               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 139

                                                          OCTOBER TERM, A.D. 2014

                                                                  November 5, 2014

KIM REIFER,

Appellant
(Defendant),

v.                                                   S-14-0077

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                   Appeal from the District Court of Big Horn County
                        The Honorable Robert E. Skar, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Mackenzie
      Williams, Senior Assistant Attorney General


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Kim Reifer challenges the revocation of his probation on constitutional
grounds. He contends that the district court failed to properly advise him about the
dangers of representing himself in the revocation proceedings, and that without the
required warnings, his decision to forego counsel could not have been knowing and
intelligent. We affirm.

                                          ISSUE

[¶2] The issue for our determination is whether Appellant validly waived his Sixth
Amendment right to counsel.

                                          FACTS

[¶3] Appellant was initially charged with one count of first degree sexual abuse of a
minor, and one count of second degree sexual abuse for another incident involving the
same minor. The first degree count carried a penalty of twenty-five to fifty years in
prison, and the second degree count carried a maximum penalty of twenty years in prison.
Wyo. Stat. Ann. §§ 6-2-314(a)(i), (c) and 6-2-315(a)(ii), (b) (LexisNexis 2013). The
State also alleged that Appellant had a prior conviction for child sexual abuse, and that he
could be sentenced to life in prison without the possibility of parole if convicted of either
charge. Wyo. Stat. Ann. § 6-2-306(d) (LexisNexis 2013).

[¶4] Appellant was appointed counsel and pled not guilty in district court after the
circuit court found probable cause to support the charges and bound him over. Following
a change of counsel, Appellant pled guilty pursuant to a plea agreement to two
misdemeanor counts of sexual battery under Wyo. Stat. Ann. § 6-2-313 (LexisNexis
2013). The district court sentenced him to the maximum penalty of two consecutive one-
year terms of incarceration in the county detention center pursuant to the agreement. He
was given credit for 442 days of time served pending trial, and the remaining 288 days of
his sentence was suspended in favor of probation. The district court explained the terms
of probation to Appellant and answered his questions about them. Appellant’s public
defender then withdrew because the case had concluded.

[¶5] Roughly four months later, the State filed a petition to revoke Appellant’s
probation for an alleged failure to obtain a sex offender evaluation as required by one of
the terms of his probation. Before his initial appearance, Appellant wrote to the judge,
stating that “I do not want a public defender representing [me in] this case. I am
representing myself.” He wrote a second letter the next day, again saying that “I am
representing my self [sic] in the case . . . .”




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[¶6] At his initial appearance on this petition, the district court advised Appellant of his
right to counsel, including the right to a public defender if he could not afford counsel.
Following a discussion of his constitutional rights, Appellant was asked by the district
court if he wanted the court to appoint him an attorney, to which he replied, “No. If I do
[want to] be represented by an attorney, I’ll furnish one myself.” Appellant then denied
the allegations of the petition.

[¶7] Sometime in the next month, the State filed a motion to dismiss the petition
without prejudice, which the district court granted. The State cited the potential of
additional criminal charges and a desire to resolve those issues as its reason for seeking
dismissal.

[¶8] A week and a half later, the State filed a second petition to revoke Appellant’s
probation, alleging that he had violated additional terms of his probation. It claimed that
he had failed to pay fines, that he had gone out of state without permission, and that he
had at times been around children. At his initial appearance, the district court again
advised Appellant of his right to counsel, including the right to a public defender, and
Appellant acknowledged that he understood that right.

[¶9] Later on in this proceeding, Appellant unequivocally reaffirmed that “I’m not
hiring an attorney.” He then denied the allegations levied against him. He also pointed
out that his initial appearance was not held within fifteen days of the date the second
petition was filed, as required by W.R.Cr.P. 39(a)(4)(B)(i). He and the district court
discussed the issue at length, with the judge going into some detail about it because
Appellant was “not represented.”

[¶10] Subsequently, at an evidentiary hearing to determine the truth or falsity of the
allegations in the revocation petition, Appellant made an oral motion to dismiss it
because the time that had passed between his arrest on the second petition and his initial
appearance exceeded the fifteen-day limit contained in W.R.Cr.P. 39(a)(4)(B)(i). The
district court agreed and dismissed the petition without prejudice.

[¶11] On the same day, the State filed a third petition to revoke. With the parties’
consent, the district court held an initial appearance and evidentiary hearing later that
day. The judge again told Appellant that he had a right to a lawyer, and then asked if he
wanted “to be represented by a lawyer,” to which Appellant replied, “No, I would
represent myself.” The judge then explained the allegations of the petition, as well as the
consequence if they were proven, which was that Appellant could be confined in the
county jail for the remaining 288 days of his sentence. The judge also confirmed that
Appellant understood what he had been told.

[¶12] Both sides presented evidence at the hearing. Appellant cross-examined the
State’s sole witness, a probation agent, and he also testified on his own behalf. The


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district court found that Appellant had violated his probation, and it imposed the 288-day
jail sentence which had previously been suspended.

[¶13] Appellant timely perfected this appeal, and counsel was appointed to represent
him before this Court in forma pauperis.

                                  STANDARD OF REVIEW

[¶14] The right of self-representation, like the right to counsel, is protected by the Sixth
Amendment to the United States Constitution. Large v. State, 2011 WY 159, ¶ 32, 265
P.3d 243, 251 (Wyo. 2011). Whether a constitutional right has been violated involves a
question of law, which this Court reviews de novo. Id., ¶ 31, 265 P.3d at 251.

                                          DISCUSSION

[¶15] The Sixth Amendment guarantees the right to counsel at all critical stages of the
prosecution, including probation revocation proceedings. Pearl v. State, 996 P.2d 688,
692 (Wyo. 2000).1 However, a criminal defendant may waive his right to the assistance
of counsel and represent himself, so long as he does so voluntarily, knowingly and
intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d
562 (1975); Scott v. State, 2012 WY 86, ¶ 11, 278 P.3d 747, 750 (Wyo. 2012); Wyo. Stat.
Ann. § 7-6-107 (LexisNexis 2013).

[¶16] Before a defendant is allowed to proceed without counsel, he must 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, 95 S.Ct. at 2541 (internal quotation marks omitted). Ideally, the
district court should conduct a “thorough and comprehensive formal inquiry of the
defendant on the record to demonstrate that the defendant is aware of the nature of the
charges, the range of allowable punishments and possible defenses, and is fully informed
of the risks of proceeding pro se.” Derrera, ¶ 18, 327 P.3d at 112 (internal quotation
marks omitted); Large, ¶ 32, 265 P.3d at 251 (“It is the district court’s responsibility to
inquire into the defendant’s understanding of the charges against him, the allowable
punishments, possible defenses, and the risks of proceeding pro se.”).

[¶17] In deciding whether the right to counsel has been waived, we indulge every
reasonable presumption against waiver. Craft v. State, 2011 WY 142, ¶ 11, 262 P.3d
1253, 1256 (Wyo. 2011). However, this Court considers the record as a whole when
determining whether the defendant knowingly and voluntarily relinquished his right to
1
  “[T]he United States Supreme Court held that the Fourteenth Amendment incorporates the Sixth
Amendment right to counsel, and accordingly requires states to make appointed counsel available to
indigent defendants in all ‘criminal prosecutions.’” Derrera v. State, 2014 WY 77, ¶ 16, 327 P.3d 107,
111 (Wyo. 2014).


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representation. Large, ¶ 31, 265 P.3d at 251. A judge’s failure to inquire “into the
defendant’s understanding does not require reversal when the surrounding facts and
circumstances, including the defendant’s background and conduct, demonstrate that the
defendant actually understood his right to counsel and the difficulties of pro se
representation and knowingly and intelligently waived his right to counsel.” Id., ¶ 32, 265
P.3d at 251 (quoting Van Riper v. State, 882 P.2d 230, 234 (Wyo. 1994)) (internal
quotation marks omitted). “A defendant need not himself have the skill and experience
of a lawyer in order competently and intelligently to choose self-representation.” Id.

[¶18] Appellant argues that the district court violated his Sixth Amendment right to
counsel by not informing him of the risks of representing himself. He acknowledges that
he was aware of his right to counsel. However, he contends the record does not reflect
that he understood the magnitude of his undertaking or the risks inherent in proceeding
pro se.

[¶19] While a thorough and comprehensive formal inquiry on the record is ideal, there
are no rigid formal requirements that a judge must follow. Rather, the inquiry must be
sufficient to assure that a defendant understands the dangers involved in self-
representation. Large, ¶ 32, 265 P.3d at 251.

[¶20] The district court informed Appellant of his right to counsel. It also explained the
allegations of the petition and the possible punishment if the State met its burden of
proof. However, the exchange between the court and Appellant did not create a record
that, standing alone, satisfied Faretta and our decisions implementing it. As we have
explained above, “it is the district court’s responsibility to inquire into . . . the risks of
proceeding pro se.” Large, ¶ 32, 265 P.3d at 251. That simply did not happen here. The
judge should have explicitly cautioned Appellant of the dangers associated with self-
representation in some fashion. The court’s failure to provide an adequate advisement
weighs against finding a knowing and intelligent waiver.2


2
 We understand the difficulty of applying Faretta. After ascertaining a defendant’s education level and
his experience in the criminal justice system, district and circuit judges might consider advising a
defendant of the following general risks when he seeks to represent himself. There are undoubtedly
others that experienced trial judges would add.

       Attorneys receive specialized training and gain experience in defending criminal cases, which the
        defendant will not have.
       The outcome of trials often depends on the tactics used. A defendant is unlikely to have the
        experience and judgment necessary to make sound tactical decisions without legal training or trial
        experience.
       The defendant may not understand the rules of evidence or procedure well enough to protect his
        interests. Knowledge of these rules is important to preserving a record for appeal regardless of
        the outcome of a proceeding.
       A self-represented defendant may not be aware of defenses he may be entitled to assert.


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[¶21] However, the district court’s failure to provide the required advisements and
develop a record demonstrating that Appellant understood the risks of self-representation
does not require reversal in this case. The decisive question is not only what was
discussed, but whether Appellant in fact made a knowing and informed waiver of
counsel. Van Riper, 882 P.2d at 234.

[¶22] Appellant’s criminal history tends to show that he was familiar with the legal
system and the value of counsel. Years ago, Appellant was convicted of sexual assault in
Nebraska, and he has been a registered sex offender since. Throughout the underlying
proceedings in this case, he had the opportunity on several occasions to be represented by
appointed counsel. We are convinced that his familiarity with criminal proceedings
provided him an understanding that the pendency of a probation revocation petition could
result in incarceration, and the risk he took in representing himself. See Van Riper, 882
P.2d at 234-35. This evidence as a whole establishes that Appellant understood the
dangers and that he did not believe he was at a disadvantage by representing himself.
Large, ¶ 31, 265 P.3d at 251.

[¶23] The context of Appellant’s decision to proceed pro se also lends support to the
conclusion that he knowingly and intelligently waived his right to counsel. A waiver can
be valid if the defendant gave it for strategic reasons or after repeatedly rejecting the
assistance of counsel. Craft, ¶ 16, 262 P.3d at 1258; Trujillo v. State, 2 P.3d 567, 573-
575 (Wyo. 2000); Van Riper, 882 P.2d at 234-35. While felony charges in this case were
pending against him, Appellant was represented by an attorney who was able to negotiate
a plea agreement reducing two significant felony charges which could have sent him to
prison for life with no possibility of parole down to two high misdemeanors. After that,
he repeatedly rejected representation in probation revocation proceedings, where his
exposure was limited to 288 days—less than a year—in the county jail.



      Skilled cross-examination of defense witnesses may be critical to a defense, and attorneys are
       trained to conduct cross-examination.
      The defendant, particularly one on confinement, may be unaware of changes in case law or
       statutes which might bear on innocence or guilt.
      It is awkward for a defendant to testify without an attorney to examine him.
      A defendant may not fully understand the risks and benefits of waiving his Fifth Amendment
       right not to testify, and it is possible that he may provide evidence of guilt which will tip the
       balance in a close case.
      In a jury trial, it will undoubtedly be difficult for a defendant without legal training to prepare and
       offer jury instructions, and to adequately preserve claimed errors of law.
      It is difficult for one who faces criminal penalties to have the objectivity required to make good
       tactical choices.
      The court is not allowed to provide the defendant legal or other advice as to how to defend a case,
       any more than it would offer that advice to an attorney.


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[¶24] Throughout the revocation process, the district judge repeatedly advised Appellant
of his right to counsel and offered to appoint a public defender to represent him, but he
adamantly and persistently declined the invitation. He asked good questions about his
rights and obligations, and he successfully argued motions for bond reduction and
dismissal of a petition to revoke. The district judge was in a good position to evaluate
Appellant’s motives, his understanding of the judicial system, and his ability to represent
himself because he saw and spoke with him at length at his various appearances,
including the evidentiary hearing.

[¶25] After examining the record as a whole, we conclude that although the advisements
given by the district court did not satisfy Faretta and its progeny, Appellant’s waiver of
his right to counsel was knowing and intelligent.

[¶26] Affirmed.




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