                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-KP-01699-SCT

EDGAR PATTON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          09/05/2008
TRIAL JUDGE:                               HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:                 MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    EDGAR PATTON (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL:
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         HALDON J. KITTRELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 05/13/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    In this felony prosecution, the trial court allowed the defendant to represent himself

without first obtaining a knowing and intelligent waiver of counsel. We reverse on this

important constitutional violation.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    Edgar Patton was indicted for the crime of false pretenses. He unsuccessfully

represented himself in the trial court. He appeals, claiming as one of nine assignments of

error that he did not knowingly and intelligently waive his Sixth Amendment right to

counsel. Because this issue is dispositive, we decline to address the others.
                                              ANALYSIS

¶3.      The United States Constitution’s Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his

defense.” 1 As is true with most constitutional rights, the Sixth Amendment right to counsel

can be waived. Indeed, many states’ constitutions,2 including Mississippi’s,3 grant criminal

defendants the right to represent themselves. However, it is not enough to say the defendant

waived the right to counsel — the waiver must be knowingly and intelligently made.

Accordingly, the narrow constitutional question presented is whether Patton’s waiver of

counsel was knowingly and intelligently made.

                                                     I.

¶4.      Our decision today is framed in the thirty-five-year shadow of Faretta v. California,

422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), wherein the United States Supreme

Court stated:

         [T]he integrity of and public confidence in the system are undermined, when
         an easy conviction is obtained due to the defendant’s ill-advised decision to
         waive counsel. The damage thus inflicted is not mitigated by the lame
         explanation that the defendant simply availed himself of the “freedom to go to

         1
             U.S. Const. amend. VI.
         2
          E.g., Ariz. Const. art. 2, § 24; Ark. Const. art. 2, § 10; Colo. Const. art. 2, § 16; Conn.
Const. art. 1, § 8; Del. Const. art. 1, § 7; Idaho Const. art. 1, § 13; Ill. Const. art. 1, § 8; Ind. Const.
art. 1, § 13; Ky. Const. Bill of Rights, § 11; Mo. Const. art. 1, § 18(a); Mont. Const. art. 2, § 24;
Nev. Const. art. 1, § 8; N.H. Const. pt. 1, art. 15; N.M. Const. art. 2, § 14; N.Y. Const. art. 1, § 6;
N.D. Const. art. 1, § 12; Ohio Const. art. 1, § 10; Okla. Const. art. 2, § 20; Ore. Const. art. 1, § 11;
Pa. Const. art. 1, § 9; S.D. Const. art. 6, § 7; Tenn. Const. art. 1, § 9; Utah Const. art. 1, § 12; Vt.
Const., cl. 1 art. 10; Wis. Const. art. 1, § 7.

         3
             Miss. Const. art. 3, § 26 (1890). See also Gray v. State, 351 So. 2d 1342, 1345 (Miss.
1977).

                                                     2
        jail under his own banner . . . .” The system of criminal justice should not be
        available as an instrument of self-destruction.

Id. 422 U.S. at 839-40 (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15

(2d Cir. 1965)).

¶5.     According to the record, Patton never expressly waived counsel. His only utterance

concerning self-representation was when the trial judge asked him if he intended to represent

himself and Patton replied: “Well, I’m in consulting.” Nevertheless, under the narrow facts

of this case as presented in the record, we are satisfied that Patton’s actions 4 — coupled with

the trial judge’s several admonitions that he obtain counsel — amounted to a manifestation

of his intent to waive his right to counsel. However, our inquiry on the subject does not

conclude until we focus on whether the waiver was knowingly and intelligently made.

                                                  II.

¶6.     Almost a half-century ago, this Court held that a criminal defendant’s waiver of

counsel was insufficient unless — prior to accepting the waiver — the trial court determined

it was knowingly and intelligently made. Conn v. State, 251 Miss. 488, 170 So. 2d 20

(1964). Specifically, the Conn Court held:

        While an accused may waive the right to counsel, whether there is a proper
        waiver should be clearly determined by the trial court, and it would be fitting
        and appropriate for that determination to appear upon the record. In
        accordance with these mandatory decisions we hold that there must be an
        intelligent and competent waiver of counsel by the defendant and that the trial
        court should so determine, and, further, that such determination, as well as the
        facts on which it is based, should appear in the record.



        4
         Although Patton was strongly encouraged by the trial judge to obtain counsel, he never did.
Instead, he prepared and filed numerous pretrial motions, filed a witness list for trial, cross-examined
the State’s witnesses, and called witnesses of his own.

                                                   3
Id. at 23 (citing White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963);

Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); United States

ex rel. Goldsby v. Harpole, 263 F.2d 71, 83 (5th Cir. 1959)).

¶7.    In Faretta, the United States Supreme Court stated:

       When an accused manages his own defense, he relinquishes, as a purely
       factual matter, many of the traditional benefits associated with the right to
       counsel. For this reason, in order to represent himself, the accused must
       “knowingly and intelligently” forgo those relinquished benefits. Although a
       defendant need not himself have the skill and experience of a lawyer in order
       competently and intelligently to choose self-representation, he should 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.

Faretta, 422 U.S. at 835 (emphasis added) (internal citations omitted).

¶8.    The “dangers and disadvantages” of self-representation require that appellate courts

may uphold waivers of the right to counsel only where the defendant’s decision to proceed

pro se was made knowingly and intelligently. United States v. Joseph, 333 F.3d 587, 589

(5th Cir. 2003); United States v. Virgil, 444 F.3d 447, 452 (5th Cir. 2006). Accordingly, it

is to the “dangers and disadvantages of self-representation” of concern to the Faretta Court

— and to how we ensure defendants are made aware of them before waiving counsel — that

we now turn.

                                            III.

¶9.    We fully recognize that every case is different. The circumstances presented to a trial

court will always require a case-by-case evaluation. Curlee v. State, 437 So. 2d 1, 2 (Miss.

1983). However, while courts have not always agreed on exactly what must be done to




                                              4
confirm that a waiver was knowingly and intelligently made, they generally agree that

something must be done.

        Rule 8.05 5

¶10.    In providing assistance to trial judges faced with pro se criminal defendants; in setting

forth the minimum examination that must take place to ensure that waivers of the right to

counsel are knowingly and intelligently made; and in addressing the “dangers and

disadvantages of self-representation” mentioned in Faretta, this Court — pursuant to its

constitutional duty and authority to make rules governing the judiciary — promulgated Rule

8.05, which provides:

        When the court learns that a defendant desires to act as his/her own attorney,
        the court shall6 on the record conduct an examination of the defendant to
        determine if the defendant knowingly and voluntarily desires to act as his/her
        own attorney. The court shall inform the defendant that:

        1.      The defendant has a right to an attorney, and if the defendant cannot
                afford an attorney, the state 7 will appoint one free of charge to the
                defendant to defend or assist the defendant in his/her defense.

        2.      The defendant has the right to conduct the defense and that the
                defendant may elect to conduct the defense and allow whatever role
                (s)he desires to his/her attorney.

        3.      The court will not relax or disregard the rules of evidence, procedure
                or courtroom protocol for the defendant and that the defendant will be
                bound by and have to conduct himself/herself within the same rules as


        5
            URCCC 8.05.
        6
        This Court has held that, “unlike the discretionary nature of ‘may,’ the word ‘shall’ is a
mandatory directive. . . . no discretion is afforded the trial judge.” Ivy v. Harrington, 644 So. 2d
1218, 1221 (Miss. 1994) (emphasis in original).
        7
         The term “state” appears to be an error in the rule. It is the court, not the state, that appoints
counsel for indigent defendants.

                                                    5
              an attorney, that these rules are not simple and that without legal advice
              his/her ability to defend himself/herself will be hampered.

       4.     The right to proceed pro se usually increases the likelihood of a trial
              outcome unfavorable to the defendant.

       5.     Other matters as the court deems appropriate.

       After instructing the defendant and ascertaining that the defendant understands
       these matters, the court will ascertain if the defendant still wishes to proceed
       pro se or if the defendant desires an attorney to assist him/her in his/her
       defense. If the defendant desires to proceed pro se, the court should determine
       if the defendant has exercised this right knowingly and voluntarily, and, if so,
       make the finding a matter of record. The court may appoint an attorney 8 to
       assist the defendant on procedure and protocol, even if the defendant does not
       desire an attorney, but all disputes between the defendant and such attorney
       shall be resolved in favor of the defendant.

URCCC 8.05 (emphasis added).9

¶11.   Thus, according to the rule’s mandatory provisions, the trial judge in this case was

required to advise Patton — on the record — of his rights and the warnings set forth in the

rule. Then, having set forth those rights and warnings, and having made sure Patton

understood them, the trial judge was required to ascertain if Patton still wished to proceed

pro se, or if he wanted an attorney to assist him in his defense. If, after being advised of the

rights and warnings as required by the rule, Patton still wished to proceed pro se, the court

was required to determine whether Patton’s waiver was knowingly and voluntarily made.

And all of this should have been on the record.




       8
       This provision assumes the defendant is indigent. If not, the trial court must inform the
defendant of the right to employ an attorney “to assist the defendant on procedure and protocol.”
       9
        The trial court did not comply with Rule 8.05's requirements, including the disclosures
required by Rule 8.05(1) and (2), and the warnings required by Rule 8.05(3) and (4).

                                               6
¶12.   And as a final matter, if Patton — having been fully informed of the matters set forth

in the rule — waived his Sixth Amendment right to assistance of counsel, then the court was

required to consider whether Patton needed an attorney to assist on procedure and protocol,

even though he did not desire an attorney to try his case.

¶13.   According to the record before us, the trial judge wholly failed to comply with the

requirements of Rule 8.05. During a May 13, 2008, motions hearing, the trial judge stated:

       Let the record show that on August 9, ‘07, the defendant was present in court
       and stated he would represent himself; that on February 26, 2008, the Court
       advised him he needed to hire an attorney, and he was to let the Court know
       upon hiring an attorney.

       On March 6th, ‘08, he was to hire an attorney or represent himself, which he
       chose.10 The case was at that time set for May 29. The case is set for that
       time.11 The Court assumes Mr. Patton has chosen to represent himself.

After ruling on the motions, the trial judge stated:

       THE COURT: So I believe that tends to the motions. Now, I would like to
       ask you, the case is set in August, as you know. The Court is [sic] advised you
       that with this charge pending, the Court believes that it would be in your best
       interest to employ an attorney.

       ...

       THE COURT: Now, again, as I was going to do and attempt to do, is, of
       course, to give you my advice to hire an attorney, which I've been doing for the
       period of time. For reasons I don't know and may not be entitled to know, you
       intend to represent yourself; is that correct?

       DEFENDANT PATTON: Well, I’m in consulting.



       10
          From these brief references, it appears that the trial court and Patton may have previously
discussed Patton’s desire to represent himself. However, the record includes no transcript, or any
other evidence, of the content of any such discussions.
       11
            The trial judge later corrected himself and stated that the trial date was August 28.

                                                   7
       THE COURT: Okay. Let me put it this way, Mr. Patton: You know when
       your trial date is, you know when the next docket call is. Whether you choose
       to hire an attorney or not, of course, that’s your decision. This Court is
       satisfied you’ve been able to do so. So you be ready to go to trial, with or
       without an attorney, on the day it’s set.

¶14.   Although the trial judge did warn Patton that he had better “be ready to go to trial,

with or without an attorney,” he provided none of the warnings required by Rule 8.05.

Nothing was said about Patton waiving his Sixth Amendment right to assistance of counsel.

And Patton’s only statement in the entire transcript regarding a waiver of his right to counsel

was: “Well, I’m in consulting.” While this cryptic pronouncement, together with Patton’s

actions, may amount to an implied waiver of counsel, it hardly qualifies as one which was

knowingly and intelligently made.

¶15.   Faced with the trial court’s failure to comply with the requirements of Rule 8.05, and

finding no evidence in the record that Patton was warned of the dangers and disadvantages

of self-representation, we cannot conclude that Patton knowingly and intelligently waived

his Sixth Amendment right to assistance of counsel.

                                             IV.

¶16.   In its brief to this Court, the State includes the following heading for Issue II:

“Defendant Chose to Represent Himself and Was Aware of the Perils.” Following this

heading, however, the State says nothing about the “perils.” The State does not even attempt

to proffer an argument that Patton was warned, or actually knew, of the “dangers and

disadvantages of self-representation” mentioned in Faretta. The only case cited by the State

is Jackson v. State, 1 So. 3d 921 (Miss. Ct. App. 2008), wherein the Court of Appeals




                                              8
correctly held that “a waiver of the right to assistance of counsel . . . must be made with a full

understanding of its disadvantages and consequences.” Id. at 924-25.

¶17.   Rule 8.05 was designed, in part, to provide trial judges a method of making sure

criminal defendants’ waivers of counsel are knowing and intelligent. However, this case is

less about a Rule 8.05 violation than about the trial court’s failure to obtain a knowing and

intelligent waiver of the right to counsel, as guaranteed by the Sixth Amendment. We cannot

overlook the trial court’s failure to do so, and we cannot find that failure was harmless error.

While we agree that some constitutional violations are subject to harmless-error analysis,

violations of rights essential to a fair trial (structural violations) clearly are not, nor should

they be.

¶18.   Simple logic requires us to conclude that when something essential to a fair trial did

not happen, the trial was not fair. Were we to conclude otherwise, then the thing missing was

not actually essential. The vast and consistent caselaw on this point clearly establishes that

compliance with the Sixth Amendment is essential to a fair trial, and that a trial court’s

failure to make sure a Sixth Amendment waiver is knowing and intelligent is per se

reversible error, and not subject to a harmless-error analysis.

¶19.   In Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S. Ct. 2078, 124 L. Ed. 2d 182, the

Supreme Court held that a Sixth Amendment violation “unquestionably qualifies as

‘structural error.’” In Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113

L. Ed. 2d 302, the Court held that a Sixth Amendment violation “def[ies] analysis by

‘harmless error’ standards” because it “affec[ts] the framework within which the trial




                                                9
proceeds” and is not “simply an error in the trial process itself.”12 And this Court has held

that “[t]he right of one charged with crime to counsel may not be deemed fundamental and

essential to fair trials in some countries, but it is in ours.” Conn, 170 So. 2d at 23.

¶20.   The hallmark Sixth Amendment case is Gideon v. Wainwright, 372 U.S. 335, 83 S.

Ct. 792, 9 L. Ed. 2d 799 (1963), wherein Clarence Earl Gideon defended himself on a charge

of robbing a pool hall. After overwhelming evidence of guilt was produced in his first trial,13

Gideon was convicted. The United States Supreme Court reversed, holding that the Sixth

Amendment right to counsel was a fundamental right that is “essential to a fair trial.”

Gideon, 372 U.S. at 342.14

                                                 V.


       12
           See also United States v. Gonzalez-Lopez, 548 U.S. 140, 149-50, 126 S. Ct. 2557, 2566,
165 L. Ed. 2d 409 (2006); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461
(1938); United States v. Chamberlain, 326 Fed. Appx. 640, 642 (3d Cir. 2009) (Faretta-type error
is structural, and requires automatic reversal); United States v. Forrester, 512 F.3d 500, 506-09 (9th
Cir. 2008) (harmless error analysis does not apply in context of Sixth Amendment violation); King
v. Bobby, 433 F.3d 483, 490 (6th Cir. 2006); United States v. Jones, 452 F.3d 223, 230 (3d Cir.
2006) (“When a waiver is deemed ineffective — i.e., not knowing, intelligent, and voluntary —
there is no harmless error review, and the conviction must be vacated and the case remanded for a
new trial.”); United States v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005); United States v. Erskine,
355 F.3d 1161, 1167 (9th Cir. 2004) (“On appeal, the burden of establishing the legality of the
waiver is on the government.”); United States v. Arlt, 41 F.3d 516, 520-21 (9th Cir. 1994) (“courts
indulge in every reasonable presumption against waiver”) (quoting Brewer v. Williams, 430 U.S.
387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)); United States v. Mohawk, 20 F.3d 1480, 1484
(9th Cir. 1994) (government’s burden is “a heavy one”).

       13
          An eyewitness testified he saw Gideon rob the coin machines in a pool hall and leave in
a cab. A police officer testified he found Gideon shortly after the robbery with a large number of
coins in his pocket.
       14
          In his second trial, with the assistance of counsel, Gideon was found not guilty. His
counsel produced substantial evidence that the “eyewitness” from the first trial was probably the
look-out for the actual perpetrator of the crime, and that the coins found in Gideon’s pocket were
from a poker game.

                                                 10
¶21.   The State argues that “the trial court, gently, made sure that defendant was not

prejudiced by his unfamiliarity with the rules and the law.” This statement is not only

unsupported by the record, but is in stark contrast to the following:

       (1) On the second page of the transcript is found a discussion of Patton’s pretrial

motions. The trial judge states:

       There are motions pending before the Court. The first is a motion to sever
       charges or defendants. Let the record show that in this cause, there’s only one
       defendant, so I don’t know who the movant intends to sever. There’s only one
       charge, so I don’t know what charges the defendant intends to sever.

One has difficulty concluding that a defendant who filed a motion to “sever charges or

defendants” in a single-charge, single-defendant case, “knew exactly what he is doing.”

       (2) The following exchange involving the Patton, the trial judge, and Assistant

District Attorney Sweatt took place after the State rested its case-in-chief:

       THE COURT (to Patton): Who do you call as the first witness?

       PATTON: Detective Albert Preston.

       THE COURT: I believe he needs to be sworn; is that correct?

       MR. SWEATT: May we approach the bench, Your Honor?

       THE COURT: Yes.

       MR. SWEATT: We subpoenaed him and I didn’t need him. I think he’s going
       to be available, but we’ve got to call him and get him up here.

       THE COURT: You subpoenaed him?

       MR. SWEATT: Yes.

       THE COURT: Did you put him on your witness list?

       MR. PATTON: I believe I did, sir.


                                             11
       THE COURT: You didn’t subpoena him?

       MR. PATTON: But I assumed from Mr. Sweatt he had been called. That’s the
       reason I did not.

       MR. SWEATT: Well —

       THE COURT: How long will it take to get him up here?

       MR. SWEATT: It won’t take long if he’s on duty. I’ll ask Jeff to call.

       THE COURT: What is the purpose? Is he the one that made the complaint?

       MR. PATTON: Yes, sir. Basically he initiated the complaint. I was
       wondering if before the charges asking him, you know, telling him conditions
       of the charge.

       THE COURT: But it doesn’t matter, you didn’t file a motion to suppress.
       That’s irrelevant. Who do you call as your next witness?

       MR. PATTON: I can’t get him?

       THE COURT: No. That’s irrelevant on the charge part.

Patton was not allowed to question Detective Preston.

       (3) As far as can be told by review of the record, Patton was never arraigned, and

never waived arraignment. Instead, a curious proceeding took place on the morning of trial,

at the trial judge’s bench, rather than in open court. Although the record includes no

transcript of what was actually said, the court reporter made the following notation in the trial

transcript:

           (AT THE BENCH, OUTSIDE THE HEARING OF THE JURY, THE
       DEFENDANT WAIVED THE FORMAL READING OF THE
       ARRAIGNMENT 15 AND ENTERED A PLEA OF NOT GUILTY TO THE
       CHARGE OF FALSE PRETENSE.)



       15
            We presume the court reporter meant “indictment” rather than “arraignment.”

                                                12
Although this procedure raises many questions, we shall say no more than to point out that

trial judges are required to conduct arraignments in open court,16 and an unrecorded bench

conference, held outside the hearing of the jury (and presumably the spectators), does not

qualify as “open court.”

       (4) The following took place during Patton’s cross-examination of one of the State’s

witnesses:

       BY MR. PATTON: Well, have you ever been convicted of a crime?

       A. Is that relevant?

       Q. It goes to honesty.

       THE COURT: If you want to frame the question properly, I’ll admit it. But
       that’s not a proper form of the question.

       BY MR. PATTON: Have you ever been convicted of a crime, I mean?

       THE COURT: There are all kinds of crimes. Some go to truth and veracity,
       others don’t.

       BY MR. PATTON: Have you ever been married prior to being married now?

The trial court’s interjection amounted to an objection on behalf of the State (the prosecutor

never said a word concerning Patton’s question). Furthermore, the trial court’s implication

– that unless the conviction related to “truth and veracity” it was inadmissible – was patently

incorrect.17 And while it is certainly within a trial judge’s discretion to sua sponte comment




       16
            URCCC 8.01.
       17
         See Mississippi Rules of Evidence 609(a)(1), which requires no evidence that the crime
involved truth or veracity.

                                              13
on an objectionable question, we find it rarely happens where defendants are represented by

counsel.

¶22.   As this Court stated in Conn, “[e]ven the intelligent and educated layman has small

and sometimes no skill in the science of law.” Conn, 170 So. 2d at 23 (citing Powell v.

Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 64, 77 L. Ed. 158 (1932)).

                                      CONCLUSION

¶23.   We must reverse Patton’s conviction because nothing in the record supports the

State’s contention that he knowingly and intelligently waived his Sixth Amendment right to

counsel, and because the trial court failed to follow the mandatory requirements of Rule 8.05.

Were our decision today different, the ramifications would extend far beyond this case. Our

trial judges and lawyers would be left to wonder whether Rule 8.05, or any other rule, means

what it says. It is no small concern to us that our rules and statutes are replete with

provisions of what “shall” and “shall not” be done. Were we to hold otherwise, the bench

and bar would surely wonder what definition de jour this Court might apply to “shall” in

future cases.

¶24.   In Box v. State, 437 So. 2d 19 (Miss. 1983), this Court — finding the prosecutor had

violated Rule 4.06 18 — reversed a conviction for armed robbery, stating: “A rule which is not

enforced is no rule.” Id. at 21-22. And more recently in Sanders v. State, 9 So. 3d 1132

(Miss. 2009), we reversed a conviction because the trial court failed to conduct an on-the-

record mental competency hearing, as required by Rule 9.06.19 Id. at 1136-39.


       18
            URCCC 4.06.
       19
            URCCC 9.06.

                                             14
¶25.   This Court’s constitutional power to promulgate judicial rules is no small thing. It is

an awesome responsibility, but no less so than our duty to enforce those rules fairly, evenly,

and predictably. The bench and bar are entitled to rely on this Court to apply the rules no

less diligently to the courts than to the lawyers and litigants. And when a rule that we

promulgated says a trial court “shall” do a thing, justice and fairness demand that, absent

extremely unusual circumstances, we either require trial courts to do it, or change the rule.

¶26.   Many of our lawyers, I expect, have at one time or another experienced wrath from

the bench over their (or their clients’) failure to comply with the rules. Were we in this case

to excuse the trial judge’s failure to comply with Rule 8.05's mandatory requirements, we

would risk substantially — and understandably — compromising the judiciary’s credibility

in the eyes of those lawyers and others. For this reason, and because we find Patton did not

knowingly and intelligently waive his Sixth Amendment right to assistance of counsel, we

reverse and remanded to the trial court for action consistent with this opinion.

¶27.   REVERSED AND REMANDED.

     WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT
ONLY. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY DICKINSON, J.; GRAVES, P.J., JOINS IN PART.

       KITCHENS, JUSTICE, SPECIALLY CONCURRING:

¶28.   I agree with the majority that Patton’s conviction should be reversed based on the trial

judge’s failure to ensure that Patton knowingly and intelligently waived his right to counsel.

Although that issue is dispositive, I write separately to discuss the woefully inadequate

indictment.



                                              15
¶29.   Our state and federal constitutions guarantee criminal defendants the specific right “to

be informed of the nature and cause of the accusation.” U.S. Const. amend. VI; Miss. Const.

art. 3, § 26. An indictment also must contain “sufficient facts to enable [the defendant] to

plead double jeopardy in the event of a future prosecution for the same offense.” Berry v.

State, 996 So. 2d 782, 786 (Miss. 2008) (quoting Gilmer v. State, 955 So. 2d 829, 836-37

(Miss. 2007)). See U.S. Const. amend. V (“nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb”); Miss. Const. art. 3, § 22 (“[n]o person’s

life or liberty shall be twice placed in jeopardy for the same offense”). To safeguard these

constitutional rights, this Court has declared that “[t]he indictment upon which the defendant

is to be tried shall be a plain, concise, and definite written statement of the essential facts

constituting the offense charged and shall fully notify the defendant of the nature and cause

of the accusation against him.” Nguyen v. State, 761 So. 2d 873, 874 (Miss. 2000). See also

URCCC 7.06 (using identical language).

¶30.   The crime of false pretense is codified at Mississippi Code Section 97-19-39. The

statute provides for a misdemeanor and a felony. Miss. Code Ann. § 97-19-39 (Rev. 2006).

Liability for the felony depends upon whether the value of the thing(s) obtained by false

pretense is more than five hundred dollars. Miss. Code Ann. § 97-19-39(2) (Rev. 2006).

Patton was convicted of the felony under Section 97-19-39(2), which provides:

       Every person, who with intent to cheat or defraud another, shall designedly,
       by color of any false token or writing, or by another false pretense, obtain the
       signature of any person to any written instrument, or obtain from any person
       any money, personal property, or valuable thing, with a value of Five Hundred
       Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony
       and punished by imprisonment in the State Penitentiary not exceeding ten (10)
       years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

                                              16
Miss. Code Ann. § 97-19-39(2) (Rev. 2006).20

¶31.   The indictment charged Patton with the following:

       [O]n or about the 22nd day of July, A.D., 2005[,] EDGAR PATTON did
       intentionally, willfully, designedly with intent to cheat and defraud Priscilla
       Watts Newsom and Isadore Newsom by selling to Priscilla Watts Newsom and
       Isadore Newsom a 1981 Crimson 14 x 65 trailer bearing serial number
       ALW12614777 that the defendant did not own and the defendant Edgar Patton
       did obtain money on the said trailer, contrary to and in violation of Section 97-
       19-39 of the Mississippi Code of 1972, as amended, against the peace and
       dignity of the State of Mississippi.

¶32.   Patton argues on appeal that the indictment was defective because it failed to notify

him whether the crime charged was a felony or a misdemeanor. The State argues that the

indictment is saved by its citation to the false pretense statute, but the citation does not

specify the subsection pertaining to felonies. Yet, even if the prosecutor had included the

proper subsection in the charging document, this would not have saved the indictment;

statutory citations constitute mere surplusage and will not cure a fatally defective indictment.

Cowan v. State, 399 So. 2d 1346, 1351 (Miss. 1981).

¶33.   Clearly, the indictment is defective for failing to notify Patton that he was charged

with a felony. The indictment neither uses the essential adverb feloniously nor does it allege

that the value of the property involved was $500 or more. This Court has held that the value

of a stolen item is an essential element of grand larceny, and the State’s failure to prove the



       20
        Before the 2003 amendment, Mississippi Code Section 97-19-39 did not explicitly
distinguish between felony and misdemeanor false pretense offenses, although the statute did
prescribe two sets of sentencing options, one of which, in practice, was applied to
misdemeanors, and the other to felonies, depending on the way the offense was pled in the
charging document. Even if a felony were pled, the trial court, quite properly, would
sentence a convicted person as a misdemeanant if the value proven did not meet the threshold
prescribed for felonies. See Miss. Code Ann. § 99-19-17 (Repealed 2003).

                                              17
value warranted resentencing for petit larceny. Henley v. State, 729 So. 2d 232, 238 (Miss.

1998). Although Patton’s case involves false pretense and not grand larceny, there is no

meaningful distinction for purposes of this analysis. Because the false pretense statute

provides different levels of punishment depending on the value of the property obtained by

means of the false representation, value is an essential element of the crime of felonious false

pretense. Numerous Mississippi cases have held that the failure to include an essential

element of the crime in the indictment is a jurisdictional defect that cannot be cured with

extrinsic proof. See Banana v. State, 635 So. 2d 851, 853 (Miss. 1994); Copeland v. State,

423 So. 2d 1333, 1336 (Miss. 1982) (citing Brewer v. State, 351 So. 2d 535 (Miss. 1977)).

Thus, the indictment’s failure to charge an essential element of the crime, value, violates

fundamental federal and state constitutional rights and requires automatic reversal.

¶34.   However, the indictment’s defects surpass the failure to charge the degree of the

crime. “The gravamen of the offense of false pretenses is a false representation of a past or

existing fact, made by [the] accused with knowledge of its falsity and with intent to deceive,

a reliance thereon, and the obtaining of something of value thereby without compensation.”

Young v. State, 209 So. 2d 189, 189 (Miss. 1968) (citing 35 C.J.S. False Pretenses § 6

(1960)). “Furthermore, the property or money obtained under false pretenses must have been

‘to the detriment or injury of the person from whom he obtains the same.’” Allred v. State,

605 So. 2d 758, 761 (Miss. 1992) (quoting Carter v. State, 386 So. 2d 1102, 1105 (Miss.

1980)). Thus, “[o]rdinarily, an indictment for obtaining property by false pretenses must

allege to whom the property obtained belonged.” Young, 209 So. 2d at 189-90 (citing 35

C.J.S. False Pretenses § 44b (1960)). The indictment in the instant case fails on almost all

                                              18
levels, for it does not allege that Patton made a representation that he knew to be false, that

the Newsoms relied on this misrepresentation to their detriment, or that the money which

Patton obtained belonged to the Newsoms.

¶35.   Patton, acting pro se, filed a pretrial motion to have the indictment dismissed. The

motion alleged that the indictment failed to inform Patton of the charge against him, but it

did not expound on that assertion. Instead, Patton rambled irrelevantly about freedom of

speech and the freedom to contract and whether the trailer was a “Crimson” or a “Redman.”

He never argued that the indictment failed to allege a felony, and the first time he raised this

crucial issue was on appeal, and then only in his reply brief.

¶36.   Patton clearly was not capable of providing himself effective representation. An

indictment is a technical document of critical importance and must be very fact intensive to

charge felony false pretense properly. In this case, a trained legal eye would have spotted

the indictment’s numerous deficiencies and a competent criminal lawyer would have pled

and argued a demurrer. That Patton did not have the benefit of competent counsel, who

could have made and argued a proper challenge to the indictment, highlights the importance

of the trial judge’s ensuring that Patton knowingly and intelligently waived his right to

counsel. It is clear that Patton did not understand what was at stake or the high level of

technical skill and knowledge essential for a proper defense. Equally clear is that the learned

trial judge fell far short of adequately apprising him in these regards. Thus, it cannot be said

that this defendant’s waiver of his right to counsel was knowingly and intelligently made.

Perhaps on remand, with the defendant’s being represented by counsel, the indictment will

be properly addressed.


                                              19
¶37.   Suffice to say that even a member of the Bar not well versed in criminal law and

procedure would not be in a significantly better position than Patton was to defend himself

or herself on such a charge in a competent manner. Under established Mississippi law and

practice, a false pretense indictment is a more complex pleading than a non-capital murder

indictment. A properly drafted false pretense indictment is replete with essential legalese,

long required by this Court, that would be unfamiliar to most attorneys, even law professors,

other than those with significant experience as prosecutors, criminal defense attorneys or

judges in Mississippi’s criminal courts. Of course, the ability to identify and respond to a

defective indictment, such as the one in this case, is but one qualification necessary to the

effective defense of a felony prosecution. The record provides no indication that Patton was

qualified in any respect to defend himself, or that he even began to understand what would

be involved in such an undertaking.

¶38.   No matter what kind of criminal charge had been alleged against Patton, or any other

person similarly situated in our court system, it would have been the duty of the trial judge

to spend some time apprising the lawyerless litigant of the perilous path of pro se

representation. At a minimum, the judge in this case should have questioned Patton, on the

record, in accordance with the simple recipe provided in Rule 8.05. The judge had before

him the indictment, which, as an experienced and learned jurist, he immediately would have

recognized as being deficient. This alone should have heightened his concern that Patton

understand the quite predictable folly of proceeding, in a case in which Mississippi has

historically required the charge to be pled with a higher-than-usual level of technical

specificity, without competent professional assistance. Yet, as aptly noted by the majority,


                                             20
the judge did not do even the minimum required by Rule 8.05. Moreover, as also observed

by today’s opinion, Patton never clearly waived his right to counsel.

¶39.   On remand, perhaps the State and the trial court will note that, if the present

indictment is allowed to stand, and if Patton should be convicted under it again, our case law

mandates that he be punished as if he were convicted of a misdemeanor. This Court has held

that “if the indictment is ambiguous as to which statute applies, the defendant may only be

punished under the statute with the lesser penalty.” Jenkins v. State, 888 So. 2d 1171, 1174

(Miss. 2004) (Weaver v. State, 497 So. 2d 1089, 1092 (Miss.1986)). The indictment is

ambiguous as to whether subsection (1) or subsection (2) of the false pretense statute applies.

Accordingly, the trial court on remand must address whether Patton can be sentenced to any

more than six months’ imprisonment in the county jail and to a fine no greater than $1,000.

Miss Code Ann. § 97-19-39(1) (Rev. 2006).

¶40.   In sum, without competent legal assistance, Patton was ill-equipped to defend himself,

and I agree with the majority that the case should be reversed based on the trial court’s failure

to ensure that Patton knowingly and intelligently waived his right to counsel. However, the

numerous defects in the indictment also require careful review and appropriate action by the

State, the trial court, and Patton’s counsel.

     DICKINSON, J., JOINS THIS OPINION.                      GRAVES, P.J., JOINS THIS
OPINION IN PART.




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