Friday, August 11, 2006

Counsel Waiver in Revocation Proceeding Must be Knowing and Voluntary

United States v. Hodges, No. 05-60138 (5th Cir. Aug. 11, 2006)

Hodges addresses an issue of first impression in this circuit, namely "what requirements must be satisfied for a person on supervised release to waive his right to counsel in a revocation proceeding under Federal Rule of Criminal Procedure 32.1(b)(2)." Slip op. at 1.

Hodges was on supervised release following imprisonment for a false statements conviction. The probation officer filed a petition to revoke Hodges' supervised release, alleging that Hodges had been stalking a woman.

Just before the beginning of the revocation hearing Hodges' appointed counsel informed the district court of Hodges' desire to proceed pro se. The court engaged Hodges in a brief colloquy, explaining to Hodges that he had the rights to disclosure of the evidence against him, to an attorney, to cross-examine witnesses, and to present evidence of his own. The court also told Hodges that his appointed counsel would probably do a better job of representing him than he could himself. Hodges explained that he "would rather just take it to my own hands and have the blame for myself." Slip op. at 4. The court allowed Hodges to represent himself, and also allowed his former counsel to remain at the counsel table in case Hodges wished to consult him during the proceedings.

The court wound up revoking Hodges' release and sentencing him to 12 months' imprisonment and an additional 24 months of supervised release.

Hodges appealed his revocation "on the sole basis that the waiver of his right to counsel was invalid due to the failure of the district court to warn him of the pitfalls of self-representation and the benefits of counsel." Slip op. at 5. The court of appeals rejected this argument, holding that less is required for a valid counsel waiver at a revocation hearing than at a criminal trial.

Reasoning that because the right to represent oneself at a revocation hearing arises from Rule 32.1, rather than the Sixth Amendment, the court held that a waiver of counsel in that setting need only be "knowing and voluntary" and that its validity will be assessed in light of the totality of circumstances.

Although a thorough colloquy with the district court may be the most precise means of evaluating the voluntariness of a waiver, the failure of the district court to engage in a comprehensive colloquy is not, of itself, fatal to the defendant’s waiver. We thus hold that the waiver of a defendant’s Rule 32.1(b) rights is knowing and voluntary (1) where there is a sufficient colloquy by the district court to assure an understanding or freely made waiver; or (2) where the colloquy leaves some uncertainty, the totality of the circumstances assures that the waiver is knowing and voluntary.

Slip op. at 11. The court went on to hold that although the colloquy itself did not establish that Hodges' counsel waiver was knowing and voluntary, the totality of circumstances did: (1) Hodges was aware of the charges against him and the potential penalty; (2) both his appointed counsel and the court advised Hodges that self-representation was a bad idea; (3) Hodges was familiar with the criminal justice system, and the court explained the rights he would have at the hearing; (4) Hodges consulted with his former counsel during the hearing; and (5) there was "no evidence or indicia of coercion, gamesmanship, or improper forces at play in Hodges's decision to represent himself." Slip op. at 12-14.


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