MARVIN, Chief Judge.
Having been convicted by a jury of distribution of codeine and distribution of a counterfeit controlled dangerous substance and sentenced as a third felony offender to concurrent hard labor terms of 30 and five years respectively, Christopher Drumgole appeals, with appellate counsel, his convictions and sentences after having represented himself in the trial court. La. R.S. 40:968, 971.1; 15:529.1. Drumgole's four assignments question the validity of his waiver of the right to counsel, the sufficiency of the evidence to convict, the legality of the habitual offender adjudication and excessiveness of sentence.
Pretermitting the other assignments and concluding on this record that Drumgole did not knowingly and intelligently waive his right to counsel, we reverse the convictions, vacate the sentences and remand for a new trial.
INITIAL WAIVER OF COUNSEL
Drumgole was arrested on June 27, 1997, and was formally charged with two counts of distribution of counterfeit CDS by bill of information filed in the Franklin Parish district court on July 23, 1997. The bill was later amended to charge one count of counterfeit CDS distribution and one count of distribution of codeine, the offenses of conviction.
The case was originally assigned to Division A of the district court and the public defender for that division was appointed to represent Drumgole. Two other charges were pending against Drumgole in Division B of the same court, however. On motion of the Division A public defender made at Drumgole's arraignment on August 12, 1997, the Division A charges were transferred to Division B and the public defender for that division was appointed to represent Drumgole on all charges. Before being relieved of his duties, the Division A public defender waived formal arraignment and entered a plea of not guilty to all four charges on Drumgole's behalf in Division A, apparently because the judge assigned to Division B was on a temporary leave of absence until September 23.
After the public defender entered the not guilty pleas, Drumgole addressed these remarks to the Division A trial judge, Judge McIntyre:
(Our emphasis and brackets.)
After asking the prosecutor whether he was prepared to hold the preliminary examination that day, the court conducted this colloquy with Drumgole:
(Our emphasis and brackets.)
Accepting Drumgole's perception of his competence to represent himself, the court did not inquire on the record about Drumgole's age, his educational background, his mental
(Our emphasis and brackets.)
The court instructed the public defender to remain in the courtroom to "assist ... and not necessarily represent" Drumgole, who then filed another pro se motion seeking to be transferred back to the Franklin Parish jail:
(Our emphasis and brackets.)
LATER PROCEEDINGS
September 24 Motion Hearing
The hearing on Drumgole's motion for a preliminary examination was also deferred until Judge Roberts' return, being held on
At the request of the public defender, Mr. Ellis, the court asked Drumgole, "Do you want Mr. Ellis to assist you or would you rather not have Mr. Ellis assisting you?" Drumgole replied, "Well, I'd rather—I can do it,
(Our emphasis and brackets.)
The court then began hearing Drumgole's various motions and allowed Drumgole to take written notes without making any further inquiry into the validity of Drumgole's earlier waiver of counsel.
Drumgole had apparently been moved back to the Franklin Parish jail shortly before the September 24 hearing, making it unnecessary to try his motion for a transfer. Drumgole's motion to suppress evidence on the basis of the state's inadequate discovery responses was tried and denied. Drumgole withdrew his motion for a preliminary examination after complaining that the six-week delay in hearing that motion "bought time for the State" to build a stronger case against him while he was in the Rayville jail, without access to a law library or to his witnesses. Addressing Drumgole's assertion that he had been prejudiced by the delay, the court stated, "There's no prejudice shown."
Other Pre-trial Hearings
At the next court hearing on October 16, 1997, the state amended the bill of information to change one of the original two counts of counterfeit CDS distribution to a charge of distribution of codeine in an amount causing it to be classified as a Schedule III rather than a Schedule II CDS. The prosecutor incorrectly stated that the penalty "is actually less for this charge than for the original charge." See and compare La. R.S. 40:968 (not more than ten years for distribution of Schedule III codeine) and § 971.1 (not more than five years for distribution of a counterfeit CDS).
At the October 16 hearing, Drumgole filed a motion to quash and motions for an unsecured bond and a continuance, which were heard and denied on October 22, 1997. In his motion to quash, Drumgole alleged that his right to have access to the courts had been violated by the delay in holding a hearing on his motion for a preliminary examination and by his unexplained transfer from a jail with a law library (in Franklin Parish) to a jail without a law library (in Rayville).
Pre-trial Writ Application
On October 24, 1997, Drumgole mailed a pro se application for a supervisory writ to this court, complaining of the trial court's rulings on his various pre-trial motions. The writ application was filed in this court on November 10 and denied on November 19 for noncompliance with URCA Rule 4-3. In the writ order, this court noted that "this incomplete record does not show a proper waiver of counsel" and set forth the guidelines for securing a valid waiver as explained in State v. Strain, 585 So.2d 540, 542 (La.1991):
Reviewing the September 24 colloquy between Drumgole and Judge Roberts, which dealt primarily with the practical problems involved in appointing a lawyer to represent a criminal defendant who desires to represent himself, this court, on November 19, 1997, concluded:
(Emphasis and brackets supplied.)
Unfortunately, Drumgole's case was tried to a jury on November 3-4, 1997, a few weeks before this court rendered its instructions to the trial court in the November 19 writ order. Judge Roberts, the presiding trial judge, allowed Drumgole to represent himself at trial based on Drumgole's earlier purported waiver of counsel at his arraignment before Judge McIntyre without any further inquiry on the self-representation issue. The jury found Drumgole guilty as charged.
Habitual Offender Adjudication
After Drumgole's trial, the state brought habitual offender proceedings seeking to enhance the sentences. Drumgole requested and was appointed counsel, who objected to the habitual offender bill on several grounds including the lack of a valid waiver of counsel. After a hearing before Judge Roberts on January 13, 1998, the trial court made these findings:
(Our emphasis and brackets.)
While disregarding the present offenses for purposes of calculating Drumgole's multiple offender status under La. R.S. 15:529.1 on the basis of the questionable waiver of counsel, the court simultaneously sentenced Drumgole for those same offenses, finding Drumgole to be a third rather than a fourth felony offender and imposing an enhanced 30-year sentence for cocaine distribution (La. R.S. 40:968, 15:529.1), with a concurrent five-year sentence for distribution of a counterfeit CDS (La. R.S. 40:971.1).
Drumgole argues on appeal that his waiver of counsel was invalid, and that this defect amounts to reversible error in his convictions, his habitual offender adjudication and his sentences.
DISCUSSION
The validity of a purported waiver of counsel is determined by the record of the colloquy conducted with the defendant at the time the waiver is accepted by the trial court.
Under the guidelines of Strain, supra, the record of a defendant's purported waiver of counsel must affirmatively show that the waiver is not only voluntary, but also knowing and intelligent. The record must show that the defendant is aware of the nature of the charges and the penalty range, and of his right to counsel, at no charge to him if he is indigent. The nature, complexity and seriousness of the charges has a bearing on the extent of the judicial inquiry required for a valid waiver: A more thorough inquiry is required to allow a defendant to represent himself at a felony trial than is required to accept his uncounseled guilty plea to an uncomplicated misdemeanor. 585 So.2d at 543-44.
Among the factors bearing on the defendant's competence to understand the significance of the waiver are the defendant's age, educational background, mental condition, past experience with legal matters and conduct during the present proceeding. This information should be explicitly stated on the record and may be elicited by direct questioning of the defendant. The trial court must also advise the defendant of the dangers and disadvantages of self-representation, again considering the nature, complexity and likely manner of disposition of the charges (trial or plea). Id.
Drumgole faced multiple felony charges which were to be disposed of by trial, some of which involved a co-defendant. At the August 12 arraignment on the present charges, the trial court advised Drumgole that self-representation at trial was "a pretty heavy responsibility" and explained some of the dangers and disadvantages of proceeding without a lawyer. The court did not, however, inquire about Drumgole's understanding of the charges against him and the potential penalties he faced if convicted, or elicit any objective information about Drumgole's age, his educational background, his mental competence or the degree of his familiarity with criminal law and procedure.
The only direct questions asked of Drumgole by the court were, "Do you want to represent yourself?" and "[Do] you feel like you're competent mentally and [in] every other way to handle your case?" The court accepted Drumgole's answers without further questioning, notwithstanding Drumgole's assertion at the same hearing that he had been moved to a jail which did not have a law library. The court's conclusion that Drumgole "apparently has some knowledge about the law" was based solely on the fact that he had "fil[ed] a lot of motions" before being transferred to the Rayville jail.
Apart from establishing that Drumgole is able to read and write and was advised of some of the dangers and disadvantages of self-representation, this record affirmatively shows only Drumgole's desire to represent himself and his subjective perception of his general competence to do so. While these matters arguably suggest that Drumgole's waiver of counsel was voluntary, they give no objective basis for assessing whether the waiver was knowing and intelligent, additional requirements for a valid waiver under Strain and other state and federal decisions.
Considering the totality of the circumstances presented in this record, we must conclude that Drumgole's waiver of counsel was invalid. See and compare Strain and Moore, cited supra, and State v. Mahogany, 96-1137 (La.App. 4th Cir.4/30/97), 694 So.2d 505, writ denied.
DECREE
We reverse the convictions and vacate the habitual offender adjudication and the sentences, remanding for a new trial.
GASKINS, J., concurs in the result.
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