IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) Respondent, ) ) v. ) WD83914 ) MATTHEW JAY SCHURLE, ) FILED: September 7, 2021 Appellant. ) Appeal from the Circuit Court of Nodaway County The Honorable Corey K. Herron, Judge Before Division One: Lisa White Hardwick, P.J., and Alok Ahuja, and Anthony Rex Gabbert, JJ. Following a jury trial in the Circuit Court of Nodaway County, Matthew
Schurle was convicted of delivery of methamphetamine, in violation of § 579.020,1
possession of marijuana, in violation of § 579.015, and unlawful possession of drug
paraphernalia, in violation of § 579.074. Schurle appeals. He contends that there
was insufficient evidence to support his conviction for delivery of a controlled
substance. Schurle also argues that the circuit court plainly erred in finding that
he waived his right to counsel, without conducting a hearing to determine that
Schurle knowingly and voluntarily chose to represent himself, and without securing
his written waiver. Finally, Schurle argues that the circuit court plainly erred in
finding that he was not indigent, and therefore that he was not eligible for
appointed counsel.
1 Unless otherwise indicated, statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2017 Supplement. We conclude that the evidence was sufficient to support Schurle’s conviction
for delivery of a controlled substance. As the State concedes, however, the circuit
court plainly erred by proceeding to trial without determining after a hearing that
Schurle was knowingly and intelligently waiving his right to representation.
Consistent with the State’s concession of error, Schurle’s convictions are reversed,
and the case is remanded for further proceedings consistent with this opinion.
Factual Background At approximately 3:00 a.m. on March 29, 2018, Sergeant Austin Hann of the
Nodaway County Sheriff’s Department witnessed Schurle make a left turn without
signaling at an intersection east of Ravenwood. Sergeant Hann followed Schurle’s
vehicle, and observed it drift toward the soft shoulder of the roadway. Sergeant
Hann initiated a traffic stop.
When Sergeant Hann approached the vehicle, he observed that Schurle was
on his phone and appeared to be leaving a voicemail for someone, indicating that he
had been pulled over, and giving his location. Schurle’s hands were visibly shaking,
and he avoided eye contact with Sergeant Hann. This led Sergeant Hann to suspect
that some criminal activity was underway. Throughout their conversation,
Sergeant Hann noted that Schurle repeatedly said “uh” and “um”, and would trail
off without completing his sentences, suggesting that Schurle was delaying as he
attempted to think of things to say.
Schurle stated that he was coming from his storage unit, but based on the
direction Schurle had been driving, Sergeant Hann concluded that he was headed
toward the only storage units in the area, not away from them. Sergeant Hann
asked Schurle if anything was going to “come up” when Sergeant Hann checked
Schurle’s identification, and Schurle informed him that there was an active warrant
for his arrest. Sergeant Hann then requested that Schurle step out of the vehicle,
2 handcuffed him, and had him sit in Sergeant Hann’s patrol car. Sergeant Hann
confirmed that there was an active warrant for Schurle’s arrest.
Sergeant Hann arranged for Schurle’s vehicle to be towed, since Schurle was
being arrested. As a part of standard protocol, Sergeant Hann attempted to conduct
an inventory search of Schurle’s vehicle, but found that the car was locked with the
keys in the ignition. Sergeant Hann felt that Schurle was “making a great effort to
prevent anyone from gaining access [to his] vehicle.”
Through the windows of Schurle’s vehicle, Sergeant Hann was able to see
what appeared to be a marijuana cigarette sitting in plain view in the center
console. Sergeant Hann then had his dog sniff around the outside of Schurle’s car,
and the dog indicated that it had detected narcotics in the trunk area.
Sergeant Hann searched Schurle and found $480 in cash, all in $20 bills, in
Schurle’s pocket. Schurle claimed that he had just gotten paid, but then
“immediately stated that he did not have a job.” At trial, Schurle admitted that the
explanation for the money which he gave to Sergeant Hann was a lie. Schurle
offered another explanation for the money at trial, testifying that it was gas money
to enable him to drive to California. He testified that his sister had wired $300 of
the money to him, and that he had earned the remainder. Sergeant Hann also found a digital scale in the front pocket of Schurle’s
hooded sweatshirt. The scale was covered in a crystal residue, which was later
determined to be methamphetamine. The scale was packaged to look like a bar of
soap from a hotel. Sergeant Hann testified without objection that the digital scale
he found in Schurle’s pocket was consistent with “[t]he weighing and measuring of
narcotics for distribution,” and that such digital scales were commonly used in drug
transactions.
3 Schurle was transported to the jail and was searched again by Sergeant
Hann. Sergeant Hann found a spare key for Schurle’s vehicle hidden in the lining
of his vest.
A search of Schurle’s vehicle was conducted once it arrived at the jail.
Officers found a marijuana cigarette and a lock pick set in the center console, as
well as a portion of a glass pipe with residue on it in the back seat. In the trunk,
officers found rubber tubing containing a methamphetamine residue, and a
marijuana test kit.
Schurle was charged with delivery of a controlled substance, for his
possession of methamphetamine with the intent to distribute; possession of a
controlled substance, for his possession of marijuana; and possession of drug
paraphernalia, for his possession of “rolling papers formed as a join[t].”
Schurle posted a $10,000 bond and hired two private attorneys to represent
him. A year after private counsel entered their appearances, they filed motions to
withdraw. As justification for their withdrawal, the attorneys cited an inability to
agree with Schurle on litigation strategy, and his non-responsiveness concerning
payment of their past-due fees. Schurle consented to his attorneys’ withdrawal. He
asked the court how he could receive the assistance of the Public Defender, because “[t]he limiting factor [on obtaining new counsel] is finances.” The court granted the
motions to withdraw on April 22, 2019, and continued Schurle’s trial to allow him
time to obtain new counsel.
Schurle applied to the Public Defender for representation. On May 6, 2019,
the Public Defender filed a Determination of Non-Indigency with the circuit court,
which concluded that Schurle was not indigent because he had previously retained
private counsel, and had also posted a $10,000 bond. Even though private counsel
had withdrawn due in part to Schurle’s inability to pay their fees, the Public Defender asserted that “[i]t is not presumed that when private counsel requires
4 further compensation to take a case to trial, that a Public Defender Attorney can be
utilized by default when private counsel chooses to discontinue their relationship
with the defendant.”
Schurle appealed to the circuit court, which held a hearing on May 16, 2019.
Schurle informed the court that he had posted bond and retained private counsel
with money he had received from his father. Schurle stated that his father had
stopped paying for the costs of his defense, and that further financial resources from
his father “[we]re no longer available.” Schurle informed the court that he was
presently unemployed and homeless, living on a friend’s couch. Although Schurle
stated that it was his intent to move to California, the court noted that Schurle was
able-bodied, and that there was nothing preventing him from obtaining a temporary
job in Missouri. Ultimately, the court determined it could not “find any grounds to
overturn the public defender’s decision.” “You have the ability . . . to earn income,
you just choose . . . not to, so I'm [not] going to overrule their finding.” The court
then set the case for trial on September 30, 2019, stating that this should give
Schurle enough time to retain counsel.
The trial began as scheduled, with Schurle representing himself. The jury
convicted Schurle as charged and recommended a term of imprisonment and fines on each offense. The court accepted the jury’s recommendation, sentencing Schurle
to ten years’ imprisonment on Count I, to run consecutively to sentences of one year
in the county jail on Counts II and III (which were to run concurrently with each
other). The court also assessed a $1,000 fine on Count I, and $500 fines on both
Count II and Count III.
Schurle appeals. He has been represented by the Public Defender in
connection with this appeal.
5 Discussion Schurle raises three Points on appeal. First, he argues that there was
insufficient evidence to support his conviction for delivery of a controlled substance,
as there was no evidence presented at trial that Schurle intended to distribute the
methamphetamine residue found in his possession. Second, Schurle argues that he
did not effectively waive his right to the assistance of counsel, since the circuit court
failed to secure Schurle’s written waiver of counsel, and failed to hold a hearing to
ensure that he understood his rights and the perils of self-representation. In his
final Point, Schurle argues that it was plain error for the circuit court to find him
ineligible for Public Defender services based on his future earning capacity.
I. In his first Point, Schurle argues that the evidence was insufficient to
support his conviction for delivery of methamphetamine, because the evidence fails
to prove that he had an intent to distribute the methamphetamine residue found on
the digital scale in his possession at the time of his arrest.
We conclude in § II, below, that Schurle is entitled to a new trial because the
circuit court failed to obtain a valid waiver from Schurle of his right to counsel.
Despite that conclusion, we must separately address Schurle’s first Point, which
makes a sufficiency-of-the-evidence argument. “The double jeopardy clause of the United States constitution precludes a second trial after a reversal based solely on
the insufficiency of evidence.” State v. Barber, 635 S.W.2d 342, 345 (Mo. 1982);
accord State v. Lehman, 617 S.W.3d 843, 844 n.2 (Mo. 2021) (“‘[I]f a conviction is
reversed solely due to evidentiary insufficiency the double jeopardy clause requires
judgment of acquittal.’” (quoting State v. Liberty, 370 S.W.3d 537, 553 (Mo. 2012)).
Therefore, if we determined that the evidence was insufficient to support Schurle’s
conviction for delivery of methamphetamine, the double jeopardy clause would bar a retrial for that offense. Because Schurle’s sufficiency-of-the-evidence argument
6 would entitle him to broader relief than his right-to-counsel arguments, we consider
Point I despite our disposition of his remaining claims. See, e.g., State v. Matthews,
552 S.W.3d 674, 681 n.6 (Mo. App. W.D. 2018); State v. Feldt, 512 S.W.3d 135, 154–
55 (Mo. App. E.D. 2017).
When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt. The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict. This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Stewart, 560 S.W.3d 531, 533 (Mo. 2018); State v. Naylor, 510 S.W.3d 855,
859 (Mo. 2017). “In reviewing the sufficiency of the evidence supporting a criminal
conviction, an appellate court does not act as a super juror with veto powers but
gives great deference to the trier of fact.” State v. Wright, 382 S.W.3d 902, 903 (Mo.
2012 (cleaned up). We “may not supply missing evidence, or give the State the
benefit of unreasonable, speculative, or forced inferences.” State v. Whalen, 49
S.W.3d 181, 184 (Mo. 2001) (cleaned up). “A person commits the offense of delivery of a controlled substance if . . . he
. . . [k]nowingly possesses a controlled substance with the intent to distribute or
deliver any amount of a controlled substance . . . .” § 579.020.1(3). Accordingly, to
sustain a conviction for delivery of a controlled substance, the State must prove,
beyond a reasonable doubt, that the defendant had (1) conscious and intentional
possession of a controlled substance, either actually or constructively; (2) awareness
of the presence and illegal nature of the substance; and (3) the intent to deliver the
substance. State v. McCleod, 186 S.W.3d 439, 443-44 (Mo. App. W.D. 2006) (quoting State v. Sutherland, 11 S.W.3d 628, 631 (Mo. App. E.D. 1999)).
7 “In determining whether there is sufficient evidence supporting a conviction
for possession of a controlled substance with intent to distribute, it is the reviewing
court's role to determine whether the quantity possessed, along with all other
circumstances and evidence, supports a reasonable inference from which a jury
could find that the defendant had the intent to distribute the substance.” State v.
Lawson, 232 S.W.3d 702, 706 (Mo. App. W.D. 2007). Although the quantity of
methamphetamine that was in Schurle’s possession is too small, on its own, to
support an inference of his intent to distribute methamphetamine, other
circumstances may support the inference of an intent to distribute, including
possession of unusual amounts of money,2 and possession of paraphernalia
associated with drug dealing, such as a scale.3
In this case, the evidence was sufficient to support an inference that Schurle
had an intent to distribute methamphetamine. When his vehicle was stopped,
Schurle was visibly nervous, and gave Sergeant Hann a deceptive explanation as to
the nature of his travel. Schurle was in possession of an unusual amount of cash,
and admitted at trial that he lied to Sergeant Hann as to the source of the money.
“‘[G]uilt may be inferred when an accused attempts to deceive the police, as in
making a false exculpatory statement.’” State v. Mueller, 568 S.W.3d 62, 72-73 (Mo. App. S.D. 2019) (citation omitted). The fact that Schurle lied about the source of the
money – whose possession was not in itself illegal – supported the inference that the
money was derived from illegal activity. Schurle was also in possession of a digital
scale, which Sergeant Hann testified was consistent with drug distribution.
2 See, e.g., State v. Gonzalez, 108 S.W.3d 209, 210 (Mo. App. S.D. 2003); State v. Fairow, 991 S.W.2d 712, 714 (Mo. App. E.D. 1999) 3 State v. Taylor, 373 S.W.3d 513, 525 (Mo. App. E.D. 2012); State v. Lloyd, 205 S.W.3d 893, 909 (Mo. App. S.D. 2006) (inference of intent to distribute marijuana supported by “the discovery of a scale in Defendant’s residence”); State v. Cortez-Figueroa, 855 S.W.2d 431, 434 (Mo. App. W.D. 1993) (inference that defendant had intent to distribute supported by possession of large number of baggies, and a scale with residue on it).
8 Further, a methamphetamine residue was present on the scale, indicating that it
had recently been used to weigh methamphetamine. The scale was deceptively
packaged, to conceal what the object actually was. The jury could also find that
Schurle intentionally locked his keys in his vehicle, and failed to disclose that he
had another key concealed in his clothing, to prevent Sergeant Hann from searching
the vehicle and finding additional evidence of Schurle’s illegal activity.
Schurle’s real complaint is not that the evidence was insufficient to support
an inference that he had the intent to distribute drugs, but that he was not arrested
while in actual possession of a distributable quantity of methamphetamine. Thus,
Schurle argues that “the question is not whether Mr. Schurle . . . sold
[methamphetamine] in the past. Instead, under Section 579.020(4), the State was
required to prove that Mr. Schurle intended to sell the methamphetamine residue
that he possessed.”
We recognize that, to support a defendant’s conviction of delivery of a
controlled substance, the State must prove that the defendant possessed a quantity
of a controlled substance with the intent to distribute that quantity. See MAI-
CR4th 425.04.3 (2020) (requiring jury to find that “the defendant knowingly
possessed ([name of controlled substance])” and that the defendant “intended to (distribute) (deliver) (sell) the ([name of controlled substance])”). It was not
necessary, however, that Schurle actually be “caught in the act” of possessing a
distributable quantity of methamphetamine at the moment of his arrest, or that he
actually be observed in possession of such a quantity. Even if there was no direct
evidence of Schurle’s possession of a distributable quantity of methamphetamine,
the jury could still draw an inference of such possession from the circumstantial
evidence. “‘An “inference” is a conclusion drawn by reason from facts established by
proof; a deduction or conclusion from facts or propositions known to be true.’” State v. Kinsella, 578 S.W.3d 802, 815 (Mo. App. E.D. 2019) (quoting State v. Waller, 163
9 S.W.3d 593, 595 (Mo. App. W.D. 2005)). It is well established that “‘[r]easonable
inferences’” supporting a criminal conviction “‘can be drawn from both direct and
circumstantial evidence, and circumstantial evidence alone can be sufficient to
support a conviction.’” State v. Peeler, 603 S.W.3d 917, 920 (Mo. App. E.D. 2020)
(quoting State v. Brown, 360 S.W.3d 919, 922 (Mo. App. W.D. 2012)). “Furthermore,
circumstantial evidence is given the same weight as direct evidence in considering
whether there was sufficient evidence to support a conviction.” State v. Mills, 623
S.W.3d 717, 724 (Mo. App. E.D. 2021) (citing State v. McBenge, 507 S.W.3d 94, 104
(Mo. App. E.D. 2016)).
In this case, the evidence described above was sufficient for a reasonable
juror to conclude that Schurle had recently been in possession of a quantity of
methamphetamine which he had actually distributed to others. Schurle possessed
an instrumentality of drug distribution (the digital scale), which had a
methamphetamine residue on it. Schurle was also in possession of what the jury
could find were the fruits of drug distribution ($480 in cash, in $20 bills), for which
he offered a false explanation. Schurle was nervous, lied about the reason for his
travel, and attempted to prevent Sergeant Hann from searching his vehicle. All of
this supports the common-sense conclusion that Schurle had recently been selling methamphetamine. While the quantity of methamphetamine which Schurle
possessed for distribution may be unknowable, the statute specifies that an
individual commits the offense of delivery of a controlled substance if he or she
“[k]nowingly possesses a controlled substance with the intent to distribute or
deliver any amount of a controlled substance.” § 579.020.1(3) (emphasis added).
To our knowledge, no Missouri appellate court has previously considered
whether a defendant may be convicted of delivery of a controlled substance when
the defendant is not arrested while in actual possession of a distributable quantity (or is not actually observed delivering the controlled substance to another person).
10 Courts in other jurisdictions have addressed this question, however, and a majority
of those courts have held that a defendant may be convicted if the evidence supports
the inference that the defendant was recently in possession of a distributable
quantity of a controlled substance, even if the defendant is not caught, or observed,
in actual possession of a distributable quantity. For example, in United States v.
Campbell, 732 F.2d 1017 (1st Cir. 1984), a search of a defendant’s apartment
“discovered various cocaine paraphernalia, including scales, cutting and other
equipment, and approximately 1,000 glassine envelopes, but no cocaine except
measurable residue attached to the equipment.” Id. at 1019. The Court rejected
the defendant’s argument that the evidence was insufficient to support his
conviction of possession of cocaine with intent to distribute. The Court concluded
that the jury could reasonably infer, from the equipment and cocaine residue
discovered in the defendant’s apartment, that he had recently possessed a
distributable quantity of the drug.
During its deliberation the jury requested instructions, and was told that it could convict defendant of intent to sell cocaine other than the found residue if it concluded that he had had further cocaine for sale within a reasonable time of the date stated in the indictment. As to this we find no error. . . . In view of the amount of equipment discovered, still with residue present, it would be reasonable for the jury to conclude that defendant was conducting an ongoing business, and that more substantial amounts of cocaine had been present within a reasonable time of the discovery. Id. at 1020.
The Court reached the same conclusion in Commonwealth v. LaPerle, 475
N.E.2d 81 (Mass. App. 1985). In LaPerle, like in Campbell, a search of the
defendant’s apartment discovered various paraphernalia associated with cocaine
distribution, but only a residue of cocaine itself. Id. at 82-83. “According to a State
chemist, the amount [of cocaine residue] was visible to the naked eye but probably was not susceptible to measurement on an instrument less sensitive than an
11 analytical balance.” Id. at 83. Despite the fact that the defendant was not arrested
in possession of a distributable quantity of cocaine, the Court held that a jury could
reasonably infer that the defendant had been in possession of such a quantity close
to the time of the search:
In this case we have the existence of a residue of cocaine on several items associated with cocaine use or distribution. We have the pan of the scale, containing residue, a quantity of cutting powder far in excess of the amount, if any, needed to “cut” the residue, as well as two packages of wrapping papers. This evidence, taken as a whole, permits inferences that a merchantable amount of cocaine had previously been present, and that LaPerle had intended to distribute it. Id. at 85; accord State v. Gibson, 52 P.3d 339, 352 (Kan. App. 2002) (although
acknowledging that “the amount of marijuana found at [the defendant’s] apartment
was small,” affirming conviction of possession with intent to distribute where “[t]he
paraphernalia [associated with drug distribution found in the defendant’s
apartment] . . . provided strong circumstantial evidence in support of the State’s
case”); State v. Simpson, 272 S.E.2d 431, 431 & n.2 (S.C. 1980) (affirming conviction
of possession with intent to distribute marijuana, although police recovered only
“3.47 grams of marijuana leaf and seeds” by vacuuming the interior of the
defendant’s airplane, based on the “circumstantial evidence that the plane had been used in a drug-smuggling operation”).
The Court of Appeals of Virginia reached a contrary conclusion in Stanley v.
Commonwealth, 407 S.E.2d 13 (Va. App. 1991). In Stanley, officers searched the
defendant’s vehicle when they arrested him. They found “a triple beam balance
scale and a plastic straw, both of which contained cocaine residue,” as well as a
powder used to “cut” or dilute cocaine, “glassine type bags and cut twist ties, caps
from hypodermic needles, an envelope labelled ‘Cocaine Importing Company of
Miami, Florida,’ and account papers and ledgers.” Id. at 14. Despite the presence of cocaine residue, and a large quantity of drug-distribution paraphernalia, in the
12 defendant’s vehicle, the Court held that the evidence was insufficient to support the
defendant’s conviction of possession with intent to distribute cocaine:
Possession with intent to distribute is a crime which requires “an act coupled with a specific intent.” We hold that for a defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his intention to distribute that substance. In the case before us, no evidence was presented to support an inference that Stanley intended to distribute the residue found in his possession. To the contrary, the quantity of residue found in [Stanley's] possession was too small to be distributed. Assuming that the trier of fact could infer from the evidence introduced at trial that Stanley had in the past distributed cocaine, there was no basis on which the trier of fact could infer that the residue introduced at trial was part of that larger supply. Moreover, no evidence was presented as to when or where the supply had been either possessed or distributed. Because we find that the Commonwealth failed to prove contemporaneous possession and intent to distribute, Stanley's conviction must be reversed. Id. at 15.
We find Stanley to be unpersuasive. We agree with the Stanley court that, to
sustain a conviction, the State must prove that the defendant possessed a quantity
of a controlled substance with the intent to distribute that quantity. We also agree
that the drug residue found on the paraphernalia in Schurle’s possession could not
itself support his conviction, since that residue was not itself distributable.
Nevertheless, we believe Stanley erroneously discounts the inferences which may
reasonably be drawn from the evidence found in a defendant’s possession at the
time of his arrest. In this case, the evidence discovered at the time of Schurle’s
arrest supported an inference that he had engaged in drug distribution, and that he
had done so recently (given his possession of cash which the jury could infer was
derived from drug dealing, his deceit concerning his travels at 3:00 a.m. on a
13 Thursday morning, and the presence of a methamphetamine residue on the scale,
suggesting its recent use).
Schurle cites to United States v. Latham, 874 F.2d 852 (1st Cir. 1989), to
support his argument that the evidence was insufficient to sustain his conviction.
But Latham addressed a different issue. In Latham, the trial court instructed a
jury “that it could find [the defendant] guilty of possession with intent to distribute
cocaine even if the defendant did not intend to distribute the cocaine he in fact
possessed, but if he had the intent to distribute some unspecified amount of cocaine,
that he did not currently possess, at some unspecified time in the future.” Id. at
861. The First Circuit held that this instruction was erroneous. Id. The Court
emphasized that “[t]he statute requires that the government prove that [the
defendant] possessed, actually or constructively, cocaine that he intended to
distribute.” Id. at 862.
We do not disagree with Latham’s holding. As we have explained above, to
convict Schurle of delivery of methamphetamine the State was required to prove
that Schurle had actually possessed a quantity of methamphetamine with the
intent to distribute those drugs. We reject Schurle’s sufficiency argument because
we are persuaded by the rationale of Campbell and LaPerle: the jury could reasonably find, based on the circumstantial evidence, that Schurle had previously,
and recently, possessed a distributable quantity of methamphetamine with the
intent to distribute it – even though that quantity was not still in his possession at
the time of his arrest.
Point I is denied.
II.
In Point II, Schurle argues that the circuit court plainly erred by allowing
him to proceed to trial without counsel, where the court failed to comply with § 600.051’s requirement of a signed written waiver, and where the court failed to
14 hold an evidentiary hearing to ensure that Schurle understood the consequences
and perils of self-representation, as required by Faretta v. California, 422 U.S. 806
(1975).
In its Brief, the State contends that Schurle’s conduct impliedly waived his
right to counsel, and that it was therefore unnecessary for the court to obtain the
written waiver required by § 600.051. See State v. Kunongo, 490 S.W.3d 746, 765-
66 (Mo. App. W.D. 2016) (discussing the exceptions to § 600.051’s written-waiver
requirement); State v. Rawlins, 248 S.W.3d 680, 684 (Mo. App. W.D. 2008) (same).
The State nevertheless concedes that the circuit court plainly erred by permitting
Schurle to proceed pro se without conducting a Faretta hearing. Based on its
confession of error, the State concedes that Schurle’s convictions must be reversed,
and that the case must be remanded to the circuit court for further proceedings.
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the right to counsel in all felony prosecutions.
Gideon v. Wainwright, 372 U.S. 335, 339-42 (1963). This right also “implicitly
embodies a correlative right to dispense with a lawyer’s help” and proceed to trial
pro se. Faretta, 422 U.S. 806, 815 (1975); State v. Ndon, 583 S.W.3d 145, 154 (Mo.
App. W.D. 2019). The Sixth Amendment, however, withholds from courts “the power and authority to deprive an accused of his life or liberty unless . . . [he
effectively] waives the assistance of counsel.” Johnson v. Zerbst, 304 U.S. 458, 463
(1938) (footnote omitted). “For a waiver of counsel to be effective, due process
requires that the waiver be made knowingly and intelligently.” State v. Hunter, 840
S.W.2d 850, 857 (Mo. 1992); see also Rawlins, 248 S.W.3d at 683 (“[A]bsent a
knowing and intelligent waiver of counsel, no defendant may be imprisoned unless
represented by counsel at trial.” (citation omitted)).
“There is a strong presumption against the waiver of counsel.” Kunongo, 490 S.W.3d at 762 (citations omitted). Under Faretta, before a circuit court can conclude
15 that a defendant has effectively waived the right to counsel, the court must conduct
“‘a thorough evidentiary hearing’” which establishes “that ‘the defendant
understands exactly what rights and privileges he is waiving, as well as the dangers
associated with waiving constitutional rights.’” Id. at 763 (quoting State v. Black,
223 S.W.3d 149, 155, 156 (Mo. 2007)).
Here, the State concedes that Schurle was not given the on-the-record
admonitions required by Faretta. We agree, and conclude that Schurle did not
effectively waive his right to counsel. Although the circuit court conducted two
hearings at which the status of Schurle’s legal representation was explored, and
gave Schurle opportunities to attempt to obtain counsel, the court never expressly
advised Schurle of the risks and responsibilities of proceeding pro se. It was error
for the circuit court to proceed to trial, with Schurle acting pro se, without having
made the inquiries necessary to ensure that Schurle had knowingly and voluntarily
waived his right to counsel. In these circumstances, reversal is required. See, e.g.,
State v. Campanella, 609 S.W.3d 526, 526-27 (Mo. App. S.D. 2020); State v. Grant,
537 S.W.3d 426, 429-30 (Mo. App. S.D. 2018); Rawlins, 248 S.W.3d at 685; State v.
Johnson, 172 S.W.3d 900, 902 (Mo. App. S.D. 2005); State v. Wilkerson, 948 S.W.2d
440, 445-46 (Mo. App. W.D. 1997).4
4 Because we are reversing for a new trial based on Schurle’s second Point, it is unnecessary to address his third Point, which challenges the circuit court’s conclusion that Schurle was not eligible for representation by the Public Defender because he was able- bodied and capable of obtaining employment. We note that Schurle has been represented by the Public Defender on appeal, and it is unclear whether issues concerning his indigency will recur on remand. We remind the circuit court, however, that a determination of indigency must be based on “the means at [the defendant’s] disposal or available to him to obtain counsel.” § 600.086.1. If the defendant’s financial circumstances later change, a further determination of indigency may be made “at any stage of the proceedings.” § 600.086.3. The relevant statutes also provide that, if a defendant “becomes financially able to meet all or some part of the cost of services rendered to him,” “at any time, either during or after the disposition of his case,” the defendant may at that time be required to reimburse the Public Defender for the costs of his representation “in such amounts as he can reasonably pay.” § 600.090.1(2).
16 Conclusion We reject Schurle’s argument that the evidence at trial was insufficient to
support his conviction for delivery of methamphetamine. We conclude, however,
that Schurle is entitled to a new trial because the circuit court failed to conduct a
hearing to ensure that Schurle was knowingly and voluntarily waiving his right to
counsel, before conducting a trial at which Schurle was unrepresented. We
accordingly reverse the circuit court’s judgment, and remand for further
proceedings consistent with this opinion.
Alok Ahuja, Judge All concur.