a requirement. While
defending herself against Bass' motion to dismiss her as counsel, Kluzak stated that she
had concerns turning over discovery because Bass "might not be able to read" the
discovery.

Although illiteracy is not an impediment to self-representation, "[t]he inability to
read and write will handicap the individual deprived of a basic education each and every
day of his life." Plyler v. Doe, 457 U.S. 202, 222, 102 S. Ct. 2382, 72 L. Ed. 2d 786
(1982). Here, by imposing a written motion requirement on Bass, the district court
limited Bass' access to his constitutional right. Absent another inmate helping him file
another pro se motion in which he requested to represent himself, Bass would have been
unable to comply with the district court's written motion requirement because of his
illiteracy. Consequently, the district court's written motion requirement was inconsistent
with Bass' Sixth Amendment right to self-representation based on Bass' illiteracy.

Moreover, it was also inconsistent with Bass' Sixth Amendment right to self-
representation simply because the Sixth Amendment imposes no written motion
requirement. Again, in Bunyard, our Supreme Court explicitly held that no written
motion requirement for self-representation exists: "'[A] district court cannot effectively
filibuster a criminal defendant's spontaneous request for self-representation by refusing to
rule on the request or by imposing requirements that the defendant reassert that request in
15

a detailed written form or in successive hearings to secure a ruling.'" 307 Kan. at 469
(quoting State v. Bunyard, No. 112,645, 2016 WL 1719607, at *4 (Kan. App. 2017)
(unpublished opinion), (rev'd on other grounds). 307 Kan. at 463. Moreover, in Jones,
our Supreme Court never mentioned a written motion requirement, explaining that "[a]
defendant who clearly and unequivocally expresses a wish to proceed pro se has the right
to represent himself or herself after a knowing and intelligent waiver of his or her right to
counsel." 290 Kan. at 376.

As discussed in Bunyard, the creation of the written motion requirement can
undermine a defendant's confidence that he or she will be allowed to invoke the right to
self-representation. Here, especially because Bass had already filed a written motion
where he requested to represent himself should the district court deny his request for new
counsel, the district court's creation of the written motion requirement likely undermined
Bass' belief that he would ever be allowed to represent himself.

Simply put, the district court's imposition of a written motion requirement on Bass
directly contradicts our Supreme Court precedent. When Bass questioned whether he
could represent himself, instead of telling Bass to file a written motion, "the law required
that [Bass] be advised about the perils of proceeding pro se and then permitted to do so if
he made a knowing and intelligent waiver of his right to counsel." See Bunyard, 307 Kan.
at 477. Most importantly, the district court's failure to advise Bass of the perils of
proceeding pro se when he questioned the court about representing himself resulted in
structural error.

But the State contends that because Bass withdrew his pro se motion to represent
himself at the hearing where he ultimately pled guilty, any of Bass' complaints about the
district court violating his constitutional right to self-representation are moot. The State's
argument, however, is contrary to our Supreme Court precedent in Bunyard and Jones.
Both our Supreme Court's decisions in Bunyard and Jones support that once the district
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court violates a defendant's right to self-representation, that error cannot be deemed
harmless. Once more, the Bunyard court held: "A district judge's denial of a criminal
defendant's right to forego counsel and represent himself or herself is structural error
requiring reversal of the defendant's convictions." 307 Kan. 463, Syl. Additionally, the
Jones court held:

"Since the right of self-representation is a right that when exercised usually
increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not
amenable to harmless error analysis. The right is either respected or denied; its
deprivation cannot be harmless. If a defendant's right to represent himself or herself is
violated, the defendant is entitled to a new trial regardless of whether he or she can
demonstrate prejudice." 290 Kan. 373, Syl. ¶ 6.

Our Supreme Court's holdings in Bunyard and Jones support that the moment the
district court violates a defendant's right to self-representation, the district court commits
structural error that is not amenable to harmless error analysis.

Notwithstanding the preceding analysis, Bass' case mirrors the Jones case in
respect to Jones' decision to withdraw his request to represent himself. That is, both Bass
and Jones had self-representation requests before the district court, the district court
wrongly refused to consider those requests, but at a later hearing both Bass and Jones
withdrew their self-representation requests after some discussion with an entirely
different district court judge. In Jones, our Supreme Court determined that Jones'
withdrawal of his request to represent himself at his trial did not render the district court's
previous error at the preliminary hearing harmless (1) because Jones had a constitutional
right to represent himself at the preliminary hearing and (2) because structural error
cannot be harmless. 290 Kan. at 379-83.

Similarly, Bass had a constitutional right to represent himself upon his request to
the district court. As Bass points out in his brief, he was in the middle of plea
17

negotiations when he requested to represent himself. It is well established that plea
negotiations constitute a critical stage of a defendant's criminal proceedings. See Lafler v.
Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) (holding that
"[d]efendants have a Sixth Amendment right to counsel, a right that extends to the plea-
bargaining process"). Moreover, as previously noted, the Jones court interpreted Faretta
to mean that "the right to self-representation extend[ed] to all phases of the criminal
proceeding." Jones, 290 Kan. at 379. Thus, Bass had a right to represent himself during
plea negotiations.

Nevertheless, Kluzak engaged in plea negotiations during the time between the
district court's violation of Bass' right to self-representation and the hearing on Bass'
written motion for self-representation. Without Kluzak's representation, it is highly
questionable whether Bass would have been able to obtain a plea agreement with the
State. Regardless, because Bass was not allowed to represent himself during plea
negotiations, this resulted in structural error.

Because we reverse Bass's convictions, and vacate Bass' sentences, consideration
of Bass' remaining arguments are moot. See Jones, 290 Kan. at 383.

Convictions reversed, sentences vacated, and case remanded for further
proceedings.