Sword for the Pro Se Defendants: Arguello Advisement Could Get You a New Trial

Many pro se defendants (proceeding without an attorney) are pushed through the system with unfair results. Our firm successfully appealed a case for a client who represented himself in a municipal court proceeding in Denver. While it was a minor case, the judge sentenced him to 300 days in jail, even though teh District Attorney offered him a mere 30 days in jail. He hired our offie to appeal the decision and upon review of the record, we immediately noticed that he was never provided an Arguello Advisement. Many judges, particularly in municipal court, fail to properly advise the pro se defendants of their right to counsel, the maximum penatlies, etc. The Arguello Advisement is necessary to ensure the defendant understands his rights before proceeding to trial pro se. Failing to give a proper Arguello Advisement is a reason to get a new trial and failing to give an advisement entirely is certainly grounds for a new trial. The Arguello Advisement just may be your sword to get a new trial.

The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to counsel at every critical stage of a criminal proceeding, Gideon v. Wainwright, 372 U.S. 335 (1963); Key v. People, 865 P.2d 822 (Colo. 1994), as does the Colorado Constitution. (See Colo. Const. art. II, §16). Waiver of the right to counsel must be made voluntarily, knowingly, and intelligently based on the circumstances of each case. People v. Arguello, 772 P.2d 87 (Colo. 1989). A criminal defendant may not be tried unless he is competent, and he may not waive his right to counsel unless he does so competently and intelligently. Godinez v. Moran, 509 U.S. 389, 396 (1993). The facts supporting the finding of waiver must appear on the record, Carnley v. Cochran, 369 U.S. 506 (1962) (emphasis added); and the court should indulge every reasonable presumption against finding a waiver and must resolve any doubts in favor of the defendant. People v. Arguello, supra. “The trial court has the responsibility of ensuring the validity of a waiver by properly advising the accused [and] must confirm that the accused is making a knowing and informed decision to forego ‘many of the traditional benefits associated with the right to counsel.” People v. Arguello, Id. at 95 (quoting Faretta v. California, 422 U.S. at 835) (internal quotations omitted).

While the waiver of a constitutional right usually takes the form of an express statement by the defendant, waiver also may be implied if “the record as a whole . . . show[s] that the defendant knowingly and willingly undertook a course of conduct that evinces an unequivocal intent to relinquish or abandon his right to legal representation.” King v. People, 728 P.2d 1264, 1269 (Colo. 1986). However, an implied waiver of the right to counsel as a result of the defendant’s conduct is not valid “in the absence of proof that he was adequately informed so as to understand the consequences of his actions.” People v. Arguello, supra, 772 P.2d at 97 (citing King v. People, supra). A criminal defendant may waive the right to counsel. North Carolina v. Butler, 441 U.S. 369 (1979); King v. People, 728 P.2d 1264 (Colo. 1986). However, the defendant first “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 v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, (1942)). The court further concluded the defendant did not knowingly and intelligently waive his right to counsel because “the trial court made no attempt to question [the defendant] about his understanding of what it would mean to proceed without counsel.” People v. Arguello, supra, 772 P.2d at 96. To avoid future problems of this nature, the Colorado Supreme Court recommended that defendants be given an advisement similar to the one in the Colorado Trial Judges’ Benchbook (Sept. 1981), regarding waiver of counsel, and such advisement was included in the appendix to the court’s decision. (See People v. Arguello, supra.)

Additionally, a voluntary waiver of counsel is not valid until the court determines that the waiver is made knowingly and intelligently. In order for a waiver to be valid, the record must clearly show that defendant understands the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. (See Arguello at 94).

The right to represent oneself is constitutionally protected but is not of the same magnitude as the competing right to counsel. (See United States v. Woodard, 291 F.3d 95, 106 (1st Cir.2002) (“the right to counsel is paramount” where it collides with right of self-representation)). Thus, “representation by counsel is the standard, not the exception.” Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000). Also, because “a pro se defense is usually a bad defense . . . [c]ourts must indulge every reasonable presumption against finding a waiver of the fundamental right to counsel.” Arguello, 772 P.2d at 93 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (internal quotations omitted). Unlike the self-executing right to counsel, a defendant seeking to represent himself “must make an unequivocal request to waive counsel and proceed pro se.” People v. Bolton, 859 P.2d 303, 306 (Colo.App.1993); cf. Faretta, 422 U.S. at 835, 95 (noting “weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel”). Absent an unequivocal request, courts “must ascribe a ‘constitutional primacy’ to the right to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served by protecting the right of self-representation.” United States v. Frazier-El, 204 F.3d 553, 559 (4th Cir.2000). (See People v. Abdu, 215 P.3d 1265 (Colo. App. 2009)).

If you proceeded to trial pro se and were convicted, you may be entitled to relief. However, there are sensitive deadlines for filing an appeal so you need to act quickly after conviction.