GOODS V. COM.
CRIMINAL:  PRO SE REPRESENTATION AND WAIVER OF RIGHT TO COUNSEL
2006-CA-001187
PUBLISHED; AFFIRMING 
PANEL: WINE PRESIDING; LAMBERT, TAYLOR CONCUR
COUNTY: KENTON
DATE RENDERED: 11/02/2007

Trial court found defendant indigent and appointed him counsel.  Defendant later moved to represent himself, and motion was granted following a hearing.  COA affirmed conviction of defendant who represented himself on charges of drug trafficking and persistent felony offender in the second degree.

Goods claims that the trial court failed to sufficiently ascertain that his waiver of his right to counsel was knowingly, intelligently and voluntarily made. Goods conceded that the issue was not properly preserved for review.

However, the Kentucky Supreme Court has recognized that the sufficiency of a defendants waiver of counsel is a structural issue which goes to the fundamental fairness of the proceedings. Therefore, the issue is not subject to harmless error analysis.

The right to counsel contained in the Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution is accompanied by a concomitant right to waive counsel and represent oneself. But, when a defendant unambiguously indicates his desire to exercise this right, the trial court has a duty to establish on the record that the defendant is waiving or limiting his right to counsel voluntarily, knowingly and intelligently.

In this case, the trial court met all of these requirements. Goods made an unequivocal request to dismiss his trial counsel and proceed pro se. The trial court then conducted a hearing during which it extensively questioned Goods about his desire to represent himself.  The court strenuously warned Goods of the hazards of representing himself, and made it clear that Goods would be subject to all applicable rules of evidence and procedure. In addition, the trial court informed Goods that it would make sure that his counsel was ready by the time of trial. Nevertheless, Goods insisted that he wanted to represent himself. Thereafter, the trial court made oral and written findings that Goods had made a knowing, voluntary and intelligent waiver of his right to counsel.

Goods complains that the trial court never explicitly determined the depth of his legal knowledge. However, a defendant’s lack of legal expertise is irrelevant to this inquiry.

Finally, Goods points to his statements at the hearing and at other pretrial hearings that he wanted to employ private counsel but could not afford to do so. Goods sought to recover money which had been posted or seized in another case. He contends that his inability to recover this money forced him to proceed pro se. However, the COA agreed with the trial court that the motion was not properly raised in this action. Consequently, the trial court was not obligated to pursue the matter itself or to direct standby counsel to take up the issue in the other action. AFFIRMED.

Digested by Michael Stevens