State v. Lloyd

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NOT DESIGNATED FOR PUBLICATION

No. 117,093

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TODD J. LLOYD,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed November 17, 2017.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., LEBEN, J., and KEVIN P. MORIARTY, District Judge, assigned.

PER CURIAM: This is Todd J. Lloyd's second appeal from the revocation of his
probation following his convictions of aggravated burglary and theft. In State v. Lloyd, 52
Kan. App. 2d 780, 375 P.3d 1013 (2016), we remanded Lloyd's case and instructed the
district court to apply the correct burden of proof in order to find whether Lloyd had
violated his probation. The district court held a new probation revocation hearing, applied
the correct burden of proof, found that Lloyd had violated his probation, and revoked the
probation and ordered Lloyd to serve his sentence. Now, Lloyd appeals again and claims
the district court erred in denying his request for self-representation at the probation
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revocation hearing. But because Lloyd's request for self-representation was untimely, we
conclude the district court did not abuse its discretion in denying the request.

FACTS

We will briefly review the factual and procedural history of Lloyd's case. On
February 1, 2013, Lloyd pled no contest to aggravated burglary and theft. The district
court sentenced Lloyd to 32 months' imprisonment but granted his request for a
dispositional departure to probation for 24 months. In April 2014, the State charged
Lloyd with kidnapping. The district court held a preliminary hearing and bound Lloyd
over for trial on kidnapping, finding probable cause that he had committed the crime.

As a result of the new kidnapping charge, the State filed a motion to revoke
Lloyd's probation. At the subsequent hearing, Lloyd stipulated only to the fact that he
was bound over for trial on the kidnapping charge. The State asked the district court to
revoke Lloyd's probation based on the probable cause finding made at the preliminary
hearing. The district court granted the State's motion and revoked Lloyd's probation.

On appeal, we vacated the district court's probation revocation order, holding that
the correct burden of proof at a probation revocation hearing is a preponderance of the
evidence, which is a higher standard than probable cause. 52 Kan. App. 2d at 783-84.
Thus, we remanded Lloyd's case for a new probation violation hearing, with directions
for the district court to apply the correct burden of proof. 52 Kan. App. 2d at 784.

On September 22, 2016, pursuant to the remand order, the district court held a new
probation violation hearing. Lloyd was represented by counsel at the hearing. While
Lloyd's previous probation revocation was on appeal, a jury had convicted Lloyd of
kidnapping. At the State's request, the district court took judicial notice of the kidnapping
conviction, as the judge who was presiding over the probation revocation hearing was the
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same judge who presided over Lloyd's kidnapping case. Relying on the fact that a jury
had found Lloyd guilty of kidnapping beyond a reasonable doubt, the district court found
that the State proved that he violated his probation by a preponderance of the evidence.

During the hearing, while defense counsel was making his arguments, Lloyd
interrupted the proceedings and made a request to represent himself. The district court
denied the request and told Lloyd that he could "talk when we come to disposition." Later
in the hearing, the district court permitted Lloyd to speak. Lloyd addressed the court and
argued at length that there was insufficient evidence to support his kidnapping conviction
because there was no evidence that Lloyd held the victim against her will. After hearing
from Lloyd, the district court indicated that it would take the disposition of the case under
advisement stating: "I want to think about the comments that have been made today."

On October 14, 2016, the district court held the disposition hearing. Lloyd did not
renew his request for self-representation at this hearing. After hearing from counsel, the
district court revoked Lloyd's probation and ordered him to serve his underlying sentence
with credit for time served. Lloyd timely filed a notice of appeal.

ANALYSIS

The only issue Lloyd raises on appeal is that the district court erred in denying his
request for self-representation at the probation revocation hearing. Specifically, Lloyd
argues that the district court erred by summarily denying this request without making the
appropriate inquiry. Conversely, the State argues that Lloyd's request was untimely; thus,
the district court did not abuse its discretion in denying his request.

Generally, the extent of the right to assistance of counsel, including the scope of
the right to self-representation, 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). But
as we will discuss in more detail herein, if the defendant's request for self-representation
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is untimely, the district court has discretion whether to grant the request. State v.
Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993). In this instance, we review the
district court's decision for an abuse of discretion. See Cromwell, 253 Kan. at 505.

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the district court; (2) the action is based on an error of
law; or (3) the action is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). The party asserting that the district court abused its discretion bears
the burden of showing such abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363
P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016).

The Sixth Amendment to the United States Constitution grants criminal
defendants the right to effective assistance of counsel. See Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "'The Sixth Amendment does
not provide merely that a defense shall be made for the accused; it grants to the accused
personally the right to make his defense.'" Jones, 290 Kan. at 379 (quoting Faretta v.
California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 [1975]). For a criminal
defendant to proceed pro se, the defendant must first clearly and unequivocally express
such a desire. Jones, 290 Kan. at 376. The defendant must then knowingly and
intelligently waive the right to counsel; however, the fact that the defendant is not
adequately trained in the law is not a sufficient ground to deny a defendant's request for
self-representation. 290 Kan. at 378.

K.S.A. 2016 Supp. 22-3716(b)(2) guarantees defendants the right to counsel
during probation revocation proceedings. The statute provides, in relevant part: "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." See State v. Galaviz, 296 Kan. 168, 175-76, 291
P.3d 62 (2012).
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In accordance with these authorities, we find that criminal defendants have a
statutory and constitutional right to counsel at probation revocation hearings. In turn, this
means that criminal defendants also have the right to self-representation at probation
revocation hearings. See Jones, 290 Kan. at 379. Before a district court grants or denies a
defendant's request for self-representation, a court must make a critical inquiry as to
whether the defendant's waiver of counsel is knowing and intelligent. 290 Kan. at 378. A
knowing and intelligent waiver requires that the defendant be informed of the dangers of
self-representation. 290 Kan. at 376. A denial of a defendant's right to self-representation
has been found to be structural error. 290 Kan. at 382.

All this being said, however, the defendant's right to self-representation is not
unqualified. For a criminal defendant to be guaranteed the right of self-representation, the
defendant must affirmatively assert that right before trial. When a criminal defendant
asserts the right of self-representation after the beginning of trial, the district court has
discretion whether to grant the request. Cromwell, 253 Kan. at 505 (citing United States
v. Mayes, 917 F.2d 457, 462 [10th Cir. 1990]).

While the Cromwell holding specifically refers to trials, we find that the principle
applies to a defendant's assertion of the right of self-representation made with respect to
probation revocation proceedings. Stated differently, to have an unqualified right to self-
representation at a probation revocation hearing, the defendant must make such a request
within a reasonable time before the hearing begins. As Lloyd did not ask to represent
himself until the middle of the probation revocation hearing, the district court had
discretion whether to grant the request. Our task on review is to determine whether the
district court abused its discretion in denying Lloyds request. 253 Kan. at 505.

Our Supreme Court has set forth a balancing test for determining whether a district
court abuses its discretion when denying a defendant's untimely assertion of the right of
self-representation at trial: "In exercising that discretion, a court should balance the
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alleged prejudice to defendant with 'disruption of the proceedings, inconvenience and
delay, and possible confusion of the jury,' and should also consider the reason for the
request and the quality of counsel's representation." Cromwell, 253 Kan. at 505 (quoting
Mayes, 917 F.2d at 462). The Cromwell court held that the district court did not abuse its
discretion in denying the defendant's request for self-representation—made after the
State's third witness had testified in a jury trial—reasoning that such a late request could
have been disruptive to the proceedings and confused the jury. 253 Kan. at 504-07.

Additionally, in State v. Cuddy, 22 Kan. App. 2d 605, 610, 921 P.2d 219 (1996),
this court provided a similar balancing test when a criminal defendant made an untimely
request for self-representation: "[A] trial court may consider the reasons for the motion
for self-representation; the quality of counsel's representation; the length and the stage of
the proceedings; and the potential disruption and delay which could be expected from
granting the motion." This court held that the district court did not abuse its discretion by
denying the defendant's motion for self-representation made the first day of a jury trial,
reasoning that the defendant presented no justification for his dissatisfaction with counsel
and that the defendant could have made his motion earlier. 22 Kan. App. 2d at 609-11.

We acknowledge that in City of Arkansas City v. Sybrant, 44 Kan. App. 2d 891,
901-04, 241 P.3d 581 (2010), this court held that the district court erred in denying the
defendant's request for self-representation made on the first day of a jury trial before the
jury panel had been seated for jury selection to begin. This court found that the district
court's apparent reason for denying the request based on the defendant's lack of legal
sophistication was not a valid ground for denying the right to self-representation, even if
the denial may have been in the defendant's best interests. 44 Kan. App. 2d at 903. The
facts of Sybrant are clearly distinguishable from the facts herein because in Sybrant the
district court considered and denied the defendant's request for self-representation on its
merits, and the record did not reflect that granting the request would have delayed the
trial proceedings or confused the jury. 44 Kan. App. 2d at 901-04.
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Here, Lloyd did not make his request for self-representation until the middle of the
probation revocation hearing. From the context of the hearing transcript, it appears that
Lloyd wanted to represent himself so he could argue that his kidnapping conviction was
based on insufficient evidence. While the district court did not allow Lloyd to disrupt the
middle of the proceedings, the court ultimately permitted Lloyd to make his arguments,
including his argument that his kidnapping conviction was based on insufficient
evidence. Lloyd fails to make any claim on appeal that there was some other issue he
would have raised had he been allowed to represent himself at the hearing.

The record reflects that Lloyd filed many pro se motions in this case, so he
certainly could have filed a timely motion to proceed pro se at the probation revocation
hearing. Instead, he waited until the middle of the hearing to attempt to assert his right of
self-representation. Granting Lloyd's request for self-representation at that point certainly
would have disrupted the proceedings. More importantly, Lloyd was not prejudiced by
the denial of his request because the record reflects that he was allowed to make the
entire argument he wanted to make to the court. The reason for Lloyd's request for self-
representation was satisfied. Finally, the record reflects that the quality of Lloyd's
counsel's representation was clearly adequate and there was no conflict between Lloyd
and his counsel. Balancing the factors set forth in Cromwell and Cuddy, we conclude that
the district court did not abuse its discretion in denying Lloyd's untimely request for self-
representation at his probation revocation hearing.

Affirmed.