Wednesday, April 5, 2017
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Court of Appeal Rules:
Man Sentenced Without Lawyer Not Entitled to Reversal
By KENNETH OFGANG, Staff Writer
A defendant sentenced without a lawyer present is not automatically entitled to a new sentencing hearing, the First District Court of Appeal ruled yesterday.
Div. Four affirmed Jackson A. Parrott’s conviction and five-year sentence for being a felon in possession of a firearm. Humboldt Superior Court Judge John Feeney imposed the sentence following a hearing at which Parrott represented himself, after his retained counsel failed to appear and could not be located.
Presiding Justice Ignacio Ruvolo, writing for the Court of Appeal, rejected the prosecution argument that Parrott unequivocally waived his right to counsel. But he also swept aside the defense contention that the error was per se reversible, and concluded that it was harmless beyond a reasonable doubt because there was nothing a lawyer could have done that would have resulted in a lighter sentence.
Parrott was arrested after a traffic stop in Eureka revealed that he was driving with a suspended license. A search of his person revealed that he was carrying a gun, and it was subsequently determined that he was a convicted felon barred from possessing firearms.
Five months later, police arrested him on an outstanding warrant while he was sitting in his car in the parking lot of a local mall. A search of his vehicle revealed a loaded gun under the driver’s seat.
He was charged in two separate informations with two counts of possession of a firearm and one count of possession of ammunition by a convicted felon, plus one count of driving with a suspended license, along with various enhancements. He agreed to plead guilty to the two firearms counts, and admit a prior “strike” and a prior prison term enhancement, in exchange for a dismissal of the remaining charges and enhancements, and to be sentenced to the five-year prison term.
Missing Lawyer
When attorney Michael P. Acosta could not be located on Oct. 7, 2015, the date set for sentencing, Feeney had the clerk provide Parrott with a copy of the probation report and said he was entitled to time to review it.
Parrott responded:
“He can be my lawyer at this point. Let’s just go.”
The judge told Parrot he could represent himself, and that “I think we all agreed what’s going to happen.” The defendant said he was “ready” to “roll” and answered “yeah” when asked if he was “waiving Mr. Acosta’s presence.”
The judge then imposed the agreed-upon sentence, which Parrott’s appellate counsel said should be reversed for structural error.
Ruvolo agreed there was error under the Sixth Amendment. Parrott’s responses to the judge’s questions were not an unequivocal invocation of the right of self-representation, and may have indicated that he thought he had a right to a different lawyer, or that he could not be sentenced that day if he did not waive the right to counsel.
Nor was he warned of the dangers of self-representation, Ruvolo noted. But Court of Appeal panels have split as to whether failure to give such warnings requires automatic reversal, the presiding justice said.
Different Standard
The better-reasoned decisions, Ruvolo concluded, are those that apply the harmless-beyond-a-reasonable doubt standard to deficiencies in warnings when a defendant is allowed to represent himself. This differs from the situation in which a self-representation request is denied, which is structural error if the request is unequivocal and the right has not otherwise been waived or forfeited, the presiding justice explained.
Nothing in Parrott’s briefing, or in the justices’ own reckoning, suggests anything that counsel could have done to avoid the defendant having to serve the sentence he bargained for, the jurist went on to say.
Parrott, he noted, admitted to the probation investigator that he possessed the gun and acknowledged that he was going to prison as a result. Ruvolo further pointed out that the offense is one for which probation may only be granted in unusual circumstances, that there was no suggestion any such circumstances existed, and that the terms of the plea agreement did not permit the judge to consider a lesser term.
The absence of counsel at sentencing therefore caused “no prejudice whatsoever,” the presiding justice said.
The case is People v. Parrott, A146642.
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