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Massey v. State

Court of Appeals of Alaska

November 9, 2018


          Appeal from the Superior Court, No. 3AN-12-12699 CR, Third Judicial District, Anchorage, Michael L. Wolverton, Philip R. Volland, and Michael R. Spaan, Judges.

          Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]


          ALLARD JUDGE.

         Thomas Leonard Massey Jr. was charged with second-degree escape for leaving the halfway house where he had been placed by the Department of Corrections. Prior to trial, Massey requested multiple representation hearings because he was unhappy with his appointed counsel. At the final pretrial representation hearing, Massey asked to waive his right to counsel and to represent himself. The judge presiding over this pretrial hearing told Massey that he would give him time to think about this decision, and that the court would address Massey's self-representation request at the next pretrial hearing. But at the next hearing, when Massey renewed his request to represent himself, the judge did not conduct the promised self-representation inquiry - and when Massey tried to object, the judge would not let him personally address the court.

         Later, at the trial call in Massey's case, held in front of a different judge, Massey again tried to renew his request to represent himself. This second judge told Massey (mistakenly) that the first judge had already resolved this issue. When Massey personally protested that this was not the case, the court ignored Massey's protests and Massey's attorney did not pursue the matter further. Massey's case proceeded to a bench trial (with Massey represented by counsel), and Massey was convicted.

         In the present appeal, Massey argues that he was denied his right of self-representation. The record shows that Massey clearly and unequivocally invoked his right of self-representation, but he never received the self-representation hearing to which he was entitled. We therefore reverse his conviction.

         Background facts

         On December 2, 2012, Massey was arrested on charges of theft and resisting arrest. Massey could not obtain release on bail, and the Department of Corrections transferred him from the Anchorage jail to the Cordova Center, a halfway house. The next day, Massey was reported missing from the Cordova Center. He was located and arrested four months later, and charged with escape.

         The Public Defender Agency was appointed to represent Massey, but Massey became dissatisfied with the agency's representation, and he repeatedly asked for another attorney. Superior Court Judge Michael L. Wolverton, who presided over the pretrial hearings in Massey's case, denied each of Massey's requests for substitute counsel.

         At the final pretrial representation hearing, held on August 4, 2014, after Judge Wolverton again denied Massey's request for a new lawyer, Massey asked, "Can I go pro se?" When Judge Wolverton asked Massey, "Do you want to represent yourself?" Massey answered, "Yes. Yes, Your Honor."

         Judge Wolverton told Massey that he would give him some additional time to think about whether he wanted to represent himself. Massey answered that he wanted to represent himself, and that the court could hold the inquiry right then. Judge Wolverton told Massey that they would talk about his request for self-representation at the pretrial conference scheduled for two days later, on August 6, 2014.

         This pretrial conference was delayed for three weeks, until August 27. When Massey's case was called at this pretrial conference, his attorney told Judge Wolverton that Massey was renewing his request to represent himself. But instead of taking up Massey's request, as he had promised, the judge ignored Massey's request and instead began questioning the attorneys if they were ready for trial. Both of the attorneys indicated that they were ready. Massey tried to personally interject, but was not allowed to speak.

         One week later, at a trial call held on September 2 in front of Superior Court Judge Philip R. Volland, Massey's attorney noted that Massey had requested to represent himself, and the attorney told Judge Volland that it was not clear "[whether] Judge Wolverton ever made a final determination on that." Massey also told Judge Volland that he thought he "was ...

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