State v. Hauge

932 N.W.2d 165
CourtSouth Dakota Supreme Court
DecidedJuly 24, 2019
Docket#28630-a-JMK
StatusPublished
Cited by6 cases

This text of 932 N.W.2d 165 (State v. Hauge) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hauge, 932 N.W.2d 165 (S.D. 2019).

Opinion

3. Whether the circuit court erred in ordering Hauge to pay $31,743.82 in restitution.
4. Whether Hauge's sentence was cruel and unusual.

Analysis and Decision

1. Whether Hauge's Sixth Amendment rights were violated.

[¶10.] Hauge's argument that his Sixth Amendment rights were violated is twofold: (1) he argues the court erred in finding his waiver of his right to counsel was knowing, voluntary, and intelligent; and (2) he claims his court-appointed advisory counsel was ineffective.

[¶11.] In a criminal case, a defendant has a constitutional right to be represented by counsel, but he also has "an *170affirmative right of self-representation[.]"2 See Faretta v. California , 422 U.S. 806, 815, 95 S. Ct. 2525, 2531, 45 L. Ed. 2d 562 (1975) ; see also S.D. Const. art. VI, § 7. The request to represent oneself must be unequivocal, see United States v. LeBeau , 867 F.3d 960, 974 (8th Cir. 2017), and the defendant's waiver of his right to counsel must be voluntary, knowing, and intelligent. See State v. Van Sickle , 411 N.W.2d 665, 666 (S.D. 1987). It is the task of the circuit court to determine that a defendant is knowingly and intelligently waiving the right to counsel before permitting a defendant to proceed pro se. See Van Sickle , 411 N.W.2d at 667 (citing State v. Miller , 248 N.W.2d 61, 63 (S.D. 1976) ).

[¶12.] Even though the circuit court repeatedly advised Hauge that he had the right to assistance of counsel, including court-appointed counsel, Hauge explicitly stated that he wished to represent himself. We must determine, then, whether this waiver was knowing, voluntary, and intelligent. For a waiver to meet this standard, a defendant must be advised of the following risks of self-representation in a criminal trial:

(1) that presenting a defense is not a simple matter of telling one's story, but requires adherence to various 'technical rules' governing the conduct of a trial; (2) that a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney; (3) that a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences; (4) that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation; and (5) that the effectiveness of his defense may well be diminished by his dual role as attorney and accused.

Id. at 666-67.

[¶13.] At his arraignment, the circuit court asked Hauge whether he wanted the assistance of counsel, and he indicated that he did not. After discussing the disadvantages of self-representation, the court found Hauge "knowingly, voluntarily, and intelligently waived his right to counsel" and accepted his waiver.

[¶14.] Two months prior to trial, the State moved the circuit court to appoint advisory counsel to assist Hauge should he change his mind during trial and desire to exercise his right to an attorney. At a subsequent hearing on the motion, the court, after discussing the Van Sickle factors with Hauge, cautioned him:

Court: So, if you represent yourself and if you would get convicted, you can't complain on appeal or a habeas corpus, which is a different type of appeal process later, that you had ineffective assistance of counsel because you chose to represent yourself. You don't get to blame the attorney when you're your own attorney if things do not go the way you want.
Hauge: I understand.

Hauge initially objected to the appointment, but after considering the Van Sickle advisement, he agreed to allow advisory counsel to assist him at trial, stating, "Well, the more you talk about it, I guess I *171would give it a shot." The court then signed the order appointing advisory counsel for Hauge.

[¶15.] Despite this advisement, Hauge now argues that allowing him to actively participate in his own representation at trial constituted reversible error because he lacked experience with trial procedure and defense strategy. For instance, Hauge claims, had he had the benefit of legal training, he would have raised SDCL 22-30A-16 as an affirmative defense to theft by exploitation. That statute allows a defendant to argue he "[a]cted under an honest and reasonable claim of right to the property involved or ... had a right to acquire or dispose of the property as he ... did." Id. For this reason, he claims that the court violated his Sixth Amendment right to counsel by finding his waiver voluntary.

[¶16.] Although the record demonstrates Hauge raised irrelevant issues and made misguided tactical decisions, ultimately, it was Hauge's prerogative to disregard the advice of the circuit court to accept traditional counsel. Hauge instead decided to defend himself at trial with the assistance of advisory counsel. We do not assess his legal competency to defend himself on appeal. Rather, we review his competence to waive the right to counsel. See United States v. Miller , 728 F.3d 768, 773-74 (8th Cir. 2013). The record reveals that the circuit court ensured Hauge was fully aware of the pitfalls of self-representation before accepting his waiver. Hauge is competent and literate, and therefore, his decision to forego traditional representation by an attorney was an exercise of his informed free will. The circuit court did not err in finding Hauge's waiver of his right to traditional representation by counsel was voluntary, knowing, and intelligent. See Van Sickle , 411 N.W.2d at 666.

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Cite This Page — Counsel Stack

Bluebook (online)
932 N.W.2d 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hauge-sd-2019.