STONE V. COM.
CRIMINAL: Right to Counsel
TO BE PUBLISHED: REVERSING (CUNNINGHAM)
DATE RENDERED: 3/22/2007
SC reversed Defendant’s conviction for Trafficking in a Controlled Substance. The issue presented was whether Defendant’s rights under the Sixth Amendment of the federal Constitution and Section Eleven of the Kentucky Constitution were violated by the thirteen-month period during which Defendant represented himself absent a valid waiver and notwithstanding his expressed desire for hybrid representation. Defendant was denied counsel at a critical stage of his prosecution, namely, the plea bargaining conference, in violation of his Sixth Amendment rights. Despite the compelling argument that any error herein should be deemed harmless, SC was bound by the U.S. Supreme Court’s very clear dictates that the complete denial of counsel at a critical stage is reversible error per se, not subject to harmless error review.
TC clearly erred by failing to inform the Defendant that hybrid representation was his right under Section Eleven of the Kentucky Constitution, a point which the Commonwealth concedes. Defendant’s Sixth Amendment rights were not implicated in this error, however, as the federal Constitution does not similarly afford criminal defendants the right to act as co-counsel. However, Defendant’s Sixth Amendment rights were violated by the trial court’s failure to hold a timely Faretta hearing. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L .Ed.2d 562 (1975).
Digested by Scott Byrd