Eighth Circuit: Defendant Facing Revocation of Supervised Release Did Not Knowingly and Voluntarily Waive Right to Counsel Where Appointed Counsel Admittedly Knew Nothing About Case and Advised Choosing Between ‘Big House or the Nut House’
by Mark Wilson
The U.S. Court of Appeals for the Eighth Circuit vacated a Minnesota man’s 12-month supervised release revocation sanction, finding that the U.S. District Court for the District of Minnesota improperly forced him to choose between inadequate counsel and no counsel during revocation proceedings.
Phillip Ivers was convicted of threatening to murder a federal judge and interstate transmission of a threat. He was sentenced to an 18-month prison term and 36-month supervised release term. He began serving his supervision term in August 2019. After two 6-month revocation sanctions, Ivers was released on supervision again on September 7, 2021.
Three days later, the Government moved to revoke Ivers’ supervised release a third time. Ivers appeared at the October 18, 2021, revocation hearing with appointed counsel who had not represented him at the previous revocation hearings.
Counsel informed the court that Ivers did not want the attorney to represent him because the attorney admitted “that he doesn’t know anything about my case.” Ivers was concerned that his attorney did not even know what his charges were. Additionally, the attorney admitted that he told Ivers that he “was as dumb as a doorbell or a doorknob.” Ivers said the attorney also told him that he slid through law school and Ivers would need to “pick the big house or the nut house.” Counsel did not dispute lvers’s claims. Ivers asked the court to appoint his previous attorney saying “she knows my case inside and out.”
The court refused, telling Ivers he could proceed with his current attorney or represent himself, but he had to “pick one or the other.” Ivers chose to represent himself but said he “wouldn’t mind having a qualified attorney sit next to” him.
After advising Ivers that it was unwise to represent himself, the court conducted a Faretta hearing and found that Ivers knowingly and voluntarily waived his right to counsel. Faretta v. California, 422 U.S. 806 (1975) (defendants have a constitutional right to decline counsel and represent themselves in state criminal proceedings as long as it is done so voluntarily and intelligently). The court did not explore the attorney’s understanding of the charges or his competency to represent Ivers. At the conclusion of the hearing, the court revoked lvers’ supervised release a third time and imposed a 12-month prison term. Ivers appealed.
The Court began its analysis by noting defendants have a statutory right to counsel at revocation hearings. United States v. Owen, 854 F.3d 536 (8th Cir. 2017); see also 18 U.S.C. § 3006A(a)(1)(E); Fed. R. Crim. P. 32.1(b)(2)(D). Waiver of counsel at a revocation hearing is reviewed to determine whether the court’s “acceptance of that waiver violated [the defendant’s] right to due process.” Owen. The inquiry is flexible, focusing “on the fundamental fairness of the hearing.” United States v. Boultinghouse, 784 F.3d 1163 (7th Cir. 2015). The Court cautioned that the right to counsel at revocation hearings is not based on the Sixth Amendment; nevertheless, the right to counsel implicates liberty interests. Owen.
Waiver of counsel at revocation hearings “must be knowing and voluntary as demonstrated either through a colloquy with the district court, or by the totality of the circumstance, or both.” Owen (quoting United States v. Hodges, 460 F.3d 646 (5th Cir. 2006). Defendants don’t have an absolute right to select counsel of their choosing. Id. (citing United States v. Mentzos, 462 F.3d 830 (8th Cir. 2006). Consequently, defendants’ right to counsel is not violated when given a choice “between adequate representation and self-representation.” Id. (quoting Mentzos). But the right to counsel is violated when given the choice between inadequate counsel or no counsel. Id. The Court stated that defendants bear the burden of showing the court forced them to choose between inadequate representation or self-representation.
Turning to the present case, the Court determined that Ivers satisfied this burden. “The evidence shows an attorney who was not prepared to handle a revocation of supervised release hearing. The attorney stated he ‘was as dumb as a doorbell or doorknob’ and told Mr. Ivers that [he] would have to ‘pick the big house or the nut house,’” the Court recounted. “The attorney did not know anything about Mr. Ivers’ case or what conditions of supervision [he] had allegedly violated.”
The Court explained that the attorney’s statements show that he was unprepared to handle Ivers’ revocation hearing because he was not capable of adequately defending or of making mitigating arguments in the proceeding. It concluded that Ivers was forced to choose between an unprepared attorney or none at all. Thus, the Court held that Ivers’ decision to waive his right to counsel was not made knowingly and voluntarily and that his due process rights were violated.
Accordingly, the Court reversed the revocation judgment and remanded for further proceedings. See: United States v. Ivers, 44 F.4th 753 (8th Cir. 2022).
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