Evans v. Raines

705 F.2d 1479, 1983 U.S. App. LEXIS 27975

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 1983
• Docket: No. 82-5373
• Status: Published

Opinions

RUSSELL E. SMITH, Senior District Judge:

Evans, the appellee here, was charged in two counts with rape and kidnapping for rape, was convicted on both counts, and was sentenced for a term of thirty years to life for rape and thirty years to fifty years for kidnapping for rape. Prior to the trial Evans was examined by psychiatrists, and on the basis of the evidence produced, the state trial judge found that Evans was competent to stand trial. The conviction was affirmed by the Supreme Court of Arizona.¹ A habeas corpus petition was filed in the United States District Court for the District of Arizona for the reason that the record did not disclose that Evans was competent to waive counsel and also did not disclose a knowing and intelligent waiver of counsel. The district court ordered that Evans be released from custody unless proceedings for a new trial be commenced.²

On the issue of intelligent waiver, this case is not significantly different from Hodge v. United States, 414 F.2d 1040 (9th Cir.1969), in which Judge Merrill, writing for the court en banc, said:

Here appellant clearly knew of his right. His “waiver” lay in his assertion of his right to represent himself — a right the court could not properly deny. 28 U.S.C. § 1654; Bayless v. United States, 381 F.2d 67, 71 (9th Cir.1967); Reynolds v. United States, 267 F.2d 235 (9th Cir.1959). The question, then, is whether his assertion of this right was “intelligent.” In this context we take this to mean whether he was sufficiently informed of the consequences of his choice. In our judgment he was.

The question before the judge was not whether the defendant was professionally capable of acting as his own lawyer. Few defendants are, and the right of self-representation is not so conditioned. The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experience and professional training are greatly to be desired.

Id. at 1042-43. (Footnotes omitted.)

The record does not show that Evans was advised of the penalties which could be imposed for kidnapping and rape. In the absence of some knowledge of Evans’ understanding of the seriousness of the charges, it cannot be said that he intelligently waived counsel.

We now examine the issue of competency to waive counsel. In Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), the Supreme Court held that a higher degree of competency was required to waive counsel than to stand trial. Here there was neither a hearing nor a finding on the issue of Evans’ competency to waive counsel. The district court in this case found that “there was before the trial judge substantial evidence of petitioner’s inability to make a reasoned choice in waiving counsel” and that, under the law of this circuit, a hearing on that issue was required. We agree.

We believe that the only substantial question presented here is whether the case should be remanded to the state court for a new trial on the merits or whether the case should be remanded to the state court for determinations of whether the defendant was competent to waive counsel and whether that waiver was intelligently made. We think a limited remand is sufficient.

Evans relies on Heiden v. United States, 353 F.2d 53 (9th Cir.1965), in which it was held that the state court erred in failing to make a record disclosing compliance with Fed.R.Crim.P. 11, which read in part: “The court .. . shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”³ Evans asserts that, under the rule in Heiden, the record could not be supplemented by evidence from other sources. Rule 11, however, applies only to the federal government, and only when a guilty plea is taken. In Heiden the court, which did not so much as mention the Constitution, was establishing guidelines for compliance with Rule 11. In Hodge, 414 F.2d at 1044, n. 4, this court said:

Here it is entirely proper to look beyond the judge’s remarks to ascertain intelligence. See United States v. Plattner, 330 F.2d 271, 276 (2d Cir.1965). While in Heiden v. United States, 353 F.2d 53 (9th Cir.1965), approved in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), this court held that such might not be done, we were there dealing with acceptance of a guilty plea under the express requirement of Rule 11, F.R.Cr.P.

In United States v. Kimmel, 672 F.2d 720, 722 (9th Cir.1982),⁴ this court held that a limited remand was proper to “supplement a record that does not show a knowing and intelligent waiver of counsel.” The remand itself, at 722-23, was in this language: “We remand this case for the limited purpose of affording the district court the opportunity to supplement the record, using whatever procedure it deems most efficient, on whether Kimmel made a knowing and intelligent waiver. This court retains jurisdiction of the appeal.”

As to the competency to waive counsel, the district court concluded that a retrospective competency hearing would be sufficient. See Chavez v. United States, 656 F.2d 512 (9th Cir.1981); Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973). These cases involve guilty pleas, but we see no reason why the rule should differ where competency to waive counsel is in issue.

This case is remanded to the district court with directions to send the case back to the state court for further hearing. The state court will then, by whatever means it finds most appropriate, determine whether Evans competently and intelligently asserted his right to represent himself. If the state court finds both questions in the affirmative, the writ will be denied; otherwise the writ shall issue unless a new trial is granted. The district court shall retain jurisdiction and shall determine the times within which any act required by this opinion shall be done.

Remanded in accordance with the directions stated above.

1 . State v. Evans, 125 Ariz. 401, 610 P.2d 35 (1980).

2 . Evans v. Raines, 534 F.Supp. 791 (D.Ariz.1982).

3 . The verbiage of the current Rule 11 has changed.

4 . The opinion in Kimmel was published after the decision of the district court in this case.