                  IN THE SUPREME COURT OF THE STATE OF IDAHO

                                          Docket No. 46268

STATE OF IDAHO,                                      )
                                                     )
     Plaintiff-Respondent,                           )       Boise, January 2019 Term
                                                     )
v.                                                   )       Opinion filed: February 1, 2019
RICHARD PAUL MEYERS,
                                                     )
                                                     )       Karel A. Lehrman, Clerk
     Defendant-Appellant.                            )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Ada County. Hon. Jonathan Medema, District Judge.

        The judgment of the district court is affirmed.

        Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant.
        Ben P. McGreevy argued.

        Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent.
        Mark W. Olson argued.

              _______________________________________________

MOELLER, Justice
        Richard Meyers appeals from a judgment of conviction for grand theft on the grounds
that he was denied his Sixth Amendment right to self-representation. For the reasons stated
below, we affirm.
                  I.      FACTUAL AND PROCEDURAL BACKGROUND
        Five days after his release from prison on an unrelated charge, Richard Meyers
(“Meyers”) was arrested for stealing a pickup truck. He was subsequently charged with felony
grand theft, in violation of Idaho Code sections 18-2403(1), 18-2407(1)(b) and 18-2409, and
assigned a public defender. With the assistance of his appointed counsel, Meyers pleaded not
guilty and waived his right to a jury trial.
        Two months later, dissatisfied with his assigned counsel’s performance, Meyers filed a
motion for a “change of an attorney” with the district court. A hearing on this motion was held,
wherein the district court inquired about Meyers’s problems with his attorney and questioned his
counsel regarding trial preparation. After observing the court’s colloquy with his counsel,

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Meyers withdrew his motion, indicating that he wanted to give his attorney “a chance,” and that
he could work with his counsel. 1
         On the day set for trial, Meyers’s counsel expressed concerns about his client’s mental
capacity. The district court questioned Meyers and ordered that Meyers undergo a competency
evaluation. Although the evaluation report concluded that Meyers was competent to stand trial,
the State believed that this conclusion was too tenuous and requested a second evaluation, which
the court granted. The second evaluation concluded that Meyers was not competent to stand trial.
Thus, the court ordered Meyers to undergo mental health treatment before proceeding.
         After treatment, Meyers was deemed “fit to proceed” with trial, and his case was put back
on the trial calendar. Throughout the competency hearings, Meyers repeatedly expressed
dissatisfaction with the pace of the proceedings—at times directly addressing the court without
the assistance or prior consent of his counsel. Consistent with this practice, when the court began
proposing trial dates at the conclusion of the final competency hearing, Meyers spoke out,
requesting that the court expedite the trial. The court responded that it was willing to set the trial
for the week between Christmas and New Year’s Day, but Meyers’s counsel indicated that he
was unavailable that week. Meyers requested that the court conduct the trial then and indicated
that he would get a new public defender for the trial. Meyers’s counsel indicated that this was not
a possibility and the State expressed doubts about getting witnesses for the trial between the two
holidays, so the court set the trial for January 25, 2017.
         Later that day, Meyers sent a letter to the judge requesting that his one-day bench trial be
set between Christmas and New Year’s Day. Additionally, he informed the judge that he had
fired his public defender, was “prepared to represent” himself, and would present his defense “as
soon as is possible.” In the letter, Meyers explained that “part of the reason” he was dismissing
his assigned counsel was because postponing the trial would interfere with his transitional
housing funding. He also discussed other objections he had previously raised about his counsel’s
performance. Meyers concluded the letter with the following sentence: “I choose to exercise the
right to defend myself in this matter.”
         There are no indications in the letter that Meyers sent a copy to his public defender. The
1
  Meyers also sent several additional letters to the court on a variety of topics, including two letters requesting that
the judge reduce his charge, a letter requesting that a competency hearing be cancelled and his case be put back on
the trial calendar, a letter indicating his disagreement with the outcome of his trial, and a letter attached to his pro se
notice of appeal detailing his problems communicating with his counsel. Like the letter at issue in the case, the court
did not take up any of Meyers’s letters that were not designated as a “motion.”

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letter is stamped “received” the day after the hearing, and there is an electronic stamp on the
letter indicating that it was scanned into the Odyssey system, but the record is silent as to what
occurred after the district court received this letter. The letter was not written in the form of a
motion for the appointment of new counsel; rather, it merely advised the court of Meyers’s
decision to “fire” his attorney of record and represent himself. Meyers did not submit a request
for a hearing or attempt to schedule one. Nothing in the record suggests that the court ever saw
the letter, or was made aware of its contents, prior to trial.
        The bench trial occurred, as previously scheduled, on January 25, 2017. At trial, Meyers
was represented by new counsel from the public defender’s office. Before the trial began, the
court confirmed that Meyers wished to proceed without a jury and asked if there were any other
matters that needed to be addressed before the trial began. Meyers, through his new attorney,
confirmed his decision to proceed with a bench trial. Meyers’s counsel requested that Meyers’s
restraints be partially removed to free his hand so he could communicate with his counsel, but he
did not raise any other issues at that time. During the trial, Meyers cooperated with his new
attorney and eventually, with his attorney conducting the direct examination, testified on his own
behalf. His attorney handled all aspects of the trial, and at no point during the trial did Meyers or
his counsel mention his earlier request to represent himself. At the conclusion of the trial, the
district court found Meyers guilty of grand theft. Thereafter, Meyers was sentenced to a unified
term of seven years, with two years fixed.
        Meyers appealed, arguing that his Sixth Amendment right to self-representation was
violated by the district court’s failure to discuss his letter, which contained the assertion of his
right to self-representation. His appeal was first heard by the Idaho Court of Appeals. In an
unpublished decision, it affirmed Meyers’s conviction and sentence, holding that although
Meyers clearly and unequivocally invoked his right to self-representation, he abandoned the
invocation of that right by subsequent conduct. Because this case presents a constitutional issue
of first impression in Idaho, this Court granted a Petition for Review.
                                II.     STANDARD OF REVIEW
        “While this Court gives serious consideration to the views of the Court of Appeals when
considering a case on review from that court, this Court reviews the district court’s decisions
directly.” Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). Constitutional issues,



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such as a defendant’s right to self-representation, are “pure questions of law over which this
Court exercises free review.” Id.
                                        III.    ANALYSIS
       Meyers argues that the district court violated his right to self-representation as guaranteed
by the Sixth Amendment to the U.S. Constitution by ignoring his request to represent himself.
The State argues that Meyers did not unequivocally invoke his right to self-representation, and
even if he did, he abandoned his request through his conduct.
       The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his
defence.” Implicit in this protection is also the “right to proceed pro se when [the accused]
voluntarily and intelligently elects to do so.” State v. Hoppe, 139 Idaho 871, 874, 88 P.3d 690,
693 (2003) (citing Faretta v. California, 422 U.S. 806 (1975)). The reason a defendant has the
right to defend himself is because it is he, “and not his lawyer or the State, [who] bear[s] the
personal consequences of a conviction. . . . [a]nd although he may conduct his own defense
ultimately to his own detriment, his choice must be honored out of that respect for the individual
which is the lifeblood of the law.” Faretta, 422 U.S. at 834 (internal quotations omitted).
However, before a defendant waives his right to counsel and represents himself, the trial court
has a duty to make the defendant “aware of the problems inherent in self-representation so that
such waiver is knowingly and intelligently made.” State v. Clayton, 100 Idaho 896, 897, 606
P.2d 1000, 1002 (1980) (referencing Argersinger v. Hamlin, 407 U.S. 25 (1972)). Further, the
request to proceed pro se must be clear, unequivocal, and timely. State v. Lippert, 145 Idaho 586,
597, 181 P.3d 512, 523 (Ct. App. 2007); see also Adams v. Carroll, 875 F.2d 1441, 1444 (9th
Cir. 1989) (“[T]he request to proceed without counsel [must] be unequivocal”); Brown v.
Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (“In order for a defendant to represent himself, he
must ‘knowingly and intelligently’ forego counsel, and the request must be ‘clear and
unequivocal’ ”) (quoting Faretta, 422 U.S. at 835); Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.
1982) (“The constitutional right of self-representation . . . must be timely asserted . . . [A] motion
to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic
to secure delay.”). “To qualify as unequivocal, ‘a defendant must make an explicit choice
between exercising the right to counsel and the right to self-representation so that a court may be



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reasonably certain that the defendant wishes to represent himself.’ ” U.S. v. Carpenter, 680 F.3d
1101, 1102 (9th Cir. 2012) (quoting U.S. v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994)).
          Meyers argues that he clearly and unequivocally invoked his right to self-representation
in his letter to the court. We agree. His letter contained several statements that plainly invoked
his right to proceed pro se. His letter indicated that (1) he had “fired” his court-appointed
counsel, (2) he “was prepared to defend [him]self in this matter”, and (3) he would present his
defense “as soon as is possible.” Further, Meyers concluded his letter with a formal invocation of
this right: “I choose to exercise the right to defend myself in this matter.” Certainly, this
communication to the court was a clear and unequivocal invocation of Myers’s right to self-
representation. Nevertheless, it was also an attempted ex parte communication with the trial
judge—not a motion. What is less clear from the record is whether the judge ever viewed the
letter.
          Meyers argues that his constitutional right to self-representation was violated because
there was no hearing addressing his request to proceed pro se, his request was never mentioned
by the court, and he never abandoned his request. The State argues that Meyers abandoned his
request to proceed pro se when he appeared with new counsel at the trial and failed to re-assert
this request until after he was found guilty. Whether the presiding judge was aware—or should
have been aware—of the request for self-representation is an issue we need not decide if Meyers
abandoned his request. Based on the overwhelming evidence in the record, we agree with the
State’s position.
          Not only must the Sixth Amendment right to self-representation be invoked
unequivocally, the defendant’s subsequent conduct must also indicate a continuing intention to
proceed pro se. Brown, 665 F.2d at 611 (“Even if defendant requests to represent himself . . . the
right may be waived through defendant’s subsequent conduct indicating he is vacillating on the
issue or has abandoned his request altogether.”). Indeed, “[a] waiver may be found if it
reasonably appears to the court that defendant has abandoned his initial request to represent
himself.” Id.
          Idaho has not yet adopted an approach for determining when the request for self-
representation is abandoned or waived after it is invoked. Other jurisdictions have addressed this
issue utilizing various approaches. For instance, in People v. Kenner, 272 Cal. Rptr. 551, 554–55
(Cal. Ct. App. 1990), the California court of appeals adopted a per se test wherein the defendant

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was deemed to have abandoned or withdrawn his request for self-representation where he “had
both time and opportunity to follow up on his request for a hearing on his Faretta motion, and
failed to do so.” Kentucky has adopted a similar approach. Swan v. Kentucky, 384 S.W.3d 77,
93–94 (2012) (holding that a defendant’s failure to re-raise his Faretta motion to a new judge
constituted abandonment of his request to proceed pro se or as co-counsel). In Arizona, courts
have adopted a totality of the circumstances test to determine whether a defendant has abandoned
his Faretta motion when the court “fails to consider and rule on the motion.” State v. McLemore,
288 P.3d 775, 786 (2012). Under this test,
               [i]nformative factors include but are not limited to [1] a
               consideration of the defendant’s opportunities to remind the court
               of a pending motion, [2] defense counsel’s awareness of the
               motion, [3] any affirmative conduct by the defendant that would
               run counter to a desire for self-representation, [4] whether the
               defendant waited until after a conviction to complain about the
               court’s failure to rule on his or her motion (thus indicating the
               defendant was gaming the system), and [5] the defendant’s
               experience in the criminal justice system and with waiving
               counsel.

Id. As a matter of first impression, we are persuaded that a totality of the circumstances test best
protects the constitutional rights of a defendant because it not only addresses the opportunities a
defendant had to remind the trial court of a pending motion, but it also considers other relevant
circumstances in the record. Accordingly, we adopt this approach.
       Applying this test to the instant case, we conclude that Meyers abandoned his request to
represent himself. First, Meyers had the opportunity to address or renew his motion before the
trial began, when the court asked if there were any other matters to be taken up. Meyers, who
appeared with newly appointed counsel, did not mention or renew his request to proceed pro se.
His counsel conveyed Meyers’s request that his hands be free during the trial to the court,
offering concrete evidence to the court that an attorney/client relationship was in effect, yet
Meyers and his counsel remained silent as to his request for self-representation. This response
stands in stark contrast to many of Meyers’s previous interactions with the court. In virtually all
proceedings prior to trial, Meyers had been a vocal participant—he would often interrupt counsel
or the court to address the court directly. Second, notwithstanding the repeated assertions that the
trial court “ignored” Meyers’s request to represent himself, there is no evidence in the record
indicating that the court or counsel were even aware of Meyers’s request to proceed pro se.

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Meyers’s letter to the court indicated that he had “fired” his prior counsel and notified counsel’s
supervisor of this fact, but there is no evidence in the record that his substitute counsel knew of
Meyers’s letter or his request to proceed pro se. Third, Meyers appeared at trial with new
counsel, indicating that his issues with previous counsel were resolved by the assignment of
substitute counsel by the public defender’s office and that he acquiesced in the substitute
counsel’s representation. Additionally, the appearance of new counsel with Meyers on the date
of trial was entirely consistent with his earlier oral request to have a different public defender
represent him. Assuming, arguendo, that the trial court was aware of Myers’s request, it could
have reasonably inferred that Meyers had changed his mind about representing himself. Fourth,
Meyers waited until after he was pronounced guilty by the court to renew his request for self-
representation, indicating dissatisfaction with the result of the proceedings, rather than his
representation at trial. Finally, the record establishes that although there were concerns about his
competence, Meyers had several prior convictions and had been in state custody for fourteen
years, thus indicating at least some familiarity with the criminal justice system. However, it is
unclear whether he had ever represented himself in any of his prior cases.
       Thus, the totality of the circumstances establish that while Meyers clearly invoked his
right of self-representation in his letter to the court, he later abandoned this request and waived
this right by his subsequent conduct. Meyers did not notify any other party of his request, nor did
he remind the court of his request, though he had many opportunities. He appeared on January 25
with new counsel and acquiesced to such representation by permitting counsel to act on his
behalf throughout the trial, strongly suggesting that his concerns with prior counsel had been
resolved.
       Notwithstanding this ruling, there are aspects of this case that are concerning to the
Court. For example, the record is unclear as to (1) the trial judge’s knowledge of Myers’s letter,
and (2) whether copies of the letter were provided to counsel. Because the record is silent as to
these matters, and because these discrete issues were not raised by the parties on appeal, we do
not comment on whether viewing the letter or failing to forward the letter would have been error.
However, by way of providing guidance, we caution trial courts to adopt procedural protocols
and safeguards that will ensure compliance with the provisions of the Idaho Judicial Canons, in




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particular Rule 2.9(A) and (C), 2 regarding the handling of ex parte letters to the court. In a case
such as this one, where the trial judge is also the trier of fact, it would behoove the court to avoid
any exposure to ex parte information. This Court recognizes that a wide range of approaches
have been taken by trial judges and court clerks across the state to deal with such matters in the
past. Such procedures may need to be reviewed and updated in light of the judiciary’s recent
adoption of statewide business processes as part of its implementation of the Odyssey Case
Management System.
                                             IV.      CONCLUSION
        We hold that the district court did not violate Meyers’s Sixth Amendment right to self-
representation. Although Meyers clearly and unequivocally invoked his right to proceed pro se,
the totality of the circumstances establish that he subsequently abandoned that right.
Accordingly, the judgment of conviction is affirmed.


        Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER CONCUR.




2
  Rule 2.9(A) provides that “[a] judge shall not initiate, permit, or consider ex parte communications, or consider
other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or
impending matter, . . .” However, if the defendant’s attempted communication concerns a request for the
appointment of new counsel or an intention to represent himself, it would be an appropriate matter for a clerk to
bring to the trial judge’s attention. Additionally, the best practice under such circumstances is to follow the
requirements of Idaho Judicial Canon, Rule 2.9(C):
        If a judge receives an unauthorized ex parte or other prohibited communication bearing upon the
        substance of a matter, the judge shall promptly make provision to notify the parties of the
        substance of the communication and provide the parties with an opportunity to respond. If the
        communication was in writing, the judge shall promptly provide a copy to the parties.


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