OPINION
BOOCHEVER, Justice.
In this case we consider whether a prisoner has a right to represent himself in post-conviction relief proceedings.
Petitioner Jack Jeffrey McCracken filed a petition for a writ of habeas corpus in the court below, and the judge below issued an order to show cause why a writ of habeas corpus should not issue. In connection with this petition, the superior court appointed the assistant public defender to represent the petitioner. Shortly afterward, and before the hearing, the petitioner informed the court that he wished to represent himself, and to that end he filed a motion for substitution of counsel. This motion was unopposed by respondent and endorsed by the Public Defender’s Office.
The superior court issued an order denying the motion on the grounds that “the petitioner’s interests can best be protected by having an attorney represent him.” Pursuant to Appellate Rules 23 and 24, McCracken then presented to this court a petition for review of the superior court’s order, alleging that in the absence of a showing that he would be likely to be disruptive, or was incompetent to serve as counsel in his own behalf, he had a right to represent himself.
On January 29, 1973 this court granted the petition for review, and on March 13, 1973, in light of the amendment of Criminal Rule 39 promulgated subsequent to the superior court order in this case with reference to the appointment of counsel,
this court remanded the matter to the superior court for reconsideration of petitioner’s request to represent himself. On May 29, 1973 the superior court again appointed the Alaska Public Defender Agency to represent McCracken.
On petitioner’s behalf, the public defender has filed a motion to reinstate the petition for review and to supplement arguments in its support.
We again grant review of the superior court’s order denying petitioner’s request to represent himself because, under Appellate Rules 23 and 24, the request “involves a controlling question of law as to which there is substantial ground for difference of opinion,” “immediate and present review of such order . . . may materially advance the ultimate termination of the litigation,” and the question sought to be reviewed “is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court.”
The superior court, in its order reaffirming its earlier denial of McCracken’s request to represent himself, based its decision upon Criminal Rule 39(b)(4).
The Court explained that:
The defendant is not a lawyer, the defendant is in prison, the defendant is incarcerated away from the location of the court, and the issues in this case are sufficiently complex to require briefing and argument in order to secure the defendant his full rights pursuant to law.
Before construing the applicable Criminal Rule, we find it necessary to examine the constitutional principles underlying petitioner’s asserted right to represent himself, for a court rule, like a statute, must be interpreted whenever possible so as to conform to the United States and Alaska constitutions.
If such a construction is not possible, it must be declared to be invalid or unconstitutional. Both the sixth amendment to the United States Constitution
and art. I, sec. 11 of the Alaska Constitution
guarantee a criminal defendant the right to counsel. Mc-Cracken argues that the right to counsel is not tantamount to an obligation to be represented by counsel, and that therefore the right not to have counsel is a right retained by the people under the ninth
amendment to the United States Constitution
and art. I, sec. 21 of the Alaska Constitution.
It is McCracken’s contention that this court should imply as a matter of constitutional right an entitlement to represent oneself similar to what is statutorily provided for in 28 U.S.C. § 1654,
the federal provision guaranteeing parties in federal courts the right personally to plead and conduct their own cases.
The United States Supreme Court has never held that there is a constitutional right to proceed
fro se,
but the Court has indicated in strong dicta that such a right exists, at least at the trial stage. In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the Court wrote:
The right to assistance of counsel
and the correlative right to dispense with a lawyer’s help
are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law. . . . [T]he Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open (emphasis added). 317 U.S. at 279, 63 S.Ct. at 241, 87 L.Ed. at 274-275.
The tenor of this language was reiterated in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 174 (1946):
[That, under certain circumstances, an accused may have a right to representation] does not, however, mean that the accused may not make his own defense; . Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.
329 U.S. at 174, 67 S.Ct. at 218, 91 L.Ed. at 174.
And in Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), the Court, in reaffirming its dictum in
Carter,
said “The constitutional right [to representation], of course, does not justify forcing counsel upon an accused who wants none.” 355 U.S. at 161, 78 S.Ct. at 195, 2 L.Ed.2d at 172. A number of circuit court decisions have gone further, and have stated explicitly that a defendant has a constitutional right to represent himself at his trial,
although other courts have been reluctant to find the right to self-representation to be of constitutional proportions.
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OPINION
BOOCHEVER, Justice.
In this case we consider whether a prisoner has a right to represent himself in post-conviction relief proceedings.
Petitioner Jack Jeffrey McCracken filed a petition for a writ of habeas corpus in the court below, and the judge below issued an order to show cause why a writ of habeas corpus should not issue. In connection with this petition, the superior court appointed the assistant public defender to represent the petitioner. Shortly afterward, and before the hearing, the petitioner informed the court that he wished to represent himself, and to that end he filed a motion for substitution of counsel. This motion was unopposed by respondent and endorsed by the Public Defender’s Office.
The superior court issued an order denying the motion on the grounds that “the petitioner’s interests can best be protected by having an attorney represent him.” Pursuant to Appellate Rules 23 and 24, McCracken then presented to this court a petition for review of the superior court’s order, alleging that in the absence of a showing that he would be likely to be disruptive, or was incompetent to serve as counsel in his own behalf, he had a right to represent himself.
On January 29, 1973 this court granted the petition for review, and on March 13, 1973, in light of the amendment of Criminal Rule 39 promulgated subsequent to the superior court order in this case with reference to the appointment of counsel,
this court remanded the matter to the superior court for reconsideration of petitioner’s request to represent himself. On May 29, 1973 the superior court again appointed the Alaska Public Defender Agency to represent McCracken.
On petitioner’s behalf, the public defender has filed a motion to reinstate the petition for review and to supplement arguments in its support.
We again grant review of the superior court’s order denying petitioner’s request to represent himself because, under Appellate Rules 23 and 24, the request “involves a controlling question of law as to which there is substantial ground for difference of opinion,” “immediate and present review of such order . . . may materially advance the ultimate termination of the litigation,” and the question sought to be reviewed “is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court.”
The superior court, in its order reaffirming its earlier denial of McCracken’s request to represent himself, based its decision upon Criminal Rule 39(b)(4).
The Court explained that:
The defendant is not a lawyer, the defendant is in prison, the defendant is incarcerated away from the location of the court, and the issues in this case are sufficiently complex to require briefing and argument in order to secure the defendant his full rights pursuant to law.
Before construing the applicable Criminal Rule, we find it necessary to examine the constitutional principles underlying petitioner’s asserted right to represent himself, for a court rule, like a statute, must be interpreted whenever possible so as to conform to the United States and Alaska constitutions.
If such a construction is not possible, it must be declared to be invalid or unconstitutional. Both the sixth amendment to the United States Constitution
and art. I, sec. 11 of the Alaska Constitution
guarantee a criminal defendant the right to counsel. Mc-Cracken argues that the right to counsel is not tantamount to an obligation to be represented by counsel, and that therefore the right not to have counsel is a right retained by the people under the ninth
amendment to the United States Constitution
and art. I, sec. 21 of the Alaska Constitution.
It is McCracken’s contention that this court should imply as a matter of constitutional right an entitlement to represent oneself similar to what is statutorily provided for in 28 U.S.C. § 1654,
the federal provision guaranteeing parties in federal courts the right personally to plead and conduct their own cases.
The United States Supreme Court has never held that there is a constitutional right to proceed
fro se,
but the Court has indicated in strong dicta that such a right exists, at least at the trial stage. In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the Court wrote:
The right to assistance of counsel
and the correlative right to dispense with a lawyer’s help
are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law. . . . [T]he Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open (emphasis added). 317 U.S. at 279, 63 S.Ct. at 241, 87 L.Ed. at 274-275.
The tenor of this language was reiterated in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 174 (1946):
[That, under certain circumstances, an accused may have a right to representation] does not, however, mean that the accused may not make his own defense; . Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.
329 U.S. at 174, 67 S.Ct. at 218, 91 L.Ed. at 174.
And in Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), the Court, in reaffirming its dictum in
Carter,
said “The constitutional right [to representation], of course, does not justify forcing counsel upon an accused who wants none.” 355 U.S. at 161, 78 S.Ct. at 195, 2 L.Ed.2d at 172. A number of circuit court decisions have gone further, and have stated explicitly that a defendant has a constitutional right to represent himself at his trial,
although other courts have been reluctant to find the right to self-representation to be of constitutional proportions.
However, the aforementioned Supreme Court dicta and the circuit court decisions cited above either construed the sixth amendment’s guarantee of the assistance of counsel to incorporate a corollary constitutional right to proceed
in propria persona,
tended to embrace such a construction,
or relied for authority upon cases which did one or the other.
Consequently, these cases are of questionable relevance to the case at hand, for the sixth amendment to the United States Constitution and art. I, sec. 11 of the Alaska Constitution by their terms apply only to
criminal prosecutions,
and protect only those
accused
of crime with respect to the prepartion of a
defense.
An evidentiary hearing on an application for post-conviction relief is not a criminal prosecution, petitioner will not be presenting a defense to a criminal prosecution, and McCracken is not an accused, having already been convicted.
Therefore, if we are to derive a right to represent oneself from either the Federal or the Alaska constitutions, we must look elsewhere. We are persuaded that there is such a right under art. I, sec. 21 of the Alaska Constitution, which specifies that “[t]he enumeration of rights in this constitution shall not impair or deny others retained by the people.” At the time that the Alaska Constitution was enacted
and became effective,
the right of self-representation was so well established that it must be regarded as a right “retained by the people.” The Treaty of Cession,
under which Russia ceded its possessions in North America to the United States, provided that the inhabitants “shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” By virtue of section 35 of the Judiciary Act of 1789,
parties then possessed the right in all the courts of the United States to “plead and conduct their own cases personally.” Thus, throughout Alaska’s history prior to statehood parties were without exception entitled to exercise the right of self-representation. Although we do not imply that all statutory rights in existence at the time that Alaska was admitted to the Union constitute rights “retained by the people” under art. I, sec. 21 of the Alaska Constitution, we are of the opinion that a right so long established and of such fundamental importance must be held to have been so retained.
In considering the fundamental importance of self-representation, we are mindful that ours is a society valuing the autonomy of the individual and his freedom of choice. When accused of a crime, or, as
here, when seeking relief from a conviction resulting in imprisonment, the opportunity to determine whether to present one’s own case or to be represented by appointed counsel is of paramount importance to the individual. Under some circumstances, he may indeed be the only person who will forcefully advance arguments in an unpopular cause. Alaska has been and is endowed with courageous attorneys who have zealously represented those accused of crime, but such dauntless representation may not always be available to one who is the object of opprobrium. The opportunity to present one’s own position where liberty itself is at stake should not lightly be disregarded, and the right to counsel should not be used to bar self-representation. “[T]he procedural safeguards of the Bill of Rights are not to be treated as mechanical rigidities. What were contrived as protections for the accused should not be turned into fetters.”
Having concluded then that there is a right to self-representation under our own constitution, we must illuminate the contours of that right. The right is not absolute. In order to prevent a perversion of the judicial process, the trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed
pro se.
Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Rule 39(b)(3) provides that, at the trial stage, counsel should be appointed unless the defendant “demonstrates that he understands the benefits of counsel and
knowingly waives the same.”
A comparable procedure should be followed in post-conviction proceedings. The advantages of legal representation should be explained to the prisoner in some detail, and in the event of an evidentiary hearing at which the prisoner is present he should be given the option of having legal counsel available for consultation. Indeed, where the court is not completely satisfied that the prisoner is capable of
pro se
representation, it is within its sound discretion to insist that the prisoner accept consultative assistance by appointed counsel. Finally, the trial judge should determine that the prisoner is willing to conduct himself with at least a modicum of courtroom decorum.
In addition, as a precondition to self-representation at an evidentiary hearing, the hearing judge must already have determined that the prisoner’s personal presence at the evidentiary hearing is necessary pursuant to the discretionary authority vested in him under Criminal Rule 35(h). Were we not to impose this qualification upon the right of self-representation, this decision could well afford the means by which the hearing judge’s discretionary power to refuse to order the production of the prisoner at a post-conviction evidentiary hearing could be circumvented. Such a limitation is implicit in the right “retained by the people” to appear at a post-conviction hearing
in propria persona,
for the federal courts have always possessed the power to refuse to compel the production of a prisoner at an evidentiary hearing on the prisoner’s petition for post-conviction relief when his physical presence was not necessary.
Consequently, a comparable restriction must be presumed to inhere in the retained right of
pro se
representation.
In the case at bar, we note that the pleadings filed by McCracken demonstrate a certain knowledge of the merits of his allegations, and indicate at least to some extent that he may have the ability to represent himself. In the absence of an opportunity on our part to more fully question McCracken, his rights may best be vindicated by an order permitting him to represent himself with the assistance of counsel from the Public Defender’s Office appointed by the court. If it is determined that McCracken’s presence will be necessary at a hearing, a more thorough inquiry into the propriety of permitting him to represent himself can be undertaken at that time.
The order denying McCracken’s motion for substitution of counsel is reversed in part, and the case is remanded to the trial court for further proceedings in accordance with this opinion.
Reversed in part and remanded.
