RILEY, Chief Judge.
Ronnie Lee Owen asserts the revocation of his supervised release and sentence of 24 months imprisonment were in error because his waiver of counsel and decision to proceed pro se were invalid.
Owen pled guilty in 2010 to knowingly making, uttering, and possessing counterfeit securities in violation of 18 U.S.C. § 513(a) and was sentenced to 66 months imprisonment followed by 36 months supervised release. In 2011, Owen pled guilty to identity theft in violation of 18 U.S.C. § 1028(a)(3) and was sentenced to 36 months imprisonment with 36 months supervised release.
Owen found himself unable to keep out of trouble while on supervised release. Between August 24, 2015 and April 13, 2016, Owen's probation officer filed a violation report and four supplemental violation reports alleging over twenty violations of numerous conditions of Owen's release, including: pay the required fine and restitution in compliance with the scheduled payments; answer truthfully to his probation officer's inquiries; find lawful employment; refrain from incurring new debt unless in compliance with his installment payment schedule; refrain from associating with any person convicted of a felony; notify the probation officer of any changes in residence; provide the probation officer access to any requested financial information; and refrain from committing another federal, state, or local crime.
The revocation proceedings on both cases were combined, and Owen had his first revocation hearing before the district
At this second revocation hearing, Owen's counsel informed the court Owen was receiving his medication but, in Owen's opinion, the medication was not the correct dose and Owen "needed a few more weeks before the medication completely cycled through and stabilized him." The district court expressed its frustration with another continuance, noting because Owen was just sitting in jail "in essence he's giving himself a revocation." The government objected to the continuance, citing a worry that Owen "keeps making up these excuses and feigning an exaggerated illness or lack of medication." Nevertheless, the district court continued the hearing until April 19, and warned Owen "[t]here won't be any more continuances granted."
Disregarding this warning, Owen again requested to continue his third revocation hearing, this time requesting more time to hire new counsel. Owen expressed he had sent "numerous letters" to his retained attorney, but had not seen or heard from him since the prior hearing. Owen stated he was frustrated that "every time [he] come[s] to court, there's an amended violation report and [he's] given no notice." Owen felt he was unable to prepare an adequate defense to the alleged violations, although Owen's attorney had reviewed the reports with him immediately before each hearing. The government indicated a concern Owen was using the request for new counsel as a delay tactic. Owen assured the district court he was only seeking "a proper defense." The district court told Owen's counsel, as "Mr. Trump would say[,] You're fired" and set a fourth revocation hearing for May.
Owen appeared before the magistrate judge for a status conference on May 16. Owen indicated he was aware he had a final revocation hearing set for May 26 and he wanted to obtain new counsel, but was unable to reach the new counsel he had identified to retain. The magistrate judge stated it was in Owen's "best interest" to "have counsel appointed to represent" him at his final revocation hearing, and the judge would appoint "someone who is very experienced in federal court who would be able to jump in and immediately begin working with [Owen]." The magistrate judge also expressed he believed "everybody would prefer that [Owen] have counsel representing" him and that "it's a bad idea to represent yourself.... [I]t doesn't
Owen then asked the magistrate judge if he would be able to proceed pro se if he did not like his appointed counsel. In response to this, the magistrate judge told Owen he would "probably have to make inquiry of [Owen] as to certain factors" yet he would "probably strongly urge [Owen] to not do that." The magistrate judge also quoted the "old expression that a person who represents themself has a fool for an attorney," and said, if Owen wished to represent himself, the judge would allow him to do so if the judge made a finding Owen knowingly and voluntarily waived his right to counsel. Owen assured the magistrate judge he had "been through this once before" and was unhappy with his counsel's performance in a prior case. Concerned Owen would be resistant to appointed counsel, the magistrate judge advised Owen he "need[ed] to be prepared to move forward" on May 26, either with appointed counsel or on his own pro se.
At this fourth revocation hearing, Owen appeared with appointed counsel. The appointed counsel reported to the district court Owen told him he had recently filed a bar complaint against the appointed counsel and "that creates an issue for" the appointed counsel regarding "if [he] [could] proceed or not." The district court considered this report a motion to withdraw as counsel. Owen declared his dissatisfaction with his appointed counsel, complaining his counsel declined to pursue any of Owen's suggested defense theories, and Owen claimed he had filed both a bar complaint and a civil suit against his appointed counsel. The district court denied the motion to withdraw as counsel, as Owen "demonstrate[d] a pattern and practice... of trying to eventually avoid this day in court."
The district court presented Owen with three options: (1) Owen could "make all the arguments [him]self ... acting as [his] own attorney"; (2) Owen could "have [his] counsel that [the court had] appointed and paid for ... serve as [Owen's] attorney"; or (3) Owen could represent himself and have his appointed counsel serve as standby counsel. Owen expressed uncertainty over which option to take, claiming he had "no way of understanding what the violations even are," so he "fail[ed] to see how [he] could participate or assist in [his] own defense ... [or] represent [him]self." Although Owen's appointed counsel had reviewed the violation reports with Owen, Owen complained he did not have a physical copy in his possession. The district court then granted the motion to withdraw as counsel and told Owen he could proceed pro se with appointed counsel as standby, but it was "the last time [the court was] going to let [Owen] terminate [his] counsel before moving ahead."
Owen replied he did not "recall asking to be pro se." The district court stated it refused "to delay this inevitable hearing" due to the "multiple excuses about why [Owen] want[s] to move off and change counsel." The district court determined, because Owen refused to proceed with appointed counsel, he would proceed pro se with appointed counsel standing by to assist Owen if needed. The government proceeded to summarize the alleged violations, and Owen stated he could not "either admit or deny them because [he hadn't] had time to go over them." In the course of the hearing, Owen cross-examined the government's witnesses, questioned his probation officer regarding inconsistencies between the probation officer's written reports and oral testimony, and objected to a law enforcement officer's testimony as hearsay and violating his right to confront his accusers. When the district court denied his objections, Owen expressed his dissatisfaction
The district court found Owen had multiple grade-B violations ("constituting any... federal, state, or local offense punishable by a term of imprisonment exceeding one year," United States Sentencing Guidelines (U.S.S.G.) § 7B1.1(a)(2)) of his conditions of supervised release and a criminal history category of VI. Owen argued the only grade-B violations were charges that should not be considered because he had not yet "had an opportunity to have [his] day in court," and, because the other violations were only grade-C violations ("constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision," id. § 7B1.1(a)(3)), he requested a sentence of 12 months and one day imprisonment. The district court sentenced Owen to 24 months imprisonment and Owen filed a pro se notice of appeal.
Owen's sole argument on appeal is he did not knowingly, voluntarily, or intelligently waive his right to counsel.
The only right Owen can assert, then, is statutory.
Owen first claims his waiver was involuntary because "it was a forced choice between counsel he perceived was unprepared and representing himself." "While the `Hobson's choice' between proceeding to trial with an unprepared counsel or no counsel at all may violate the right to counsel, there is no constitutional difficulty where the defendant is provided the real alternative of choosing between adequate representation and self-representation."
Owen's complaints about his appointed attorney being unprepared and not agreeing with Owen's preferred strategies do not amount to a justifiable dissatisfaction demonstrating the district court abused its discretion in refusing to appoint Owen new counsel, particularly considering Owen had already fired one counsel at a prior revocation hearing. The magistrate judge had assured Owen his appointed counsel would be "very experienced in federal court" and "able to jump in and immediately begin working with [Owen]." There is no evidence Owen's appointed counsel was unprepared or otherwise incompetent.
Owen next contends his waiver was not knowing and intelligent because the district court "did not ask questions to make sure that [Owen] understood what he was doing and comprehended the complexities of representing himself." "[A]lthough the waiver need not meet the formal requirements required by the Sixth Amendment, the waiver must be knowing and voluntary as demonstrated either through a colloquy with the district court, or by the totality of the circumstances, or both."
Factors relevant to the totality of the circumstances include:
In addition, Owen's age (47 at the time of the hearing) and his extensive experience with the criminal justice system indicate he was adequately equipped to make the decision to represent himself. Owen had a criminal history category of VI at his original sentencing, was no stranger to court hearings, and had assured the magistrate judge he had "been through this once before." The context of Owen's decision to
Owen "appreciated what was at stake, understood the nature of the charges, and knew what the factual issues were."
Certainly, "[t]he omission of any inquiry into and express evaluation of [Owen's] background, education, and sophistication... renders the inquiry into his waiver less complete than it ideally ought to have been."
Because the totality of the circumstances reflects Owen's decision to proceed pro se at his revocation hearing was voluntary, knowing, and intelligent, and not a denial of due process, we affirm.