Lead Opinion
Opinion of the Court by
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.
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 confíne our discussion of the other issues Allen raises to those likely to recur in the event of a retrial.
I. FACTUAL BACKGROUND.
Grace Fellowship Church was burglarized. The church reported that several itеms 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
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 Ver-da’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 $800 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.
II. ANALYSIS.
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.
A trial court ruling on a directed verdict motion must draw all fair and reasonable inferences in the Commonwealth’s favor.
Allen protests that he is entitled to a directed verdict on the charges of third-degree burglary,
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 “[cjonviction 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.”
Here, the jury found Allen guilty of possessing the stolen laptop.
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 pri-ma 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
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 prevеnted 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] [cjourt.” 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).
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 сounsel 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,
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.
“[A] trial court may appoint standby counsel for a defendant even if the defendant objects to such an appointment.”
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 defen
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}
In Snowden v. State,
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.
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.
The trial court did not abuse its discretion in finding Allen was a flight risk. Only a few months before, Allen left thе 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 disrup
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.
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.”
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
Allen’s exclusion from bench conferences implicates his Sixth Amendment right to be represented by counsel at all critical stages of a criminal proceeding.
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 whо 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.”*
Standby counsel is distinguished from hybrid counsel, which is an attorney that acts as co-counsel with the defendant.
We agree with the Sixth Circuit Court of Appeals that “[glenerally, standby counsel does not satisfy a defendant’s Sixth Amendment right to counsel.”
“[A]n analysis of a critical stage necessarily involves a rеtrospective 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.”
The bench conferences at Allen’s trial were critical stages of the criminal proceeding.
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 thеse bases, Allen requested a eontinu-
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.
The Commonwealth, as well as the dissent, points us to State v. Davenport,
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.”
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 аnd 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
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 instancе, 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.
In United States v. McDermott,
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.”
Thе 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.”
Allen argues that evidence concerning this judgment was inadmissible for purposes of finding him a PFO 2 because
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,
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 Mel-son, 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.
III. CONCLUSION.
Sufficient evidence supported Allen’s сonvictions 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.
Notes
. Ky. Const. § 110(2)(b).
. Allen does not challenge the sufficiency of the evidence supporting his conviction for receiving stolen property.
. At the close of the Commonwealth’s case, Allen’s standby counsel moved for a directed verdict on counts 1, 2, and 3. The trial court pointed out that only Allen could move for a directed verdict. At which point, Allen adopted counsel’s motions as his own. Because his motion was not followed by more evidence, Allen was not required to renew his motion in order to preserve the issue for appeal. Hampton v. Commonwealth,
. Commonwealth v. Benham,
. Id.
. Id.
. Id. at 187-88.
. A person is guilty of third-degree burglary "when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building.’’ Kentucky Revised Statutes (KRS) 511.040(1).
. "A person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more.” KRS 512.020(1).
. ”[A] person is guilty of theft by unlawful taking or disposition when he unlawfully: (a) Takes or exercises control over movable property of another with intent to deprive him thereof[.]” KRS 514.030(l)(a).
. Graves v. Commonwealth,
. Davenport v. Commonwealth,
. Again, Allen does not challenge his conviction for receipt of stolen property under $300.
. Conover v. Commonwealth,
. Roark v. Commonwealth,
. The witnesses that Allen attempted to call were either not present or not allowed for various reasons.
. "[T]he right of counsel guaranteed by Section 11 of the Kentucky Constitution is no greater than the right of counsel guaranteed by the Sixth Amendment of the United States Constitution....” Cain v. Abramson, 220 S.W.3d 276, 280-81 (Ky.2007) (citing Cane v. Commonwealth,
. Deno v. Commonwealth,
. To ensure these requirements are satisfied, the trial court must hold what has become known as a Faretta hearing in which the defendant "testifies on the question of whether the waiver is voluntary, knowing, and intelligent”; "during the hearing, the trial court must warn the defendant of the hazards arising from and the benefits relinquished by waiving counsel”; and "the trial court must make a finding on the record that the waiver
. Major v. Commonwealth,
. Faretta v. California,
. We also note that "[a] defendant can waive his Faretta rights. Participation by counsel with a pro se defendant’s express approval is, of course, constitutionally unobjectionable. ... [A] pro se defendant’s solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.” McKaskle,
. Chapman v. Commonwealth,
. Major,
. Partin v. Commonwealth,
. Faretta,
. Hummel v. Commonwealth,
. Martinez v. Court of Appeal of California, Fourth Appellate Dist.,
. Chapman,
. McKaskle,
. Id. at 178,
. See, e.g., Snowden v. State,
.
. Id. at 1020.
. Id. at 1021-22.
. Likewise, the trial court in People v. Rosen provided no reason for refusing to permit Rosen to attend bench conferences.
.When a trial court determines that a defendant is unable or unwilling to abide by courtroom protocol, it may deny a request for self-representation. A trial court may also deny such a request if it is made purely as a tactic to disrupt or delay proceedings. These decisions of the trial court are reviewed for abuse of discretion. Hummel,
. Although Allen was not placed in handcuffs or shackles during trial, the trial court restricted his movement in the courtroom by requiring him to present his case from counsel table, unlike opposing counsel, who had free movement about the courtroom during trial.
. This practice was condoned by the Supreme Court in Wake v. Barker,
. By way of comparison, Allen’s actions were mild compared to those of the defendant in Hummel,
. As discussed above, trial courts can appoint standby counsel over a defendant's objections.
. Partin,
. McKaskle,
. Id. at 183,
. We have previously examined the right to counsel at all critical stages in conjunction with the right of self-representation under different factual circumstances from Allen’s case. In Stone v. Commonwealth,
. Stone,
. Black’s Law Dictionary (9th ed.2009).
. Id.
. See Deno,
. Swan v. Commonwealth,
. Stone,
. King v. Bobby,
. United States v. Mills,
. Stone,
. Id. (citing Van v. Jones,
. See United States v. Minsky,
. All of this information was relayed to the trial court by Hudson.
. The trial court in Hummel appointed hybrid counsel: "The court then instructed defense counsel to present the defense that Appellant wanted, under Appellant’s direction. Counsel then did so, conferring with Appellant during direct- and cross-examination.” Hummel,
. United States v. Mack,
. Id. at 601.
. Id. at 602.
. But see Davis v. Grant,
.
. Id. at 1073.
. Id. at 1072. We note the difference of the flight risk posed by Allen and the security risk posed by Davenport — an alleged drug kingpin charged with assault in addition to other drug- and weapon-related charges.
. The Rhode Island Supreme Court also held that a defendant’s right to self-representation was not violated by exclusion from sidebar conferences in State v. Thornton,
. The New Jersey Supreme Court also stated that "whatever erosions were occasioned on defendant’s Faretta right were tolerable, and did not rise to the level of a violation of the right.” Id. at 306-07,
. Davenport,
. We acknowledge that Allen was previously convicted of being a felon in possession of a firearm. Allen’s collateral attack of this conviction remains undetermined. The Court of Appeals vacated the trial court’s order denying Allen’s motion for relief from the judgment under RCr 11.42. See Ricky Allen v. Commonwealth, 2010-CA-001717-MR (Ky.App. Oct. 19, 2001). To this Court’s knowledge, no further action has been taken.
. Id. at 1075 ("In circumstances in which trial courts determine that defendants should not be allowed at sidebar, we expect that the legitimate security concerns that necessitate such a finding will be detailed clearly on the record.”).
. Id. at 1072. We would add that according to the court in Davenport, this was not an isolated incident. "The record indicate[d] that a number of times when substantive information was being discussed at sidebar, the court excused the jurors and provided defendant with a restatement to ensure his full inclusion.” Id. at 1068.
. Id. at 1068.
. In fact, the court in Davenport offered suggestions for how trial courts, in the future, should handle such situations so that "defendants can participate in sidebars to the fullest extent possible without compromising courtroom security.” Id. at 1075. The Court suggested that this "may be accomplished, in appropriate circumstances, through defendant's physical presence at sidebar when safety is not a concern, through minimal use of standby counsel as a conduit, by sending the jury to the jury room and having the discussion in open court ..., or even through advances in courtroom technology.” Id.
.Id. at 1075.
. For example, during a detective's testimony, the judge called two bench conferences to inform the prosecutor that his line of questions was improper. The trial court also called a bench conference because the prosecutor sought to introduce evidence that the court said had not been properly authenticated.
. McKaskle,
.
. Id. at 1453.
. Id. ("His standby counsel ... did nothing more than what standby counsel might be expected to do: consult, make some objections, help with the admission and admissibility of exhibits, and make some motions.”).
. Stone,
. McKaskle,
. KRS 532.080(2).
. An order amending the judgment was entered in April 2000.
. Alternatively, Allen claims that we should review for regular error because Napue v. Illinois,
.
. We decline Allen’s invitation to disregard the statement of the law in Melson as dicta. While Melson involved the use of prior convictions for purposes of a truth-in-sentencing hearing, the Court explicitly applied the concept to the use of prior convictions for purposes of the PFO statute. And the reasoning is equally applicable. An RCr 1.1.42 motion is a collateral attack on a judgment as opposed to a direct appeal, regardless of whether the Commonwealth seeks to use the judgment in a truth-in-sentencing hearing or to bring a PFO charge.
.Nor does the PFO statute, KRS 532.080, require the time for an RCr 11.42 motion to pass before a conviction can be used to convict a defendant of being a PFO. "Under the plain lаnguage of KRS 532.080(2), a defendant is convicted of a previous felony that can serve as the basis of a PFO 2 charge if (1) a sentence to a term of imprisonment of one year or more or a sentence to death was imposed, (2) the defendant was over 18 years old at the time he committed the offense, and (3) one of the five alternatives listed under subsection (c) is met.” Commonwealth v. Derringer,
Dissenting Opinion
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,
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,
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,
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,
I find this case more akin to State v. Davenport,
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 Ap
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.