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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 32,599

 5 ANSELMO ROMAN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Robert M. Schwartz, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Sergio J. Viscoli, Assistant Appellate Defender
16 Santa Fe, NM

17 John A. McCall
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION
 1 VANZI, Judge.

 2   {1}   Defendant Anselmo Roman appeals from his conviction for trafficking a

 3 controlled substance. [DS 3, RP 60, 66] He contends the district court violated his

 4 right to counsel by granting his request to proceed pro se without adequately

 5 questioning him regarding his ability to represent himself. [DS 10-11] We issued a

 6 calendar notice proposing to summarily reverse, and the State has filed a

 7 memorandum in opposition. We continue to believe the district court erred and thus

 8 reverse Defendant’s conviction and remand for further proceedings.

 9 BACKGROUND

10   {2}   On November 15, 2010, Defendant was charged by indictment with three

11 counts: (1) trafficking by distribution, cocaine; (2) tampering with evidence; and (3)

12 resisting, evading or obstructing an officer. [RP 1] Defendant’s attorney filed an

13 entry of appearance on Defendant’s behalf and then engaged in lengthy plea

14 negotiations relating to this case and a case pending before Judge Martinez.1 [MIO

15 1] The district court held a plea hearing in this case on August 10, 2011, and

16 Defendant’s attorney stated the negotiations had failed and Defendant was proceeding

17 to trial on both cases. [MIO 1-2] Defendant told the court that he did not want his


           1
             In discussing the background of this case, we rely principally on the statement
     of facts set forth in the State’s memorandum in opposition. The State notes that it
     obtained unofficial copies of the transcripts of two pre-trial hearings in preparing its
     memorandum. [MIO 1, n.1, 5]

                                                2
 1 attorney to continue representing him. [MIO 2] The court informed Defendant that

 2 he had a right to an attorney, but explained that the right does not include a right to an

 3 attorney of Defendant’s choosing. [MIO 2] Defendant stated he did not believe his

 4 attorney was aiding in his defense and wanted either a different attorney or to

 5 represent himself. [MIO 2] The court asked Defendant’s attorney to respond, and

 6 Defendant’s attorney informed the court that in the other case, Judge Martinez had

 7 ordered him to continue representing Defendant. [MIO 2] Defendant’s attorney

 8 explained the work he had been doing on the case. [MIO 2]

 9   {3}   The district court advised Defendant that if another attorney was appointed, it

10 would delay the proceedings by as much as a year. [MIO 3] The court stated, “I do

11 not believe that you should be forced to be represented by someone you don’t wish

12 to be represented by. You’re entitled to represent yourself; however, I will hold you

13 to the very same standards that I would hold any attorney to.” [MIO 3] The court

14 asked Defendant’s attorney whether it would be fruitless for he and Defendant to work

15 out their differences, and Defendant’s attorney stated that he felt it would. [MIO 3]

16 The court then announced that it would continue the proceeding and allow Defendant

17 to represent himself, if he wished. [MIO 3] The court again stated it would hold

18 Defendant to the same standards as an attorney and gave Defendant one week to

19 consider his decision. [MIO 4]



                                               3
 1   {4}   On November 15, 2011, the district court held a status conference. [MIO 4]

 2 Defendant’s attorney appeared for the hearing and reminded the court that it had

 3 granted Defendant’s request to proceed pro se. [MIO 4] The court confirmed with

 4 Defendant that he still wanted to represent himself. [MIO 4] The court stated, “You

 5 will be allowed to represent yourself, but as I told you earlier, you will be held to the

 6 same standard as an attorney[.]” [MIO 4] The court asked Defendant whether he

 7 understood that he would not receive special treatment, and he answered in the

 8 affirmative. [MIO 4] The court then appointed Defendant’s attorney to act as stand-

 9 by counsel at trial. [MIO 4] The court asked Defendant’s attorney whether he and

10 Defendant had communicated about the case and he stated, “We’ve talked about the

11 case, I’ve provided him with discovery in this case.” [MIO 4-5] The court then set

12 a date for trial. [MIO 5]

13   {5}   A jury trial began on March 2, 2012. [RP 58] During voir dire, Defendant,

14 proceeding pro se, informed the jury panel that he had been incarcerated for eighteen

15 months and that he had been beaten by police officers and was a victim. [DS 10]

16 Defendant’s stand-by counsel entered an appearance on Defendant’s behalf at that

17 time and moved for a mistrial, which the district court denied. [DS 10, 12]

18 Defendant’s stand-by counsel represented Defendant through the rest of trial. [DS 10,

19 RP 72, 88] The jury found Defendant guilty of trafficking and not guilty of resisting,

20 evading or obstructing an officer. [RP 40, 41, 58]

                                               4
 1 DISCUSSION

 2   {6}   Defendant contends the district court erred in granting his request to proceed

 3 pro se without holding an evidentiary hearing or adequately reviewing his ability to

 4 represent himself. [DS 2] Defendant states that the district court did not make “any

 5 findings of significance” and did not engage in a “significant review of [Defendant’s]

 6 abilities.” [DS 2]

 7   {7}   Where a defendant seeks to represent himself, “the district court must conduct

 8 an inquiry into whether the defendant is making a knowing and intelligent waiver of

 9 counsel and understands fully the dangers of self-representation.” State v. Plouse,

10 2003-NMCA-048, ¶ 22, 133 N.M. 495, 64 P.3d 522 (internal quotation marks and

11 citation omitted). In Plouse, we explained that “[a]lthough there are no fixed

12 guidelines to determine whether a defendant has knowingly and intelligently waived

13 the right to counsel, we have established certain instructions for the district court.”

14 2003-NMCA-048, ¶ 23 (internal quotation marks and citation omitted).

15         [T]he district court is to (1) make a showing on the record that a
16         defendant has some sense of the magnitude of the undertaking and the
17         hazards inherent in self-representation; (2) ensure that [the] defendant
18         has been informed of the nature of the charges, the statutory offenses
19         included within them, the range of allowable punishments, possible
20         defenses or mitigating factors that might be available to the defendant;
21         and (3) admonish the defendant that pro se defendants will be expected
22         to follow the rules of evidence and courtroom procedure.


                                              5
 1 Id. (alterations, internal quotation marks, and citation omitted). “We review de novo

 2 whether Defendant’s decision to waive counsel was knowingly, intelligently, and

 3 voluntarily made.” State v. Vincent, 2005-NMCA-064, ¶ 11, 137 N.M. 462, 112 P.3d

 4 1119.

 5   {8}   As a preliminary matter, we note that even though Defendant was represented

 6 by counsel during the majority of his trial, “anything less than full representation by

 7 counsel raises a question concerning a valid waiver of the right to counsel.” State v.

 8 Castillo, 110 N.M. 54, 57, 791 P.2d 808, 811 (Ct. App. 1990). We held in Castillo

 9 that “[a]lthough appointment of standby counsel is preferred, the presence of advisory

10 counsel in the courtroom does not, by itself, relieve the trial court of its duty to ensure

11 that defendant’s waiver is made knowingly and intelligently.” Id. at 58, 791 P.2d at

12 812.

13   {9}   The State contends the district court “substantially complied” with the

14 requirements set forth in our case law because Defendant’s attorney “confirmed that

15 Defendant was knowledgeable of the charges and the evidence, as he had been

16 provided with the discovery and had spoken with counsel about the case prior to trial.”

17 [MIO 6, 7] The State also contends that, because the record establishes that Defendant

18 was present for his arraignment, where he was represented by counsel and entered a

19 plea of not guilty, “the trial court could reasonably conclude that Defendant was aware



                                                6
 1 of the nature of the charges, the evidence against him, and possible defenses prior to

 2 the time he chose to represent himself.” [MIO 7]

 3   {10}   The State relies on Plouse to support its position, but Plouse is distinguishable.

 4 In Plouse, we rejected the defendant’s argument that the district court violated his

 5 right to counsel by failing to adequately determine whether his decision to represent

 6 himself was made voluntarily, knowingly, and intelligently. 2003-NMCA-048, ¶¶ 21,

 7 23, 26. The district court engaged in a lengthy colloquy with the defendant regarding

 8 the dangers of self-representation. Id. ¶¶ 24-25. We specifically noted “the depth of

 9 the discourse between [the d]efendant and the district court[.]” Id. ¶ 25. We also

10 noted the defendant “had counsel present in court for his arraignment and thereafter

11 had counsel during virtually all of the pretrial proceedings.” Id. ¶ 28. We explained

12 that documents filed in the case, including a pro se motion to dismiss, reflected that

13 the defendant understood the nature of the proceedings. Id. The defendant was

14 initially represented by counsel at trial and heard discussion between the court and

15 counsel regarding his duress defense. Id. In explaining why he wanted to proceed pro

16 se, the defendant discussed the nature of his defense and the evidence he wanted to

17 present. Id. ¶ 29. On these facts, we held the district court did not err but noted our

18 holding was limited. Id. ¶ 30. We explained:

19          While we do not suggest that the district court should, under any
20          circumstances, simply assume a defendant’s knowledge or understanding
21          or refrain from discussing on the record the underlying circumstances

                                                7
 1          indicating that the defendant knows and understands the material
 2          information, we are comfortable that the court in the present case
 3          ensured [the d]efendant was adequately informed and that the court
 4          substantially complied with the spirit, if not the letter, of Castillo.

 5 Id.

 6   {11}   Here, the district court complied with neither the letter nor the spirit of Castillo.

 7 The district court advised Defendant that he would be held to the same standard as an

 8 attorney but did not make a showing on the record that Defendant “[had] been

 9 informed of the nature of the charges, the statutory offenses included within them, the

10 range of allowable punishments, possible defenses or mitigating factors that might be

11 available to the defendant[.]” Castillo, 110 N.M. at 57, 791 P.2d at 811.

12   {12}   After granting Defendant’s request to proceed pro se, the district court asked

13 Defendant’s attorney whether he and Defendant had communicated about the case,

14 and Defendant’s attorney stated he had discussed the case with Defendant and

15 provided discovery to Defendant. [MIO 4-5] The court never questioned Defendant

16 directly about his understanding, which is clearly the preferred course of action, and

17 we are not willing to infer from the very limited pre-trial proceedings that Defendant

18 had the requisite understanding. Unlike in Plouse, Defendant never engaged in a deep

19 discourse with the court and never revealed his trial strategy, to the extent that he had

20 one. See Plouse, 2003-NMCA-048, ¶¶ 25, 28. The mere fact that Defendant was

21 present at his arraignment, where he was represented by counsel, does not mean that


                                                  8
 1 he understood the charges, statutory offenses, range of punishments, and possible

 2 defenses and mitigating factors. We thus agree with Defendant that the district court

 3 did not conduct the necessary inquiry into whether his waiver of counsel was knowing

 4 and intelligent and whether he fully understood the dangers of self-representation.

 5 CONCLUSION

 6   {13}   For the reasons stated above and in our previous notice, we reverse Defendant’s

 7 conviction and remand for further proceedings consistent herewith.

 8   {14}   IT IS SO ORDERED.

 9                                          __________________________________
10                                          LINDA M. VANZI, Judge

11 WE CONCUR:



12 _________________________________
13 JONATHAN B. SUTIN, Judge



14 _________________________________
15 MICHAEL E. VIGIL, Judge




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