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APPEAL from the Circuit Court of Rock Island County; the Hon.
WILLIAM K. O'CONNOR and the Hon. CONWAY L. SPANTON, Judges,
This appeal is taken by J.W., the minor respondent, from an order of the Circuit Court of Rock Island County revoking his probation and committing him to the Department of Corrections. J.W. had previously been adjudicated a delinquent and placed on probation as a ward of the court.
In this appeal, he contends the finding that he violated his probation and the order committing him to the Department of Corrections must be vacated, on the premise that the original order placing him on probation was void because it was for an indefinite term. He also asserts that the juvenile court lacked jurisdiction to revoke his probation and commit him to the Department of Corrections since his father was not given proper notice of the revocation hearings.
To clarify the issues presented, and to properly determine the issue of proper notice, the following chronology of events is given:
August 25, 1977 — A petition was filed in Rock Island County alleging J.W., then age 13, was delinquent in that he committed a burglary. On the petition J.W.'s mother's address in East Moline, Illinois, was given. Service upon his mother is not contested by J.W. regarding this petition or any subsequent hearings or petitions. A receipt for certified mail indicates that J.W.'s father was apparently served at an address in East St. Louis, Illinois. Pending a hearing, J.W. was placed in the temporary custody of Arrowhead Ranch.
September 22, 1977 — An adjudicatory hearing was held at which the trial court determined that the proof sustained the allegations of the August 25, 1977, petition. Both of J.W.'s parents were present. J.W. was allowed to live with his father in East St. Louis, Illinois, pending the dispositional hearing.
November 4, 1977 — At a dispositional hearing the court adjudged J.W. a delinquent ward of the court. J.W. was placed on probation and returned to the custody of his father. No indication of the length of the probationary period was given.
April 20, 1978 — Notice of a review hearing scheduled for this date was sent to J.W. and to his parents, but the record contains no indication that the hearing was held.
May 18, 1978 — A hearing was held on a petition for further disposition at which the court transferred J.W. to the custody of his mother and imposed additional probation restrictions; again, no time limitation is indicated for the probationary period. There is no indication that J.W.'s father was notified of this hearing.
April 23, 1979 — A supplemental petition was filed alleging the delinquency of J.W. in that he committed a burglary. Personal service was had upon J.W. and his mother. His father's address is listed as "unknown."
May 3, 1979 — An affidavit for service by publication for J.W.'s father was filed stating that the father lives outside the State and that his last known address was St. Louis, Missouri. The petitioner indicated that he had "talked to ex-wife and she hasn't seen him or heard from him in years."
May 11, 1979 — Publication was made in the Rock Island Argus.
May 15, 1979 — A copy of the publication was mailed to J.W.'s father at an East St. Louis, Missouri, address.
June 5, 1979 — Defense counsel filed a motion to dismiss the supplemental petition, citing inadequate service upon J.W.'s father as the basis for the motion.
June 5, 1979 — The State also filed a motion to continue, citing the inadequate service upon J.W.'s father.
June 7, 1979 — The court continued the cause until June 28, 1979, and ordered that a summons be sent to the father by certified mail.
June 25, 1979 — Defense counsel filed a second motion to dismiss, again citing inadequate service upon J.W.'s father.
June 28, 1979 — At the hearing the trial judge asked whether defense counsel represented only J.W. or J.W. and his father. Upon the reply of counsel that he represented only J.W. and the court's statement that there appeared to be notice by certified mail, the motion of defense counsel to dismiss was denied. J.W. was found guilty of burglary and temporarily placed in the custody of Arrowhead Ranch. The trial judge did not indicate that notice by certified mail had been made upon J.W.'s father, although he did ascertain that such notice was received by defense counsel.
July 19, 1979 — At a dispositional hearing J.W. was placed with U.D.I.S. to participate in the Underway Wilderness Stress Program for six months with the placement to be reviewed after six months. No indication is given that J.W.'s father was notified of this hearing.
September 21, 1979 — A petition for further disposition was filed alleging that J.W. committed the offense of attempt burglary. The assistant state's attorney certified that notice was served on the father by mail.
September 27, 1979 — Defense counsel moved to dismiss the petition based on inadequate service to J.W.'s father.
October 12, 1979 — A dispositional hearing was held. J.W. and his mother received notice of the hearing. The assistant state's attorney outlined the attempts made to serve the father: a summons was sent to the sheriff of St. Clair County by certified mail; the sheriff attempted to personally serve the father at his last known address, but the father apparently had moved. A person with the same name was located, but it was discovered that he was not J.W.'s father. The trial court determined that the lack of notice to J.W.'s father did not deprive the court of jurisdiction. J.W. was found guilty of attempt murder and was placed through U.D.I.S. at the Peoria Youth Farm for a period of 3 1/2 months. A notice of appeal was filed following this disposition.
November 28, 1979 — J.W. was removed from the Peoria Youth Farm.
December 31, 1979 — Petition for further disposition pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 705-2(3)) was filed. The petition alleged that J.W. was removed from the Youth Farm due to constant behavior problems. J.W.'s father was not listed on the petition, nor was he certified as having received notice by the assistant state's attorney.
January 3, 1980 — Defense counsel filed a motion to dismiss alleging that J.W.'s father had not been served with notice.
January 10, 1980 — Another petition for further disposition was filed, alleging the same facts as the December 31, 1979, petition, but this time J.W.'s father was listed on the petition and an attempt was made to serve him by certified mail.
January 21, 1980 — Hearing held on the petition for disposition. After the prosecutor stated that notice had been sent to J.W.'s father by certified mail on January 10, the court denied defense counsel's motion to dismiss. After hearing testimony, the trial judge stated that every alternative short of a long-term commitment to the Department of Corrections had been tried with J.W. The judge then committed J.W. to the Department of Corrections in St. Charles. A notice of appeal was filed with respect to this disposition.
January 23, 1980 — A petition to revoke J.W.'s probation was filed. It alleged that J.W. had been adjudicated a delinquent ward of the court and placed on probation on November 4, 1977. It further alleged that J.W. violated the terms of his probation by committing the offense of resisting a peace officer on or about January 21, 1980. The incident which formed the basis for the charge occurred as J.W. was being taken from the courtroom following the January 21, 1980, hearing. The assistant state's attorney certified that he mailed notice of the projected January 29, 1980, hearing to J.W.'s father on January 23, 1980.
January 24, 1980 — Defense counsel filed a motion to dismiss the January 23, 1980, petition, alleging that since J.W.'s probation had been effectively revoked on January 21, the January 23 petition was moot.
January 29, 1980 — A hearing was held on the petition to revoke probation. The trial court, upon motion by the prosecutor, vacated its order of January 21, 1980, on the basis that it was improper to have committed J.W. to the Department of Corrections without actually revoking his probation. Arguments were heard on whether adequate attempts had been made to serve notice of the hearing upon J.W.'s father. Upon learning that notice had been sent by regular mail, the judge ruled that proper attempted service had been made and there was jurisdiction over the matter. After hearing evidence relating to the scuffle which occurred between J.W. and a police officer at the conclusion of the January 21 hearing, the trial court stated that it appeared J.W. had resisted the police officer. The court then entered an order revoking the minor's probation.
January 30, 1980 — A dispositional hearing was held during which the trial judge concluded that the only alternative available to him was to order that J.W. be committed to the Department of Corrections. A notice of appeal was filed.
The three appeals from the October 12, 1979, January 21, 1980, and the January 29 and 30, 1980, hearings have been consolidated. As we have noted, two issues are raised in this consolidated appeal: (1) whether the judgment of the court revoking J.W.'s probation and committing him to the Department of Corrections should be reversed on the basis that the original order placing J.W. on probation was void because it was for an indefinite term, and (2) whether the juvenile court lacked jurisdiction because J.W.'s father was not notified of the revocation proceedings.
We agree that the juvenile court lacked jurisdiction to revoke J.W.'s probation and commit him to the Department of Corrections. This lack of jurisdiction stems from insufficient attempts to comply with statutorily and constitutionally mandated notice requirements. In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428.
In the landmark case of In re Gault, the United States Supreme Court held that, in juvenile proceedings, due process requires that the juvenile and his parents be notified in writing of the specific charges or allegations to be considered at a hearing. Such notice is to be given at the earliest practicable time and sufficiently in advance of the hearing to permit preparation. 387 U.S. 1, 33, 18 L.Ed.2d 527, 549, 87 S.Ct. 1428, 1446.
Consistent with this constitutional mandate, the Illinois Juvenile Court Act requires that the parents of a juvenile against whom a petition of delinquency is filed be named as respondents in the petition and also that they be issued a summons by the clerk of the court requiring them to appear and answer the petition on the date set for the adjudicatory hearing. (Ill. Rev. Stat. 1979, ch. 37, pars. 704-1(2), 704-3(3).) The Act provides that if personal service cannot be made, service should be by certified mail, and if the latter method is unavailable, then service may be by publication, with a copy sent to the individual's last known address. (Ill. Rev. Stat. 1979, ch. 37, pars. 704-4(1), 704-4(2), (3).) Section 5-3(3)(c) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705-3(3)(c)) provides that when a petition is filed charging a violation of probation, the court shall notify the persons named in the petition under section 4-1. In the case at bar the record indicates that notice of the revocation proceedings was merely sent to J.W.'s father by regular mail six days before the hearing. Apparently no attempts were made to serve the father personally, by certified mail or by publication.
The State contends that J.W. has no standing to raise the lack of service upon his father, apparently because he was not in the custody and control of his father at the time of the revocation hearing, and that no service by publication or otherwise was necessary asserting that the record clearly shows that the father was out of State continuously from a period before the probation revocation proceedings, citing section 4-4(2) of the Juvenile Court Act. We do not agree with these contentions. In the case of In re C.G. (1979), 69 Ill. App.3d 56, 387 N.E.2d 4, this court determined that a parent's custodial interest is irrelevant to the notice requirements mandated by the Juvenile Court Act. In response to the State's second contention, we note that a careful review of the record does not clearly indicate that J.W.'s father had moved from Illinois as the State argues. Furthermore, it is undisputed that no attempt was made to comply with the dictates of the Juvenile Court Act regarding notice.
Because notice to a minor's parents is jurisdictional (People ex rel. McEntee v. Lynch (1906), 223 Ill. 346, 79 N.E. 70; In re C.G. (1979), 69 Ill. App.3d 56, 387 N.E.2d 4; In re T.B. (1978), 65 Ill. App.3d 903, 382 N.E.2d 1292), we find that the State's failure to exercise due diligence in complying with the notice requirements of the Juvenile Court Act in the instant case has resulted in a lack of jurisdiction by the court. For that reason the order entered by the court committing J.W. to the Department of Corrections is void. See In re C.G. (1979), 69 Ill. App.3d 56, 387 N.E.2d 4; In re T.B. (1978), 65 Ill. App.3d 903, 382 N.E.2d 1292.
Because we find that the court lacked jurisdiction during the probation revocation hearings and thus any orders it issued are void, we need not decide the second issue raised in this appeal; specifically, whether the original order placing J.W. on probation was void because it was for an indefinite term. We do note, however, that a difference of opinion has arisen in the appellate courts> regarding the Illinois Supreme Court's interpretation of the applicable provisions of the Juvenile Court Act in the case of In re Sneed (1978), 72 Ill.2d 326, 381 N.E.2d 272. (See In re S.C.G. (1980), 84 Ill. App.3d 471, 406 N.E.2d 590; In re R.H. (1980), 82 Ill. App.3d 578, 402 N.E.2d 910, leave to appeal filed (No. 53344); In re T.E. (1980), 81 Ill. App.3d 630, 401 N.E.2d 1107, leave to appeal filed (No. 53329); and In re F.Y. (1979), 78 Ill. App.3d 712, 397 N.E.2d 902.) In some of these cases, the original indefinite term probation order was considered void while in others the order is considered merely voidable. Perhaps the conflict will be resolved in one of the two cases cited above in which leave to appeal has been filed with the Illinois Supreme Court.
Because we determine that the court lacked jurisdiction, the order revoking J.W.'s probation and committing him to the Department of Corrections is reversed.
STOUDER and BARRY, JJ., concur.
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Results 1 to 7 of 7
- 01-24-2014, 02:04 PM Thread Author #1
- Posts
- 5 Posts
USB Device Descriptor Missing from Device. Help Please.
Okay so I have had my phone rooted for about 2-3 months. A little while ago I accidentally deleted a file in the root directory that basically was a driver description for the USB. Now whenever I connect my phone to my computer I get a message saying that it is unidentified and that the (Device Descriptor Request Failed). Well I made a backup of my device, but the hard drive that it was on got corrupted. My phone is on stock rom rooted 4.3 with the October update. I'm using TWRP recovery. Is there a way I can have someone backup their HTC One on Sprint and for me to recover that backup just to replace the missing drivers, or what should I do?
- 01-24-2014, 06:39 PM #2Flashoholic!!
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Re: USB Device Descriptor Missing from Device. Help Please.
Just dirty flash the rom you are using
- 02-15-2014, 03:42 AM #4Retired Ambassador
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- Stock 6.0.1
A clean flash would be doing the advanced wipe before flashing. This would be done by wiping data, system, cache, and dalvik cache on your custom recovery
I'd recommend doing a "clean" flash anytime you're going from one ROM to another(CM > SlimBean or Carbon > Paranoid Android, etc.), or if the ROM update is major (CM 10 > CM 11)
Sent from my XT1056 using the Android Central App
- 05-13-2014, 03:17 PM Thread Author #5
- Posts
- 5 Posts
Re: USB Device Descriptor Missing from Device. Help Please.
Dirty Flashing Doesn't do anything. Now I'm screwed with a bricked phone. My phone won't be recognized on any computer, any usb port, any usb cable. I erased my rom (and data...) so all I have access to is TWRP. I tried to use an OTG cable to flash a rom from that, but no luck ( doesn't recognize any flash drive). Any ideas?
- 05-14-2014, 11:37 PM #6Flashoholic!!
- Posts
- 2,224 Posts
Re: USB Device Descriptor Missing from Device. Help Please.
BTW your is not bricked, Bricked means it does not do anything at all
What carrier/Model do you have?
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Supreme Court of Kentucky
September 26, 2013
Ricky ALLEN, Appellantv.COMMONWEALTH of Kentucky, Appellee.
Page 126
[Copyrighted Material Omitted]
Page 127
Page 128
Katie L. Benward, Assistant Public Advocate, Department of Public Advocacy, for appellant.
Page 129
Jack Conway, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General, for appellee.
MINTON, Chief Justice.
After approving Ricky Allen's request to represent himself in a jury trial of an indictment charging four felonies and a second-degree persistent felony offense (PFO 2), the trial court appointed standby counsel for Allen despite his objection. At trial, the court curtailed the range of Allen's self-representation by barring him from all bench conferences, allowing only standby counsel to participate because the court determined Allen was a threat both to disrupt the trial and to flee. The trial resulted in a judgment of conviction and twenty-year sentence of confinement as a second-degree persistent felon, from which Allen now appeals as a matter of right.[1]
We reject Allen's argument that the trial court erred by failing to grant a directed verdict on three charges, but we reverse the judgment because we hold that the trial court's restriction of standby counsel at bench conferences in lieu of Allen himself or hybrid counsel left Allen unrepresented at these critical stages of the trial proceeding in violation of his Sixth Amendment rights.
In light of our reversal, we confine our discussion of the other issues Allen raises to those likely to recur in the event of a retrial.
Grace Fellowship Church was burglarized. The church reported that several items were missing, including a Compaq laptop computer, digital camera, bass guitar, and $340 in cash. In the course of the burglary, a number of door locks, cabinet locks, and a desk lock were damaged. The repair and replacement necessitated by the damage cost the church over $5,000.
A few months later, police received a call from Cecil Hall reporting a domestic dispute between Ricky Allen and Cecil's mother, Verda Hall. Cecil met the police at his mother's residence where he turned over to the authorities a USB drive containing files belonging to Grace Fellowship Church and its pastor. Cecil told authorities that he downloaded the files from a computer that Allen asked him to evaluate. Cecil claimed that Allen bragged about breaking into a place in Carnaby Square— the shopping center where the church was located— and that Allen threatened him when Cecil figured out the laptop was stolen from the church. In the course of the investigation, Verda told police that on the night of the burglary, she dropped Allen off at Carnaby Square, which was about a half mile from her home. When she dropped Allen off, he was carrying a black bag. She also claimed that sometime later she saw a guitar in the back of Allen's truck.
A grand jury indicted Allen, charging him with third-degree burglary, first-degree criminal mischief, theft by unlawful taking over $300, receiving stolen property worth $300 or more, and being a PFO 2. Allen represented himself at trial with assistance from standby counsel.
At trial, Cecil testified that Allen presented him with a laptop that appeared to belong to the church based on the downloaded documents. He also claimed that Allen had told him in the past how he would go about breaking into a place. But Cecil denied his prior statements to the police that Allen admitted to burglarizing the church and that Allen threatened to harm him if he reported the crime. Cecil
Page 130
admitted that he did not like Allen, and this caused him to exaggerate his statements to the police.
Verda testified that she did not remember telling police that she dropped Allen off in the church's vicinity or that she saw a guitar in Allen's truck. She claimed that she was taking high doses of prescription drugs when she gave her statement to the police. Verda also testified that the only guitar she ever saw was one located in a building on property she owned with her husband (not Allen).
A detective testified to Cecil's and Verda's prior inconsistent statements. The detective had viewed the files on the USB drive and confirmed that they belonged to the church. Neither the files nor the thumb drive itself were introduced into evidence. There was no surveillance footage identifying Allen, and no usable fingerprints were found at the scene. And none of the stolen property was ever recovered.
At the close of the Commonwealth's case, the trial court granted a directed verdict for lack of sufficient evidence of the crime of receiving stolen property worth $300 or more and instructed the jury on receipt of stolen property worth less than $300. The jury convicted Allen of all counts submitted to it and determined Allen to be a PFO 2. The trial court sentenced him to twenty years' imprisonment.
A. Allen was not Entitled to a Directed Verdict.
Allen claims the trial court erroneously denied his motion for a directed verdict on the charges of burglary, criminal mischief, and theft. [2] This issue is properly preserved for appeal.[3] We find that sufficient evidence supported Allen's convictions.
A trial court ruling on a directed verdict motion must draw all fair and reasonable inferences in the Commonwealth's favor.[4] " [T]he trial court must assume that the evidence for the Commonwealth is true, but [reserve] to the jury questions as to the credibility and weight to be given to such testimony." [5] On appeal, we will reverse a trial court's denial of a directed verdict only if, under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.[6] There must be evidence of substance, and the Commonwealth must present more than a mere scintilla of evidence.[7]
Allen protests that he is entitled to a directed verdict on the charges of third-degree burglary,[8] first-degree criminal
Page 131
mischief, [9] and theft by unlawful taking over $300 [10] because no evidence existed to show that he entered or remained unlawfully in the church, stole the items, or caused damage to church property. He claims that the evidence presented at trial necessarily left a doubt concerning Allen's guilt. But we cannot say that it was clearly unreasonable for a jury to find Allen guilty of the charged crimes.
It is true that no physical evidence existed to link Allen directly to the scene of the burglary. But this fact alone does not warrant a directed verdict. A " [c]onviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt." [11] " In cases ... where there is a lack of physical evidence or eyewitnesses, the case should nonetheless be submitted to the jury where when the various items of evidence are added together, a mosaic appears upon which a reasonable jury could look and conclude that appellant was guilty." [12]
Here, the jury found Allen guilty of possessing the stolen laptop. [13] From this, they could believe that he stole the laptop from the church and committed burglary. Years ago, our predecessor court held that
where there is substantial evidence showing a breaking and entering of a dwelling and a taking of property therefrom, which is supported by proof that the stolen property was found in the possession of the defendant, or in the possession of a third person who testifies that said property was obtained by him from the said defendant, that such showing is sufficient to make out a prima facie case of house breaking[.] [14]
It was reasonable for the jury to find also that Allen burglarized the church, thereby causing damage to church property and taking the other missing items. Cecil told police that when he figured out the laptop was stolen, Allen threatened to harm him if he told the police. Cecil also claimed that Allen admitted to breaking into a place in Carnaby Square. Verda told police that on the night of the crime, she dropped Allen off in the shopping center where the church was located. Allen was carrying a black bag with him. Verda also said that she saw a guitar in Allen's truck, and the detective understood this to be a few days after the crime.
Cecil and Verda recanted many of their statements at trial. But it was for the jury to determine whether it believed their testimony or out of court statements to the police. The Commonwealth established that Verda was still in contact with Allen, and the two corresponded while he was in jail. And, in closing, the Commonwealth argued that Cecil changed his testimony after having lunch with his mother on the
Page 132
day of trial. " [E]ven when the evidence is contradictory, the credibility of witnesses and the weight to be given to sworn testimony are for the jury to decide." [15] So the trial court did not err by denying Allen's motion for a directed verdict.
B. The Trial Court Violated Allen's Sixth Amendment Rights by Excluding Him from Bench Conferences.
Allen was represented in several cases in the trial court by Cotha Hudson, a court-appointed attorney. Before trial in another case, Allen moved, pro se, for a change of counsel, which the trial court denied. During the hearing on Allen's motion, the trial court had to ask Allen not to interrupt other people when they were talking. Following that trial, Allen filed a motion under Kentucky Rules of Criminal Procedure (RCr) 11.42 challenging his conviction because of Hudson's ineffectiveness as trial counsel.
Hudson informed the trial court that Allen's allegations in his RCr 11.42 motion prevented her from further representing him in his other ongoing cases, including the present one. Allen requested to represent himself at the trial of the present case. At the hearing on Allen's request, he interrupted the trial court as it was stating its inclination to hold the RCr 11.42 motion in abeyance. The trial court informed Allen that he was not to interrupt while the judge was speaking.
Despite the trial court's decision to abate Allen's self-representation motion, Hudson was concerned that she should be removed from the case, nevertheless, because Allen would not cooperate with her. A discussion to determine the best way to handle the situation took place among the trial court, Hudson, other Department of Public Advocacy (DPA) attorneys, and the Commonwealth's Attorney. Allen sought to interject and asked if he could speak, interrupting one of the attorneys who was talking. The trial court told Allen no, but he continued to speak. Allen said that he did not want representation by DPA and would represent himself. The trial court had Allen temporarily removed from the courtroom for failing to remain quiet.
The trial court brought Allen back into the courtroom, conducted a Faretta hearing, and took the issue under consideration. The trial court ultimately issued an order granting Allen's motion for self-representation with restrictions. The trial court ruled that Allen knowingly and voluntarily waived his right to representation and appointed Hudson as standby counsel.
Although mindful of Allen's right to represent himself, the trial court could not " ignore Allen's past dealings with th[e] [c]ourt." The trial court noted that Allen was " prone to frequent and uninvited interruptions in the [courtroom]" and was a flight risk. The trial court's determination that Allen was a flight risk was based on the fact that while on trial for a different charge, Allen left the courthouse and was not apprehended for six days.
The trial court believed that Allen would abuse his Sixth Amendment right of self-representation " by using it as another attempt to flee or abuse the judicial process by unnecessary disruption during his trial." So the trial court ordered the following:
1. If Allen engages in disruptive behavior, and after warning continues to do so, Allen will lose his right to represent himself. Illinois v. Allen, 397 U.S. 337, 343 [90 S.Ct. 1057, 25 L.Ed.2d 353] (1970).
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2. If Allen exercises a disregard of the elementary standards of courtroom behavior— to remedy such behavior— the Court will either: a) bind and gag Allen, b) hold Allen in contempt or c) remove Allen from the courtroom. Id. at 343-44 [95 S.Ct. 2525].
3. Because of the possibility that Allen may forfeit his right to represent himself if he chooses to engage in disorderly conduct, the Court assigns Allen's current counsel, Cotha Hudson, as standby counsel for Allen. McKaskle v. Wiggins, 465 U.S. 168 [104 S.Ct. 944, 79 L.Ed.2d 122] (1984).
4. Ms. Hudson should be fully prepared and ready to proceed with Allen's trial, even in his absence. Ms. Hudson will also be available to Allen for assistance before and during the trial, but shall not interfere with Allen's Faretta rights in order that Allen may present his case in his own way.
5. Because Allen is a flight risk he will be confined to his counsel table and will not be allowed to leave. He will address his questions to the witnesses from his table and will remain seated unless otherwise directed by the Court. Finally, Ms. Hudson, not Allen, will handle exhibits, approach for bench conferences, and move about as may be required.
On the morning of trial, Allen informed the trial court he was not ready to proceed because he had not received the order granting his motion for self-representation and his discovery materials were lost. The trial court denied Allen's motion for a continuance, and Allen proceeded to represent himself at trial.
Allen conducted voir dire, made objections, cross-examined witnesses, attempted to call witnesses in his own defense,[16] and delivered an opening statement and closing argument. But he was not allowed to participate in bench conferences. Hudson approached the bench for conferences; as discussed below, Hudson at times spoke on behalf of Allen, at other times remained silent and merely played the role of messenger, and at least twice expressed views contrary to Allen's interests. Allen argues that his exclusion from bench conferences improperly infringed on his Sixth Amendment rights. We agree.
The Sixth Amendment of the United States Constitution and Section 11 of the Kentucky Constitution afford a criminal defendant the right to counsel, as well as the right of self-representation.[17] Unlike its federal counterpart, Section 11 of the Kentucky Constitution also guarantees the right to hybrid representation.[18] A defendant's request to represent himself or for hybrid representation must be voluntary, knowing, and intelligent.[19]
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Even when a defendant makes a knowing, intelligent, and voluntary request to proceed pro se or with hybrid representation, the right of self-representation is not absolute.[20] " The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." [21] Accordingly, trial courts may place certain restrictions on a defendant's right to self-representation.[22]
" [A] trial court may appoint standby counsel for a defendant even if the defendant objects to such an appointment." [23] We have also recognized the ability of trial courts to impose hybrid counsel in certain situations. For instance, a trial court can appoint hybrid counsel over the objection of a defendant who is borderline competent. [24] And a trial court may require hybrid counsel to cross-examine victim-witnesses over a defendant's objections.[25] A defendant can also forfeit his right to represent himself.[26] " A request for self-representation may be denied upon a determination that the defendant is unable or unwilling to abide by courtroom protocol as he conducts his defense, or if it is made purely as a tactic to disrupt or delay proceedings." [27] These restrictions reflect the fact that " the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." [28]
The trial court's appointment of Hudson as standby counsel over Allen's objection did not per se violate Allen's Faretta rights. But when a trial court appoints standby counsel over a defendant's
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objections, the defendant typically may define standby counsel's participation in the trial. [29] " [T]he objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel.... Accordingly, the Faretta right must impose some limits on the extent of standby counsel's unsolicited participation." [30] In McKaskle, the United States Supreme Court imposed two restrictions on the unsolicited participation of standby counsel.
First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.
Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused's individual dignity and autonomy. [31]
We agree with those jurisdictions finding that participation of standby counsel in bench conferences over a defendant's objection typically offends the two limitations outlined in McKaskle. [32] Bench conferences often involve vital legal arguments, including everything from evidentiary objections to motions for mistrial. When a self-represented defendant is unable to participate in these matters, he loses control over his defense. And, under McKaskle, standby counsel should not speak instead of the self-represented defendant at bench conferences. Standby counsel's participation in bench conferences also jeopardizes the jury's perception of the defendant as representing himself. Granted, these are factual determinations that should be made on a case-by-case basis. But participation of standby counsel at bench conferences to the self-represented defendant's exclusion and over the defendant's objection runs a high risk of violating the defendant's Faretta rights.
In Snowden v. State, [33] the trial court granted Snowden's motion for self-representation and appointed standby counsel. But the trial court ruled that Snowden could not leave counsel table and required the standby attorney to attend all sidebar conferences.[34] The Delaware Supreme
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Court held that this violated Snowden's Sixth Amendment right to represent himself. Contrary to McKaskle, standby counsel spoke instead of Snowden; and the jury's perception that Snowden represented himself may have been adversely affected.[35] The court reversed for a new trial because Snowden's right of self-representation afforded him the opportunity to address the court at appropriate points in the trial, including sidebar conferences.
In Snowden, no reasons were given for the trial court's decision to exclude the self-represented defendant from bench conferences. The analysis by the Delaware Supreme Court was based purely on the Sixth Amendment right of self-representation and the McKaskle guidelines.[36] The case at hand is not so clearly pigeon-holed because the trial court based its restrictions on Allen's flight risk and potential to disrupt the proceedings. The Commonwealth argues that the trial court would have been justified in denying Allen's right to self-representation altogether under Hummel and that the trial court acted within its discretion by excluding Allen from bench conferences. So the question before us is whether standby counsel's sole participation in bench conferences is justified by the trial court's findings that Allen was a flight risk and that Allen could potentially disrupt court proceedings. For the following reasons, we hold that it is not.
We first review the trial court's findings that Allen was a flight risk and was a risk for disrupting the proceedings for abuse of discretion.[37] We must then examine the restrictions imposed by the trial court for appropriateness under the Sixth Amendment.
The trial court did not abuse its discretion in finding Allen was a flight risk. Only a few months before, Allen left the courthouse while in custody and on trial for different charges; he was not apprehended for several days. At the time of the trial of the present case, Allen had been tried and convicted of second-degree escape and being a first-degree PFO. He was serving a sentence of twenty years' imprisonment for that conviction. Allen was also awaiting trial on several other indictments. We cannot say the trial court abused its discretion by deeming Allen a flight risk.
Nor did the trial court abuse its discretion in determining that Allen could disrupt court proceedings. The trial court had Allen removed from a pretrial hearing for interrupting others. And the trial court had extensive interactions with Allen on his various cases. So the trial court was in the best position to determine that Allen posed a risk of disrupting the trial.
Despite finding that Allen was a flight risk and could potentially be disruptive,
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the trial court chose not to impose the extreme sanction of denying outright Allen's request to represent himself. This decision was entirely appropriate. Allen's behavior was not extreme or violent, nor was he charged with violent crimes. So while Allen was a flight risk, he was not a security risk.[38] And the trial court protected against any potential disruption from Allen by directing Hudson to be prepared to take over the trial.[39] So while the trial court found that Allen posed a risk for flight and disruption, the court did not find it necessary to deny Allen's right to self-representation altogether.[40]
Instead, the trial court appointed Hudson as standby counsel. When the trial court took Allen's motion to proceed pro se under advisement, the trial judge indicated that he had to decide whether to dismiss Hudson altogether, keep her as lead or co-counsel, or appoint her as whisper or standby counsel. Ultimately, the trial court determined that Allen could represent himself with assistance from Hudson as standby counsel. This determination was completely within the trial court's discretion.[41]
Once making the decision to appoint standby counsel, the trial court was faced with devising a plan to reconcile standby counsel's role with Allen's Faretta right to represent himself. We recognize that a
trial judge may be required to make numerous rulings reconciling the participation of standby counsel with a pro se defendant's objection to that participation; nothing in the nature of the Faretta right suggests that the usual deference to " judgment calls" on these issues by the trial judge should not obtain here as elsewhere.[42]
Nor does a defendant's right to appear pro se " categorically silenc[e] standby counsel." [43] " Faretta rights are not infringed when standby counsel assists the pro se defendant in overcoming routine procedural or evidentiary obstacles.... Nor are they infringed when counsel merely helps to ensure the defendant's compliance with basic rules of courtroom protocol and procedure." [44]
But once the trial court decided that Hudson would serve purely as standby counsel, the court was not free to exclude Allen from bench conferences. We hold that Allen's Sixth Amendment right to
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counsel was violated when the trial court permitted Allen to represent himself without hybrid counsel and then barred him from a critical stage of the criminal proceedings.
Allen's exclusion from bench conferences implicates his Sixth Amendment right to be represented by counsel at all critical stages of a criminal proceeding.[45] " It is well-settled that a criminal defendant has a right to be represented by counsel that extends beyond the actual trial to every critical stage of the proceedings." [46] We conclude that Allen was unrepresented at the bench conferences.
Allen acted as his own counsel at trial and was prohibited from attending the bench conferences. Although Hudson was present at the bench conferences, she did not represent Allen because she was standby counsel only. Standby counsel is defined as " [a]n attorney who is appointed to be prepared to represent a pro se criminal defendant if the defendant's self-representation ends. [ ] The standby counsel may also provide some advice and guidance to the defendant during the self-representation.— Also termed advisory counsel. " [47] Advisory counsel is " [a]n attorney retained merely to give advice on a particular matter, as distinguished from one (such as trial counsel) actively participating in a case." [48]
Standby counsel is distinguished from hybrid counsel, which is an attorney that acts as co-counsel with the defendant.[49] Kentucky courts view hybrid counsel as
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self-representation, in part.[50] That is, the defendant makes " a limited waiver of counsel whereby he acts as co-counsel with a licensed attorney. The defendant specifies the extent of legal services he desires, but undertakes the remaining portion of his defense pro se." [51]
We agree with the Sixth Circuit Court of Appeals that " [g]enerally, standby counsel does not satisfy a defendant's Sixth Amendment right to counsel." [52] As the definition of standby counsel indicates, " [s]tandby counsel does not ... ' represent' the pro se defendant." [53] The trial court held that Allen competently waived his right to an attorney. Hudson's role was advisory only. From that point on, Allen was representing himself— acting as his own attorney. As his own attorney, he had the right to be present at all critical stages of the criminal proceeding.
" [A]n analysis of a critical stage necessarily involves a retrospective inquiry as to the nature and consequences of each step in the proceedings. Particular attention must be given to how counsel would have benefited the defendant at these moments." [54] A portion of a criminal proceeding is a critical stage if a reasonable likelihood exists that the defendant was prejudiced by the absence of counsel.[55]
The bench conferences at Allen's trial were critical stages of the criminal proceeding.[56] Numerous bench conferences took place at Allen's trial. The issues addressed at the conferences included a motion for a continuance, the excusal of jurors for cause, and evidentiary challenges by both Allen and the Commonwealth. That a reasonable likelihood exists that Allen was prejudiced by the absence of counsel— Allen or co-counsel— from these bench conferences is certain.
We point out the contents of the conference
regarding Allen's motion for a continuance as an example. On the morning of
trial, it came to light that Allen had not received a copy of the trial
court's order granting Allen his right to self-representation. Allen also
informed the court that his discovery documents were missing. On these bases,
Allen requested a
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continuance.[57] The trial court discussed Allen's motion with Hudson and the prosecutor at the bench while Allen was restricted to counsel table. The trial court denied Allen's motion and the trial proceeded.
We find that a reasonable likelihood exists that Allen was prejudiced by the absence of counsel at this bench conference. It is reasonably likely that counsel, Allen, or an attorney representing him, could have presented articulable and persuasive reasons why a continuance was necessary. Instead, the trial court ruled on the motion without hearing any argument from Allen.
After determining that Allen should not approach the bench for conferences, the trial court should have appointed co-counsel to represent Allen at these critical stages. Allen's actions may have forfeited his right to move freely about the courtroom, but that does not mean he could go unrepresented at the bench conferences.
In Hummel, we held that a defendant can forfeit his right to represent himself. Although Hummel forfeited his right to be his own counsel, he was still represented by an attorney at all critical stages of his criminal proceedings.[58] The Ninth Circuit Court of Appeals also has held that when a pro se defendant acts out during trial, he " does not forfeit his right to representation.... He merely forfeits his right to represent himself in the proceeding." [59] In United States v. Mack, Mack was representing himself without the aid of standby counsel. When Mack became obstreperous, the trial court removed him from the courtroom, " which left nobody to represent him.... In practical effect, [Mack] had been removed as his own counsel and nobody stepped in to fill the gap." [60] The Ninth Circuit held that " [i]t is beyond doubt that Mack wound up deprived of counsel— himself or anyone else." [61] This was a structural error requiring reversal. [62] So, too, was Allen left unrepresented at critical stages when the trial court prohibited him from attending bench conferences.
The Commonwealth, as well as the dissent, points us to State v. Davenport, [63] in which the New Jersey Supreme Court found that Davenport's right to represent himself was not violated by his exclusion from sidebar conferences. The court held that under the facts of that case, Davenport controlled the content and presentation of his defense; and the jury was fully aware of that reality.[64] The court found standby counsel's participation at bench conferences in place of Davenport appropriate " in light of the valid security concerns attendant to the trial of an alleged drug kingpin facing a life sentence...." [65] But the court never discussed the implications
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of the defendant's lack of representation at critical stages of his criminal trial.[66] So we do not find Davenport persuasive.[67]
We pause here to distinguish clearly Davenport from the case before us. The dissent " find[s] this case more akin to Davenport " because the " trial court detailed security concerns." Respectfully, we must disagree. Initially, a brief description of the facts and proceedings of Davenport is in order. Davenport involved the arrest of a 33-year-old male, who was over six feet tall and weighed over 300 pounds, and during the arrest lunged for a shoebox found to contain two firearms. Davenport was a " drug kingpin" charged with " twenty-five drug- and weapon-related offenses, the most serious of which was first-degree leading a narcotics trafficking network." [68] As detailed previously, Allen was arrested and charged with theft offenses; and the record is factually inconclusive regarding Allen's involvement, past or present, in violent activity or any supposed violent disposition. Further, Allen was not in possession of a weapon at the time of arrest.[69] The record describes Allen as a slightly over five-feet, 130 pound, fifty-one-year-old male. Simply stated, on the facts, this case is not akin to Davenport. The trial court did not find Allen to be a security concern, and there are no " legitimate security concerns" detailed on the record that would necessitate precluding Allen from participating in bench conferences.[70] Admittedly, Allen was found to be a flight risk. But a finding of propensity for flight or escape is not the equivalent of a finding of a safety concern for individuals in the courtroom.
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Contrary to the arguments presented by the dissent or the Commonwealth, Davenport actually supports our holding today. The dissent uses selective quotation to buttress its argument but, in doing so, misses the point of Davenport. While Davenport, like Allen, was prohibited from participating in sidebars, the trial judge in Davenport ensured that Davenport was given a proper opportunity to present his case. The trial judge, on a particular occasion, following a discussion between standby counsel and the prosecuting attorney, " dismissed the jury and proceeded to address with defendant the entire contents of the sidebar discussion...." [71] Additionally, " on several occasions [standby counsel] left the sidebar conference to relay information to or from [Davenport], or to determine from [Davenport] whether he had an objection to a proposed course of action." [72] There is simply no mention of such conduct in Allen's case. Indeed, nearly the opposite took place during Allen's trial. Standby counsel did not request if Allen wished to relay any message to the trial judge or prosecuting attorney, whether Allen wished to make an argument or objection, and the trial judge did not dismiss the jurors to hear from Allen. The totality of Davenport can almost be viewed as the method trial judges should model when attempting to balance the defendant's right to proceed pro se against the safety and effectiveness of the courtroom.[73] Certainly, Davenport does not support the weight the dissent gives it. While Davenport was not " deprive[d] ... of meaningful participation in the content of the sidebars through his standby counsel representative," [74] Allen certainly was. Again, this case is not akin to Davenport.
The Commonwealth also argues that although the trial judge labeled Hudson standby counsel, her presence at the bench conferences necessarily entailed representation of Allen in that limited role. So, according to the Commonwealth, Allen was not left unrepresented at any critical stage of the trial. The record here contradicts the Commonwealth's argument.
The record in this case supports the conclusion that Allen was left unrepresented at the bench conferences. The trial court repeatedly made clear that Hudson's role as standby counsel was advisory only. The trial court's order specifically identified Hudson as standby counsel for Allen, stating that she would be available to Allen for assistance before and during the trial but would not interfere with Allen's Faretta rights in order that Allen could present his case in his own way. The trial court informed the jury that Allen had chosen to represent himself and would not have an attorney to represent him. The court explained that while Hudson was an attorney, she was present only to answer
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Allen's questions and assist Allen with approaching the bench and handling witness documents. The trial court also reminded Hudson of her role during the course of trial. For instance, the trial court reminded Hudson that while she could assist Allen with his juror strikes, the ultimate decisions lay with Allen. And when Hudson moved the court for a directed verdict at the close of the Commonwealth's case, the trial court would not entertain the motion until Allen so moved the court.
Hudson was placed in an awkward situation by being restricted to an advisory capacity but, at the same time, being present at the bench conferences to Allen's exclusion. At some bench conferences, she made limited statements on Allen's behalf. But many times, she remained silent at the conferences and took on more of a messenger role. For instance, during many examinations of individual jurors at the bench during voir dire, the trial court ruled to excuse jurors and instructed Hudson to inform Allen about what occurred. In another instance, the prosecutor objected to a question posed by Allen in cross-examination. Allen started to reply to the prosecutor's objection, but the trial court interrupted him and called counsel to the bench. Hudson explained the purpose behind Allen's line of questioning, but she did not argue as to why the questioning was relevant. The trial court sustained the prosecutor's objection. Allen had no opportunity to participate at these bench conferences, and it cannot be said that Hudson argued on his behalf.
More alarmingly, on at least two occasions, Hudson argued against Allen's interests. On the morning of trial, Allen asked for a continuance because he had not received a copy of the trial court order granting his motion to represent himself and because he lost his discovery. When Hudson relayed this information to the trial court, she clearly conveyed her exasperation with Allen. She informed the trial court that although Allen did not have the documents with him, she had given him the discovery twice. Hudson was not representing Allen's interests at this bench conference. Rather, her frustration and tone of voice made clear that she did not consider a continuance appropriate or necessary.
Hudson also argued against Allen's interests at a bench conference during trial. Allen was cross-examining a witness and sought to introduce evidence through the witness. Hudson approached the bench to relay Allen's request to introduce the evidence. Hudson told the trial court that she tried to explain to Allen that although he could ask the witness about certain information, the evidence could not be introduced. The trial court affirmed Hudson's assessment and denied Allen's request. At this conference, Hudson successfully argued against Allen's interests. So we are not convinced by the Commonwealth's argument that Hudson was representing Allen at the bench conferences.
We also note that the trial judge took upon himself many of the tasks that would be required of Allen's counsel.[75] We commend the trial court for attempting to provide Allen a fair trial. But a defendant " does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that
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would normally be attended to by trained counsel as a matter of course." [76] The trial court's actions here underscore the perception that the trial court itself did not view Hudson as representing Allen. If Hudson were representing Allen at the bench conferences, it is unlikely the trial court would have found it necessary to intercede on Allen's behalf.
In United States v. McDermott, [77] the Tenth Circuit Court of Appeals similarly rejected " the government's argument that Mr. McDermott's counsel was transformed into hybrid counsel (going from adviser/helper to representative)...." [78] The court found that the record left no doubt that McDermott represented himself while the attorney was standby counsel only. [79] The same is true here— Allen represented himself while Hudson's role as standby counsel was advisory only. She did not transform into hybrid counsel while attending the bench conferences.
Whether this is viewed as a violation of Allen's right of self-representation or right to be represented at a critical stage, the error is not susceptible to harmless error analysis. " It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error." [80] Nor is the denial of the right of self-representation " amenable to ' harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless." [81]
The trial court's error in Allen's case was of constitutional magnitude and requires reversal. The trial court was faced with the task of creating a plan that would simultaneously protect Allen's right of self-representation and minimize the risk of flight and disruption. The trial court appropriately decided not to impose the extreme sanction of denying outright Allen's right to represent himself. But, unfortunately, the plan devised by the trial court left a gap in Allen's representation at critical stages of the trial— the bench conferences. So we must reverse the convictions.
C. The Commonwealth did not Introduce a Prior-Dismissed Conviction at the Sentencing Phase.
The jury found Allen guilty of being a PFO 2. A second-degree persistent felony offender " is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of one (1) previous felony." [82] At the sentencing phase, the Commonwealth introduced a Laurel Circuit Court judgment convicting Allen of possession of a firearm by a convicted felon. The judgment was entered in January 2000. [83]
Allen argues that evidence concerning this judgment was inadmissible for purposes of finding him a PFO 2 because
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the Court of Appeals vacated the judgment. This issue is unpreserved, and Allen requests review for palpable error.[84] We find that no error occurred, let alone palpable error.
The opinion of the Court of Appeals regarding Allen's January 2000 conviction reviewed the trial court's decision not to grant an evidentiary hearing on Allen's RCr 11.42 claim of ineffective assistance of counsel. The Court of Appeals reversed the trial court's order denying Allen's motion and remanded to the trial court for an evidentiary hearing. It is undisputed that the hearing on Allen's RCr 11.42 claim never occurred, and the judgment of conviction was never vacated.
In Melson v. Commonwealth, [85] this Court held that
a prior conviction may not be utilized under KRS 532.055 (the truth-in-sentencing statute) or under KRS. 532.080 (the persistent felony offender act) unless:
(1) The time for appealing the convictions has expired without appeal having been taken, or
(2) Matter of right appeal has been taken pursuant to § 115 of the Constitution of Kentucky and the judgment of conviction has been affirmed.
This does not apply to collateral attacks, such as motions under RCr 11.42, nor does it apply to pending motions for discretionary review. [86] So, under Melson, a prior conviction may be used for a PFO conviction even though a defendant has filed an RCr 11.42 motion to attack collaterally that conviction.[87] The use of Allen's January 2000 conviction for PFO purposes was not error.
Sufficient evidence supported Allen's convictions of burglary, criminal mischief, and theft. Allen's PFO 2 conviction was also valid. But Allen's exclusion from bench conferences at trial violated his Sixth Amendment rights. So we reverse the judgment and remand to the trial court for further proceedings.
All sitting. ABRAMSON, KELLER, NOBLE, and VENTERS, JJ., concur. SCOTT, J., dissents by separate opinion in which CUNNINGHAM, J., joins.
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SCOTT, J., dissenting:
I must respectfully dissent from the majority's opinion because I disagree that the trial court's order, requiring the participation of standby counsel at bench conferences on Appellant's behalf, violated his Sixth Amendment rights by leaving him unrepresented at critical stages of the trial. Given Appellant's disrespectful and disruptive conduct, and past criminal record, the order was thoroughly justified.
The Sixth Amendment guarantees criminal defendants the right to self-representation, Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), so long as the criminal defendant is " able and willing to abide by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122(1984). The right to self-representation is " not a ... license not to comply with relevant rules of procedural and substantive law." Faretta, 422 U.S. at 834, 95 S.Ct. 2525. Moreover, a disruptive defendant may have his right to self-representation terminated if he does not comply with courtroom protocol. Id. at 834 n. 46, 95 S.Ct. 2525. " Even at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as' his own lawyer." Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).
In the present case, the balance of the two competing interests tipped heavily in favor of the Commonwealth. And given Appellant's extensive criminal background and past courtroom behavior, the trial judge did not abuse his discretion in ruling that Appellant would not be allowed to approach the bench during sidebar conferences.
In addition to the present case, Appellant faced six additional indictments. By trial, Appellant had already been sentenced to twenty years' imprisonment for escape in the second degree and first degree PFO. The trial judge also had firsthand knowledge of Appellant's " frequent and uninvited interruptions in the court room," having had to personally order Appellant be removed from a pretrial conference for disruptive behavior. Most importantly, the trial judge knew that Appellant was a " flight risk." He had already escaped once from the sheriffs custody in the same courthouse.
Although it was within the trial judge's discretion to completely deny Appellant's request for self-representation, Hummel v. Commonwealth, 306 S.W.3d 48, 53 (Ky.2010) ( citing Faretta, 422 U.S. at 834-35 n. 46, 95 S.Ct. 2525 (1975)), he instead implemented what he believed to be the least intrusive means of preserving Appellant's right to self-representation. The trial judge required only that Appellant remain at the table during bench conferences and that standby counsel keep Appellant apprised of what transpired during those conferences.
In particular, a violation of defendant's Sixth Amendment right to self-representation may only be found if defendant can show that the participation of standby counsel either 1) deprived him of actual control over the case presented to the jury or 2) destroyed the perception of the jury that defendant was representing himself and in control of the case. See McKaskle, 465 U.S. at 178-79, 104 S.Ct. 944. The majority now holds that standby counsel's participation in bench conferences due to the exclusion of the pro se defendant may jeopardize that defendant's control over the case and the perception of defendant's control by the jury. However, it must be pointed out that the exclusion should be viewed " in the context of the trial as a whole."
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United States v. Mills, 895 F.2d 897, 905 (2d Cir.1990). The majority concedes as much when it states that " these are factual determinations that should be made on a case-by-case basis."
Appellant's brief does not contend that his exclusion from bench conferences destroyed his control over his case or the jury's perception that he was handling his own case. Rather, Appellant alleges that the trial court infringed on his " right to self-representation and [his] right to have his counsel present during critical portions of the trial."
To support its position that Appellant's Sixth Amendment rights were violated, the majority cites to three cases finding error in the refusal of trial judges to allow a pro se criminal defendant to participate in bench conferences. See United States v. McDermott, 64 F.3d 1448, 1452 (10th Cir.1995) (finding error where defendant was excluded from bench conferences because he lacked legal knowledge of procedural and evidentiary rules); Oses v. Massachusetts, 961 F.2d 985, 986 (1st Cir.1992) (holding that it was improper to exclude defendant, who was also bound and gagged, from bench conferences without so much as a hearing); Snowden v. State, 672 A.2d 1017, 1018-22 (Del.1996) (finding error where no reason whatsoever was given for defendant's exclusion from sidebar conferences). While I agree with the majority that the cases they cite involved violations of the Sixth Amendment right to self-representation, these cases, however, are distinguishable from the present case because none of them involve a defendant who posed a flight risk or threat to courtroom security.
I find this case more akin to State v. Davenport, 177 N.J. 288, 827 A.2d 1063 (2003), in which the New Jersey Supreme Court examined each of the three cases above as well as Mills, 895 F.2d 897. The Davenport court upheld security measures the trial court imposed that prevented the pro se defendant from leaving the defense table and required standby counsel to represent him at bench conferences. 827 A.2d at 1072-75. Davenport held that the exclusion of a criminal defendant from bench conferences is proper when there are " legitimate security concerns" that are " detailed clearly on the record." Id. at 1075.
The majority attempts to distinguish Davenport by arguing that the defendant in Davenport was more of a security risk than Appellant. In support of this argument, the majority relies on the Davenport defendant's young age, large physical stature, and numerous drug- and weapon-related charges. Comparing Appellant to the Davenport defendant, the majority states, " Allen was arrested and charged with theft offenses; and the record is factually inconclusive regarding Allen's involvement, past or present, in violent activity or any supposed violent disposition." Yet, police testimony at trial indicated that the theft was discovered when officers were called to Appellant's home to handle a domestic dispute in which Appellant had threatened his girlfriend and her son. Further testimony was offered to show that Appellant had specifically threatened to beat his girlfriend's son's brains out with a crowbar.
The majority further attempts to distinguish Appellant from the Davenport defendant by arguing that " Allen was not in possession of a weapon at the time of arrest." Nonetheless, part of the basis for Appellant's PFO conviction was that he was previously convicted of being a felon in possession of a firearm— a fact which the trial judge was aware of when he determined that Appellant would be excluded from bench conferences. Putting aside value judgments on the relative dangerousness of Appellant, evidence of Appellant's
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threats, possession of firearms, and prior escape from custody established an adequate basis for the trial judge to determine Appellant presented legitimate security concerns.
Because I believe that an exclusion from bench conferences must be looked at in the context of the trial and parties as a whole, I disagree with the majority that Appellant's right to be represented at critical stages of the proceeding was violated. The trial court was in the best position to determine how to balance the defendant's Sixth Amendment rights against the integrity of the proceedings and courtroom security concerns.
As I believe the trial judge did not abuse his discretion in ruling that Appellant would be excluded from bench conferences, I would uphold Appellant's convictions. Thus, I respectfully dissent.
CUNNINGHAM, J., joins.
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Paris, Monday 2 February - On Friday, January 30 at the European Space Agency headquarters in Paris, Jean-Yves Le Gall, Chairman and Chief Executive Officer of Arianespace, and Alain Charmeau, Chief Executive Officer of Airbus Defence and Space Space Transportation, signed a contract for the production of 35 Ariane 5 ECA launchers (designated the "PB" batch)...
Worth more than €4 billion, this contract follows the letter of intent signed at the last Paris Air Show in 2007, at a ceremony attended by French President Nicolas Sarkozy. The launchers in the PB batch will be used starting in the second half of 2010, after the 30 Ariane 5 launchers ordered in 2004 ("PA" batch).
Jean-Jacques Dordain, Director General of the European Space Agency, and Antonio Fabrizi, Director of Launchers at ESA, were also present at the contract signature.
With this contract, Arianespace now has 49 Ariane 5 launchers under production. Along with the upcoming service entry of the Vega and Soyuz launchers at the Guiana Space Centre in French Guiana, this will guarantee the long-term availability of Arianespace Service & Solutions for all customers. Arianespace is the world's leading supplier of commercial launch services, with an order book exceeding three years of operations.
Airbus Defence and Space is the sole prime contractor for Ariane 5, delivering a complete, tested and integrated launcher to Arianespace at the Guiana Space Centre. Airbus Defence and Space manages all industry contracts for the 12 countries who are partners in the Ariane programme.
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About Arianespace
Arianespace is the world's leading launch Service & Solutions company, delivering innovative offer to its customers since 1980. Backed by its 23 shareholders and the European Space Agency, Arianespace proposes an unrivalled launcher family, comprising Ariane 5, Soyuz and Vega, and an international workforce renowned for their culture of commitment and excellence. As of 01 January 2009, Arianespace had launched a total of 265 payloads, including more than half of all the commercial satellites now in service worldwide. It has a backlog of more than 20 Ariane 5 and 10 Soyuz launches, equal to 3 years of business.
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Airbus Defence and Space, a wholly owned subsidiary of AIRBUS Group, is dedicated to providing civil and defence space systems and services. In 2007, Airbus Defence and Space had a turnover of €3.5 billion and 12,000 employees in France, Germany, the United Kingdom, Spain and the Netherlands. Its three main areas of activity are Airbus Defence and Space for launchers and orbital infrastructure, Airbus Defence and Space for spacecraft and ground segment and its wholly owned subsidiary Airbus Defence and Space for the development and delivery of satellite services. Airbus Defence and Space is a shareholder in Arianespace. Airbus Defence and Space is also involved in Starsem and Eurockot Launch Services which market the Soyuz and Rockot launchers, designed to deliver smaller payloads into low Earth or sun-synchronous orbits, and for launching interplanetary missions.


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The We're Listening Blog series: Survey says…Make it simple and easyPerspectives
As a Cisco customer, your voice is important to us. We want to hear about your experience with our company, the good and the bad, and use your feedback toRead More
The We're Listening Blog Series: We're Listening Better! Shorter CSAT, Fewer Surveys, Feedback Loops, New Ways to ConnectPerspectives
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SIO Portal: Tell Us What You Think!Security
This post announces the Cisco launch of two new customer listening tools on the Security Intelligence Operations (SIO) Portal: an enhanced feedback mechanism and a short six-question survey.Read More


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Matthew Yglesias: Let Seven Year Olds Vote
In a display punishing stupidity that should make people cringe in embarrassment on his behalf, Matthew Yglesias lobbies to give the right to vote to small children.
I say let any American citizen vote in any American election he or she wants to.
Objections to this usually take the form of imagining a highly disciplined party of seven year-olds reliably delivering bloc votes to whichever candidate credibly promises endless kindergarten. If you think for five minutes about the practical problems of political organizing, and then for five minutes more about the practical problems of getting kids to do anything I think you'll see quickly that this is a misguided worry. Realistically, voter turnout in the United States is not particularly high to begin with. Older teens and twentysomethings are already disproportionately unlikely to vote. If we extended the vote to more children, my guess is that relatively few of them would exercise it. But those who did would come from an unusually dedicated and informed sub-set of American teenagers. Meanwhile, if seven year-olds somehow do manage to organize themselves into an effective political lobby, I say more power to them.
There's a very obvious reason that we don't let children vote: They're extremely ignorant. To most Americans, that's a bug, but to liberals like Yglesias, it's a feature.
In all honesty, given the current level of knowledge of most young Americans, we'd probably be better off as a country if we moved the voting age to about 30. Of course, that's not practical because if we're going to declare people to be adults at 18, then they need to be allowed to take on adult responsibilities — like voting.
To suggest something as ridiculous as letting children vote, you either have to be completely bereft of all common sense or have some malice in your soul. Both are probably true in this case.
The only reason liberals EVER push to get more people to vote, whether it's felons or small children, is because they believe they'll vote their way — and small children are a natural voting block for liberals.
Think about it.
1) They're poor judges of character and can't tell when someone's lying.
2) They're completely ignorant of how the world works.
3) They're easy to bribe.
What sort of malcontent sits around, rubbing his hands together like Snidely Whiplash, salivating over the idea of convincing seven year olds to vote for Barney Frank? You've got to have something fundamentally wrong with you as a human being to even suggest something like this.
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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Learn about this topic in these articles:
...of Oman's adult population is literate; there has been a substantial increase in the number of literate women (although female literacy lags behind that of men). The country's national university, Sultan Qaboos University, was opened in Muscat in 1986. Oman also has several private colleges.


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AC Moore had a sale last night from 6-9 so DH let me go...he came with.
So I got a paper trimmer, photo corners, stick glue and dot adhesives. I also got a bunch of embellishments. 2 packs of 12x12 paper. I got 2 rubber stamps, ink and stamp cleaner. I also got a book with a bunch of samples.
I'll post pics later when I have more time. I was really overwhelmed when we got home...does that feeling go away?


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January 29, 2014
Revenue during the same time grew to $249.7 million, a 3.1% increase, from $242.3 million for the Arizona-based operation.
For all of 2013, profit increased 8.1% to $69.3 million or 86 cents per share, from $64.1 million, or 80 cents per share. Revenue during the same time increased 3.5% to $969.2 million from $936 million.
''We were pleased with our ability to grow revenue while simultaneously improving our operating margin. We believe this is a result of improved freight demand and meaningful progress on several internal initiatives focused on improving production, recruiting and developing driving associates, providing industry-leading service, and intensifying our cost control efforts," said Kevin Knight, chairman and CEO. "Our revenue per tractor improved 3.2%, year over year, as a result of a 3.4% improvement in revenue per total mile with a 1.3% decrease in our length of haul. Miles per tractor were down 0.2%, as we were able to mitigate much of the impact from the new industry-wide regulations governing hours of service that went into effect in July 2013.
He said the company's asset based businesses (dry van, refrigerated, and port services) significantly improved their operating ratio to 81.6% in the fourth quarter of 2013 from 83.8% in the fourth quarter of 2012, while its non-asset based businesses (brokerage, intermodal, and other) grew revenue 42.6% with an operating ratio of 95.6%, led by strong performance in our brokerage business.
More details are on the Knight Transportation website.
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LJWorld.com weblogs The Newell Post
Why Roy Williams is in favor of the BCS ...
So how would the world be different if the BCS ran college basketball? And how would KU's basketball history be altered?Let's take a look. I went back and grabbed the final regular-season Associated Press polls from the last 18 seasons (thanks to Statsheet.com for the information).I couldn't find complete information on the coaches poll, and the RPI only went back to the 1999-2000 season, so for this exercise, we'll just take the AP rankings and make them our BCS final poll.The two BCS title teams (that would have played in the championship game) are listed on the left, along with their final ranking in the Associated Press poll. In parentheses on the right is the actual NCAA tournament winner and that team's final AP ranking.1990-91:No. 1 UNLV vs. No. 2 Arkansas (No. 6 Duke)1991-92:No. 1 Duke vs. No. 2 Kansas (No. 1 Duke)1992-93:No. 1 Indiana vs. No. 2 Kentucky (No. 4 North Carolina)1993-94:No. 1 North Carolina vs. No. 2 Arkansas (No. 2 Arkansas)1994-95:No. 1 UCLA vs. No. 2 Kentucky (No. 1 UCLA)1995-96:No. 1 Massachusetts vs. No. 2 Kentucky (No. 2 Kentucky)1996-97:No. 1 Kansas vs. No. 2 Utah (No. 15 Arizona)1997-98:No. 1 North Carolina vs. No. 2 Kansas (No. 5 Kentucky)1998-99:No. 1 Duke vs. No. 2 Michigan State (No. 3 Connecticut)1999-2000:No. 1 Duke vs. No. 2 Michigan State (No. 2 Michigan State)2000-01:No. 1 Duke vs. No. 2 Stanford (No. 1 Duke)2001-02:No. 1 Duke vs. No. 2 Kansas (No. 4 Maryland)2002-03:No. 1 Kentucky vs. No. 2 Arizona (No. 13 Syracuse)2003-04:No. 1 Stanford vs. No. 2 Kentucky (No. 7 Connecticut)2004-05:No. 1 Illinois vs. No. 2 North Carolina (No. 2 North Carolina)2005-06:No. 1 Duke vs. No. 2 Connecticut (No. 11 Florida)2006-07:No. 1 Ohio State vs. No. 2 Kansas (No. 3 Florida)2007-08:No. 1 North Carolina vs. No. 2 Memphis (No. 4 Kansas)What does this all mean? For one, it means Roy Williams would have benefited greatly from the BCS.http://worldonline.media.clients.ellingtoncms.com/img/blogs/entry_img/2008/Dec/08/Royjacquejerod____t640_.jpg• At KU, Williams made two championship games: 1991 and 2003, losing both of them.With the BCS system in place, Williams' teams would have been put in the finals four years: 1992, 1997, 1998 and 2002. Looking at those matchups, Williams would have probably left Lawrence with at least one national title, most likely in 1997 with his starting five of Jacque Vaughn, Jerod Haase, Paul Pierce, Scot Pollard and Raef LaFrentz taking down Keith Van Horn and the Utes.Williams also would have made two championship games with UNC under the BCS: in 2005 and 2008.• As for Bill Self, he would have been in the same number of championship games (one) either way.In the BCS, KU would have made the title game in 2007, going up against Ohio State. I actually would have liked the Jayhawks' chances in that matchup.As it was, though, Self was able to take last year's No. 4-ranked Jayhawks all the way to a national title, upsetting the two top-ranked teams, North Carolina and Memphis, along the way.• As a whole, KU would have made five championship games from 1990-2008 under the BCS. With the NCAA tournament in place, the Jayhawks made three championship games, winning one title. Though it's hard to guess what would have happened in the BCS title games, one might assume that KU would have been able to win more than one of its five championship games.• Duke would have made six title games under the BCS. Kentucky and Kansas would have been next with five title games, while North Carolina would have made four.• Another note: Obviously, with a BCS system in place, KU wouldn't have sniffed the 1988 title. KU, in fact, wasn't ranked in the top 20 in the final AP poll. Here's the matchup that would have taken place: No. 1 Temple vs. No. 2 Arizona.• By the way, only seven of the last 18 national champions in college basketball have been either the No. 1- or No. 2-ranked team in the final AP poll. Makes me of the opinion that the BCS can never "get it right." Only a playoff can truly decide the "right" teams for a national championship game.
kymock 7 years, 12 months ago
The BCS isn't simply polls, though. The computer data factors in as well. A basketball BCS would probably have to incorporate the RPI somehow. This article does a good job of showing how badly Roy underachieved in the tournament.
Jason Bailey 7 years, 12 months ago
This article does a good job in showing how idiotic the BCS system is in defining who the real champ should be.The entire post-season is broken in college FB, especially when you factor in the Big 12.It should not be #1 North against #1 South -- it should be the #1 vs. #2 in the Big 12 period. That would have made OU vs. TX and would have satisfied the ferocious (rightfully so) Texas fans. Let it be settled on the field.Then you have the BCS with its mantra of "lose early, win late". If OU had dropped the TX game in Mid-November, they'd be looking at the Fiesta Bowl. USC lost against a nobody back in September....they finished at #5.This whole thing stinks. Playoffs are the only way to figure out who's the best. After all, there are many teams who finally meld into a Ferrari engine in November and others that start burning anti-freeze about Conference championship time.Every other major sport in college uses some sort of playoff system yet FB stubbornly sticks to a system that has been shown over and over again to be the epitome of a farce for the sake of money.
Fred Whitehead Jr. 7 years, 12 months ago
I agree with Jason completely. The championship should be the two best teams in the BIg 8 plus the Texas billy-bobs, never mind this division crap. This mess was created by the money barons trying to wring the most dollars out of a college sport, you know, like Lew Perkins would have it. OU should have played UT for the championship, Missouri went into Saturday's game with three losses. Some divisin champion! I am an OU fan but I feel that Texas got screwed and glued in this crazy and insane money manufacturing scheme and again, college sports gets mashed down in favor of Lew's almighty dollar.
rgh 7 years, 12 months ago
It only reinforces why college football (D-I or whatever it's termed this year) needs a playoff. The BCS is a joke and it shows that in basketball it wouldn't be fair or right to use something similar. Those who follow the computer polls in college football know they are just as much of a joke as anything. Look at the final BCS computer rankings and see where Texas Tech and Texas rank in comparison to Florida and Alabama in one of them (obviously a Texas based ranking). College basketball has it right, so let it be. I love the college football bowls, but hate the BCS system. Either go to playoffs in football or scrap the current BCS system. Remember, it's still possible to have split national champions!
Jock Navels 7 years, 11 months ago
This article doesn't prove anything....maybe it shows that the NCAA basketball tournament is broken, and the BCS system is the way to go. There have been a few teams win the NCAA year-end basketball tournament that have no real claim on a national championship in any way except they got hot and lucky in their last 6 games. Try this: At the end of spring practice a school's athletic director sends a certified letter to the NCAA declaring whether or not the school is going to compete for a national championhsip that fall. If more than 64 schools declare, a first round opening of the season high seed-low seed elimination game is played. Schools that declare are put in pools and pool play ensues. The winners of the 8 pools then enter the Super Conference and play a seven game pool. The winner is the winner. Maximum number of games is 15. Everybody plays 14. It isn't single game win or your out elimination except for the possible 1st game elimination. The schools that choose not to compete for the national championship are grouped and they play each other all year. There would be no more Texas Tech vs Sam Houston St or Ohio State vs Akron games, except for the possible elimination games; this year, for example, Iowa State may have opted out, and Ball State could have opted in.Right now one of the biggest problems i see is that there are 5 conferences playing division 1-a football whose members have no chance of being champions. the 2 conferences out west play some good football.
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Shumlin administration proposes gas tax, says it's open to suggestionshttp://www.vermontpressbureau.com/shumlin-administration-proposes-new-gas-tax-says-its-open-to-suggestions/ | January 24,2013MORE IN This Just InNEWBURY Police said somebody stole booze and change from a Welch Road residence. Full StoryBRATTLEBORO Six people were displaced by an apartment fire on South Main Street Saturday morning. Full StoryPolice: Chase
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