                dire and gave his opening statement. After opening statements, Williams
                requested that his standby counsel be appointed as lead counsel. The
                district court denied Williams's request because standby counsel requested
                that the court grant a one-day recess and the district court did not want to
                delay the proceedings. Williams conducted the remainder of the trial and
                was subsequently convicted of both counts. This appeal followed, in which
                Williams asks this court to review whether the district court erred in
                failing to conduct a proper Faretta canvass before allowing Williams to
                represent himself.
                The Faretta canvass was insufficient
                              Williams contends that he was denied his constitutional right
                to counsel because the district court's Faretta canvass was inadequate.
                Specifically, Williams states that he was unaware of the potential
                sentence and did not know that he would lack a potential claim of
                ineffective assistance of counsel in future habeas corpus proceedings.
                Further, Williams contends that the district court acknowledged that he
                was incompetent to represent himself but still allowed him to do so. In
                contrast, the State contends that the canvass was sufficient, based on the
                questions asked by the district court and by reference to the record as a
                whole.
                              "We give deference to the district court's decision to allow the
                defendant to waive his right to counsel." Hooks v. State, 124 Nev. 48, 55,
                176 P.3d 1081, 1085 (2008). However, "harmless-error analysis does not
                apply to an invalid waiver of the right to counsel," and if we determine
                that the canvass was insufficient, "we must reverse [the defendant's]
                judgment of conviction and remand for a new trial." Id. at 57-58, 176 P.3d
                at 1086-87.

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                            In Faretta v. California, the United States Supreme Court
                mandated that a defendant opting to represent himself or herself must
                "knowingly and intelligently forgo those relinquished benefits." 422 U.S.
                806, 835 (1975) (internal quotations omitted) (referring to the "traditional
                benefits associated with the right to counsel"). But it is not necessary that
                the defendant have the skill or experience of an attorney; he or she must
                simply "be made aware of the dangers and disadvantages of self-
                representation, so that the record will establish that 'he knows what he is
                doing and his choice is made with eyes open."        Id. (quoting Adams v.
                United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
                            Hooks relies on Faretta as a basis for its analysis. 124 Nev. at
                53-54, 176 P.3d at 1084. In Hooks, the district court stated that a
                defendant's waiver must be knowing, intelligent, and voluntary. Id. at 54,
                176 P.3d at 1084. The district court went on to state that a defendant's
                waiver must be reviewed under each case's particular facts and
                circumstances, "including the defendant's background, experience, and
                conduct."   Id.     In order to ensure that the defendant's waiver was
                appropriate, the court reaffirmed its prior decision in Wayne v. State, 100
                Nev. 582, 691 P.2d 414 (1984), which 'urged [trial courts] to canvass
                defendants."      Hooks, 124 Nev. at 54, 176 P.3d at 1084 (alteration in
                original) (quoting Wayne, 100 Nev. at 585, 691 P.2d at 416). It also urged
                district courts to make specific "findings as to whether the defendant's
                waiver of the right to counsel is knowing, intelligent, and voluntary." Id.
                at 55-56, 176 P.3d at 1085.




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                            Hooks also relies on SCR 253, which provides additional
                guidance to district courts when conducting a Faretta canvass. Id. at 54,
                176 P.3d at 1084-85. SCR 253(1) is clear in its requirements that
                            the [district] court should make a specific,
                            penetrating and comprehensive inquiry of the
                            defendant to determine whether the defendant
                            understands the consequences of his or her
                            decision to proceed without counsel. The district
                            court's observation of the defendant should reveal
                            that the defendant appears to understand the
                            nature of the proceedings, and is voluntarily
                            exercising his or her informed free will. The
                            district court's inquiry should reveal whether the
                            defendant should consult with appointed counsel
                            to discuss the consequences of self representation
                            before deciding to proceed in proper person.
                            In fact, SCR 253(4) requires that a district court make specific
                findings on the record as to whether: "(a) The defendant is competent to
                waive his or her constitutional right to be represented by an attorney; and
                (b) The defendant is waiving the right to counsel freely, voluntarily and
                knowingly, and has a full appreciation and understanding of the waiver
                and its consequences." To guide the district courts, SCR 253 includes
                certain "dangers, disadvantages and consequences of self representation,"
                of which the district courts should inform the defendant, SCR 253(2), and
                a list of areas that district courts are advised to cover when canvassing the
                defendant. SCR 253(3).
                            Finally, Hooks provides that a "mechanical performance of a
                Faretta canvass," or a canvass "addressing specific matters 'that go
                beyond the general requirements of Faretta," is not required as long as it
                is clear from the record that the defendant was aware of the risks of
                representing himself. 124 Nev. at 55, 176 P.3d at 1085 (quoting Graves v.

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                State, 112 Nev. 118, 125, 912 P.2d 234, 238 (1996)). The inquiry, however,
                is "not whether he was able to competently and intelligently represent
                himself."   Graves, 112 Nev. at 124, 912 P.2d at 238 (internal quotations
                omitted). Further, even a complete lack of a Faretta canvass does not
                mandate reversal if it is clear from the record that the defendant was
                aware of his rights and still wished to represent himself. Hooks, 124 Nev.
                at 55, 176 P.3d at 1085 (citing Graves, 112 Nev. at 125, 912 P.2d at 238).
                             In this case, the district court's first question to Williams was
                if he knew the range of punishment for the two crimes charged. Williams
                gave the incorrect answer. The district court, rather than correcting him,
                went on to ask Williams if he knew how to subpoena witnesses. The
                conversation then devolved into an argument between the district court
                and Williams regarding the public defender's office and the quality of
                representation. Williams believed that he had no choice but to represent
                himself because the public defender's office would not let him put on
                certain witnesses and he felt that he was excluded from an unrelated trial.
                During the less-than-ten-minute colloquy, the district court asked
                Williams how many felony convictions he had, whether he knew what
                witnesses would be relevant, how many years of school he had completed,
                and whether he knew his duty if the district court sustained an objection.
                The district court also warned Williams that he was facing a much longer
                sentence than two to five years, that Williams would not be able to
                withdraw his Faretta waiver, and that it was a bad decision for Williams
                to choose to represent himself. Williams stated that he understood but felt
                that he had no choice but to represent himself.




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                                                                      OSSZYM
                            The most telling exchange between Williams and the district
                court came at the end of the hearing:
                                  [District court]: . . . [Y]ou don't know what
                            the sentence is, you don't know how to subpoena
                            witnesses, you don't know how to give notice.
                            Your motions may not be relevant and yet you
                            want to represent yourself. You didn't even
                            realize you're looking at the habitual criminal
                            statute. I asked you and you didn't have — you
                            don't have any clue, but you can deal with it
                            because you're the tough guy.
                                  [Williams]: No, I'm just innocent.
                                   [District court]: Big mistake on your part,
                            big mistake. You're going to represent yourself,
                            figure out how to file your motions.
                            The canvass was anything but "specific, penetrating [or]
                comprehensive." SCR 253(1). Perhaps Williams knew and understood
                that he had a right to appointed counsel, but he did not appreciate the
                nature and severity of the crimes charged and the nature of the upcoming
                proceedings. In reviewing the topics and questions that the district court
                should ask a defendant, the district court did not: (1) clearly state that
                Williams would be required to comply with all the same rules that lawyers
                are required to comply with, (2) warn Williams that he would not have a
                claim of ineffective assistance of counsel on appeal, (3) inform Williams
                that he would not be given special library privileges, (4) warn Williams
                that the prosecution would likely have an advantage because he did not
                understand all of his rights or defenses, and (5) inform Williams that his
                defense may be "diminished by [his] dual role as attorney and accused."
                SCR 253(2). Further, of the topics that a district court may cover with a
                defendant under SCR 253(3), the district court only asked Williams about


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                the level of his education and his understanding of the possible penalties if
                found guilty. Finally, the district court did not make specific findings on
                the record as required by SCR 253(4). The circumstances under which the
                canvass was conducted do not clearly show that Williams knowingly and
                intelligently waived his right to counsel. Hooks, 124 Nev. at 54, 176 P.3d
                at 1084.
                            Although we conclude that the canvass itself was insufficient,
                we must also look to the record as a whole to determine if it shows that the
                waiver was appropriately granted. Id. at 55, 176 P.3d at 1085. The State
                contends that by looking to the record as a whole, it is evident that, even if
                the canvass was improper, Williams still knowingly, intelligently, and
                voluntarily waived his right to counsel. During the pendency of the
                proceedings, Williams had two attorneys and dismissed both of them. If
                Williams's second appointed counsel had remained throughout the trial,
                any error with respect to the Faretta canvass would have been cured. But
                because another Faretta canvass was not conducted after the withdrawal
                of Williams's second attorney and the district court relied on the original
                improper Faretta canvass, the district court's error remained.
                            Furthermore, because every reasonable presumption against
                waiver should be made, United States v. Erskine, 355 F.3d 1161, 1167 (9th
                Cir. 2004), and the "defendant's courtroom performance [cannot be used]
                in deciding whether the defendant was competent to waive his right to
                counsel," United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978), the
                district court's canvass and the record as a whole do not show that
                Williams's waiver was knowing, intelligent, and voluntary. Because
                harmless-error analysis does not apply, reversal and a new trial are


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necessary. Hooks, 124 Nev. at 57-58, 176 P.3d at 1086-87. Accordingly,
for the foregoing reasons we
            ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for a new trial and further
proceedings consistent with this order."




                                               A   5
                                   Douglm



                                   Saitta



cc: Hon. Doug Smith, District Judge
     Sandra L. Stewart
     Attorney General/Carson City
     Clark County District Attorney
     Eighth District Court Clerk




      'Williams raises several other issues on appeal. In light of our
decision to reverse the judgment of conviction, we need not reach these
issues.




                                     8
