STATE OF MISSOURI, Plaintiff-Respondent v. ANDREA WILLIAMSON, Defendant-Appellant

1

STATE OF MISSOURI, Plaintiff-Respondent, v. ANDREA WILLIAMSON, Defendant-Appellant.

No. SD38414

APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable William W. Carter, Special Judge REVERSED AND REMANDED Andrea Williamson ("Williamson") appeals from the New Madrid Circuit Court's ("trial court's") judgment finding her guilty of one count of endangering the welfare of a child in the first degree. See section 568.045. 1 Williamson waived her right to a jury trial and represented herself pro se at a bench trial. After finding her guilty of the crime, the trial court granted her a suspended imposition of sentence and placed Williamson on five

1 All references to statutes are to RSMo 2016, including changes effective January 1,

In Division

2

years' probation. Eventually, after multiple probation violations, the trial court revoked Williamson's probation, entered judgment convicting her of the crime, and sentenced her to three years' imprisonment. Williamson now contends on appeal, and the State concedes, the trial court failed to conduct an adequate Faretta 2 hearing or ensure a written waiver of counsel was entered prior to trial, as required by section 600.051. This Court reverses the trial court's judgment and remands the case to the trial court for a new trial. Factual and Procedural Background Williamson was charged by Second Amended Information with the class D felony of endangering the welfare of a child in the first degree. Specifically, the information alleged Williamson created "a substantial risk to the life, body and health of [Victim], a child less than seventeen years of age, by hitting him in the eye with a board." Williamson appeared pro se at a hearing on November 28, 2017, where she waived formal arraignment and entered a plea of not guilty. Counsel entered his appearance on Williamson's behalf on December 21, 2017, approximately one month after the initial information was filed. On June 12, 2018, by agreement of the parties, the case was set for trial on September 12, 2018. A few weeks later, on July 3, 2018, Williamson's counsel filed a motion to withdraw from the case as Williamson's attorney. On July 24, 2018, the trial court granted trial counsel's motion without objection from Williamson. The record reflects Williamson was never represented by counsel thereafter.

2 Faretta v. California, 422 U.S. 806 (1975).

3

Docket entries indicate Williamson appeared before the trial court without counsel for at least ten scheduled hearing dates. Nothing in the record indicates that the trial court advised Williamson of her right to appointed counsel if she could not afford counsel to represent her. On January 10, 2020, after several stricken trial settings, the cause came to trial. Williamson again appeared without counsel. The trial court asked Williamson if she was ready to proceed to trial without an attorney: THE COURT: ... Ms. Williamson, let me ask you, ma'am, are you ready to proceed this morning?

[Williamson]: Yes, sir.

THE COURT: And, you're ready to proceed without an attorney; is that correct?

[Williamson]: Yes, sir.

....

THE COURT: Ms. Williamson, the prosecutor's office has filed this morning an amended, really a second amended information in this case, in light of the conversations that we had earlier this morning, Ms. Williamson, and I'm now going to read to you the amended information, second amended information that has been filed. You are charged, Ms. Williamson, with having committed the Class D Felony of endangering the welfare of a child in the first degree, in that on or about October 9th, of 2017, here in New Madrid County, you knowingly acted in a manner that created a substantial risk to the life, body, and health of [Victim], a child less than 17 years of age, by hitting him in the eye with a board. The range of punishment for this Class D Felony of [sic] imprisonment in the custody of the Missouri Department of Corrections for a term of years not less than two, not more than seven, or, by a – by imprisonment for a special term in the county jail of no less than one day, or, no more than one year. Or – or, that is to say, this is an alternative for this charge, by a fine, a monetary fine not to exceed $10,000. I am going to show, until you tell me otherwise, Ms.

4

Williamson, that you stand on your previous plea of not guilty to this charge; is that correct?

[Williamson]: Yes, sir.

THE COURT: And, you would like to proceed with a trial this morning; is that correct?

[Williamson]: Yes, sir.

THE COURT: And, you understand, Ms. Williamson[,] this charge of having committed the Class D Felony of endangering the welfare of a child as I read it to you; is that correct?

[Williamson]: Yes, sir.

THE COURT: Thank you, Ms. Williamson.

Other than this brief exchange, there is nothing in the record reflecting that the trial court inquired further about Williamson's decision to represent herself at trial. While Williamson did sign a "Notice of Intent to Waive Jury Trial" on January 10, 2020, before proceeding to trial which the trial court received and approved, the record is devoid of any further examination regarding this waiver or Williamson's waiver of counsel, including whether either were made knowingly, voluntarily, or intelligently. Also missing from the record is a written waiver of counsel signed by Williamson prior to proceeding to trial. At trial, Williamson did not make an opening statement, testify herself, or call any witnesses to testify on her behalf. She did, however, cross-examine the State's witnesses and she gave a closing argument. She did not move for judgment of acquittal. The trial court found Williamson guilty upon the conclusion of closing arguments. Williamson did not file a motion for new trial. She appeared for sentencing pro se on June 23, 2020. The

5

trial court made no inquiry regarding her appearing without an attorney at sentencing. The trial court granted a suspended imposition of sentence and placed her on five years' supervised probation. After multiple probation violations, the trial court revoked Williamson's probation, entered judgment convicting Williamson of endangering the welfare of a child in the first degree, and sentenced her to three years' imprisonment in the Missouri Department of Corrections. Williamson then timely filed her appeal with this Court. 3

Standard of Review Williamson concedes she did not raise her claims now on appeal during trial or file a motion for new trial. Therefore, her claims are not preserved for appellate review. The Western District of this Court recently examined the standards of review for the issues now before us in State v. Peck, 671 S.W.3d 400 (Mo. App. W.D. 2023): A constitutional claim must be made at the first opportunity to be preserved for our review. State v. Masters, 651 S.W.3d 863, 867 (Mo. App. W.D. 2022) (quoting State v. Davis, 507 S.W.3d 41, 44 (Mo. App. E.D. 2016)). Nevertheless, "a self-represented defendant's failure to object at trial regarding the knowing, voluntary, and intelligent nature of [her] waiver of the right to counsel is generally excused." Id. (quoting State v. Kunonga, 490 S.W.3d 746, 759 (Mo. App. W.D. 2016)). We generally excuse self-represented defendants from this preservation requirement because they "cannot be expected to object that a waiver-of- counsel was not voluntary because of alleged inadequacies in an on-the- record inquiry designed to determine whether [the] waiver is knowing,

3 Because the trial court initially granted Williamson a suspended imposition of sentence, the trial court retained jurisdiction over the case as the charge remained pending. State v. Bodenhamer, 689 S.W.3d 485, 488 (Mo. banc 2024). As such, Williamson's right to appeal was delayed while the trial court retained jurisdiction. Id. Once Williamson's probation was revoked and the trial court imposed a sentence on her, there were no further issues for the trial court to decide, and the trial court no longer had jurisdiction. The judgment became final, and Williamson could then appeal. Id.

6

voluntary, and intelligent." Id. (citation omitted). Thus, we review [a defendant's] constitutional claim that the trial court conducted an inadequate Faretta hearing de novo. Id. ("[W]e review a claim that the waiver of counsel hearing was inadequate de novo."). We do not review de novo, however, a self-representing litigant's unpreserved claim that the trial court violated section 600.051[] by not obtaining a written waiver of counsel form. Id. at 868; Kunonga, 490 S.W.3d at 759. Rather, we review an unpreserved claim that the trial court failed to comply with section 600.051 under plain error. Masters, 651 S.W.3d at 868; Kunonga, 490 S.W.3d at 759-60. To be entitled to plain error relief, the alleged error (1) must be "evident, obvious, and clear" and (2) "must have resulted 'in manifest injustice or a miscarriage of justice.'" Masters, 651 S.W.3d at 868 (citing Kunonga, 490 S.W.3d at 760); Rule 30.20.[] As this Court stated in Masters: A violation of Section 600.051 constitutes evident, obvious, and clear error because Section 600.051 "protects a fundamental constitutional right, and compliance with [the statute] is essential to the State's ability to sustain its burden to establish a waiver of counsel." Additionally, a violation of Section 600.051 constitutes a manifest injustice or miscarriage of justice ...." Id. at 868 (citations omitted). "Plain error review remains subject, however, to the State's burden to prove that an unrepresented defendant waived the right to counsel." Kunonga, 490 S.W.3d at 760. Because the State bears this burden, "the State must prove compliance with section 600.051and that a defendant was afforded a Faretta hearing." Id. at 765. "Only then will the burden shift to the unrepresented defendant to establish that the waiver of counsel was not knowing, voluntary, or intelligent." Id. "[T]he State can overcome the existence of a manifest injustice or miscarriage of justice by objectively demonstrating that the violation of section 600.051 had no impact on a defendant's knowing, voluntary, and intelligent waiver of counsel." Id. at

Id. at 406-07 (footnotes omitted). The State concedes that Williamson is entitled to relief on her unpreserved claims.

7

Analysis In two points relied on, Williamson contends the trial court violated her constitutional and statutory rights in allowing her to proceed to trial pro se without (1) ensuring Williamson executed a written waiver of counsel prior to trial as mandated by section 600.051 and (2) conducting an adequate Faretta hearing to ensure Williamson's waiver of counsel was knowing, intelligent, and voluntary. The State concedes the trial court erred on both points and, like Williamson, requests Williamson's conviction and sentence be reversed. We agree and reverse and remand for a new trial. Two requirements must be met before a trial court can conclude that a defendant effectively waived his or her right to counsel: First, the trial court must conduct "a thorough [Faretta] evidentiary hearing that establishes that the defendant understands exactly what rights and privileges he [or she] is waiving, as well as the dangers associated with waiving constitutional rights." [State v. Floyd, 635 S.W.3d 593, 597 (Mo. App. W.D. 2021)] (quoting Kunonga, 490 S.W.3d at 764. "Second, the defendant must be given the opportunity to sign the written waiver of counsel form mandated by Section 600.051." Id. (quoting Kunonga, 490 S.W.3d at 764). "There is a strong presumption against the waiver of counsel." Kunonga, 490 S.W.3d at 762.

Id. at 407. Although there is no specific litany required for a Faretta hearing, a waiver of counsel must be knowingly, voluntarily, and intelligently made which requires, at a minimum, that the trial court inform a defendant of the charges against him or her, the potential sentences if convicted, any potential defenses available to the defendant, the nature of the trial proceedings, and the dangers of proceeding pro se. Id. at 407-08. Failure to do so violates a defendant's constitutional rights. Id. at 408. In addition, section

8

600.051 mandates the trial court obtain a written waiver of a defendant's rights to counsel and the failure to do so is plain error resulting in manifest injustice. Id. at 409. In relevant part, section 600.051.1 states: Any judge of a court of competent jurisdiction may permit a waiver of counsel to be filed in any criminal case wherein a defendant may receive a jail sentence or confinement if the court first determines that defendant has made a knowledgeable and intelligent waiver of the right to assistance of counsel and the waiver is signed before and witnessed by the judge or clerk of the court ....

The trial court "must advise the defendant of the perils of self-representation on the record before the trial date, to allow defendant time to choose whether to waive the right to an attorney." City of St. Peters v. Hodak, 125 S.W.3d 892, 894 (Mo. App. E.D. 2004) (citation modified). "A criminal defendant should not be deemed to have waived their right to counsel 'until the entire process of offering counsel has been completed[,]' including 'a thorough inquiry into the accused's comprehension of the offer and capacity to make the choice intelligently and understandably ....'" Peck, 671 S.W.3d at 408 (quoting Hodak, 125 S.W.3d at 894) (citation modified). We cannot presume Williamson waived her right to counsel "from the echoes of a silent record[.]" State v. Sullivan, 640 S.W.3d 149, 156 (Mo. App. E.D. 2022) (citation modified). Here, the trial court did nothing more than ask Williamson, on the morning of trial, if she was ready to proceed to trial and if she was ready to do so without counsel. The trial court did not warn her of the dangers of proceeding pro se or generally the trial procedure. Then, the trial court proceeded to arraign her on the Second Amended Information filed by the State that morning. During that exchange, the trial court did

9

inform Williamson of the nature of her charge, the range of punishment, asked if she intended to stand on her plea of not guilty to the charge, and asked if she understood the charge. However, the trial court did not inform Williamson of any potential defenses available to her or ask her if she knew of any defenses herself. The trial court never discussed or received a written waiver of counsel from Williamson. Because the trial court failed to conduct an adequate Faretta hearing and failed to ensure Williamson executed a waiver of counsel form required under section 600.051, the trial court failed to ensure Williamson knowingly, voluntarily, and intelligently waived her right to counsel. Points I and II are granted. We reverse the trial court's judgment and remand the case to the trial court for a new trial. JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS BECKY J. WEST, J. – CONCURS