CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30559; CR. NO. 09-1-0097)
Kevin O’Grady for petitioner
Sonja P. McCullen for respondent
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
This court accepted Petitioner/Defendant-Appellant Joseph Pitts' Application for Writ of Certiorari and ordered supplemental briefing addressing whether the circuit court erred in not appointing substitute counsel for Pitts for post-verdict motions and sentencing. We hold that the circuit court erred by not appointing substitute counsel for Pitts' post-verdict motions because post-verdict proceedings are critical stages in the prosecution. We also hold that the circuit court erred by not appointing Pitts substitute counsel for sentencing.
Pitts was tried for attempted murder in the second degree. Pitts was alleged to have stabbed his close friend.
After opening statements, Pitts expressed a desire to represent himself. John Schum ("Schum"), Pitts' fourth court-appointed attorney (appointed after Pitts had developed personal conflicts with his three preceding court-appointed attorneys), who represented Pitts at that point, stated the problem was Pitts believed "he knows the case better than [Schum] do[es] and that the truth will set him free." The circuit court asked Pitts to think about his decision over the weekend. The following Monday, before trial resumed, Pitts informed the circuit court that he would "push [his] stubbornness aside" and have Schum continue representing him.
Later, during a break in the State's case, Pitts again announced his intention to fire Schum. After giving Pitts a day to think about his decision, the circuit court colloquied Pitts regarding his right to counsel, Pitts waived his right to counsel, and Schum was assigned as standby counsel. There were no express limits on the time frame for which Schum would act as standby counsel (i.e., through trial, through post-trial motions, through sentencing, through appeal, etc.).
As the State's case progressed, Pitts expressed to the court (outside the presence of the jury) that he wanted Schum to resume representing him because he (Pitts) was overwhelmed. Schum stated that he was not sure he could resume representation because of the ethical problem caused by Pitts' accusation that Schum and the prosecutor "shar[ed] privileged information and attempt[ed] to sell [Pitts out]." The circuit court denied Pitts' request to have Schum resume representation for two reasons: first, because of Schum's perceived ethical problem, and second, because "the bottom line is . . . that [Pitts] waived [his] right to counsel." For the rest of the trial, Pitts was pro se.
On March 10, 2010, the jury returned a guilty verdict.
On March 17, 2010, Schum filed a timely Motion to Withdraw as Stand-by Counsel, Appoint Substitute Counsel and Declare Mistrial. In his declaration attached to the motion, Schum explained that Pitts had asked for Schum's help in requesting a new trial, preparing for the sentencing hearing, and starting work on an appeal. According to Schum, he told Pitts resuming representation was not possible because Pitts had waived his right to counsel and accused Schum of ethical violations. Schum contacted the Office of Disciplinary Counsel, who advised him that it would be possible for Schum to file the instant motion so long as Pitts concurred so that Pitts' "full rights both post-trial and on appeal would be preserved. ..." Pitts concurred. Thus, the motion requested that Schum be allowed to withdraw as standby counsel, that substitute counsel be appointed to assist Pitts post-trial and on appeal, and that a mistrial be declared because Pitts' waiver of the right to counsel was involuntary. The State filed its Opposition on April 5, 2010, arguing that Pitts made a knowing and voluntary waiver of his right to counsel.
On April 7, 2010, the circuit court heard the motion. Addressing Schum, the circuit court stated that Schum's services as standby counsel ended when the jury rendered its verdict:
First of all, I don't think it was required of you to file a motion to withdraw as standby counsel. You no longer represent Mr. Pitts. The very fact that I asked you to be standby counsel at trial tells us that. Mr. Pitts waived his right to counsel very clearly, as [the State] said. To this day, he's still representing himself. The trial is over. I think we'd all agree on that. So you're no longer standby counsel. I don't think you need to file a motion to withdraw as standby counsel.
The circuit court also opined that Schum might not have standing to file a motion to appoint substitute counsel. In any event, the circuit court denied the motion for a mistrial (construed as a motion for a new trial), both on the merits, stating, "Mr. Pitts waived his right to counsel very clearly, " and because ...