State of Missouri, Respondent, v. Elizabeth M. Speer, Appellant.

STATE OF MISSOURI, ) ED113172 ) Respondent, ) ) v. ) ) ELIZABETH M. SPEER, ) ) Appellant. ) Filed: February 17, 2026

Appeal from the Circuit Court of Jefferson County The Honorable Jeffrey T. Coleman, Judge

Defendant Elizabeth M. Speer appeals her convictions of one count of the class B misdemeanor of second-degree property damage, Section 569.120, and one count of the class C misdemeanor of fourth-degree assault, Section 565.056(3). Ms. Speer represented herself pro se at a bench trial. She alleges, and the State concedes, that the trial court failed to conduct an adequate Faretta 1 hearing or ensure a written waiver of counsel was entered

1 A Faretta hearing is a pre-trial evidentiary hearing conducted by the trial court to determine that a defendant who chooses to waive their Sixth Amendment right to counsel is doing so knowingly and intelligently as set forth in Faretta v. California, 422 U.S. 806 (1975). State v. Shields, 696 S.W.3d 469, 477 n. 6 (Mo. App. S.D. 2024)

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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

The State charged Ms. Speer via information with one count of second-degree property damage and one count of fourth-degree assault. A bench trial was held on February 27, 2023. The record reflects the trial court noted on one document that Ms. Speer "announce[d] ready for trial" and on another document that Ms. Speer "appears in person and without counsel and proceeds pro se." At no point between Ms. Speer's initial appearance in October of 2022 and her trial date did any attorney enter an appearance on her behalf. At the start of trial, the following exchange occurred between the trial court and Ms. Speer: THE COURT: The Defendant's here in person, without counsel. Ms. Speer, is it your intention to represent yourself in this matter?

MS. SPEER: Yes, Your Honor.

THE COURT: All right. And you understand you can represent yourself. That's fine. Do you understand that you are subject to the same rules of evidence and procedure that an attorney would be? Do you understand that?

MS. SPEER: Yes, sir.

THE COURT: All right. And you're ready to proceed?

MS. SPEER: Yes.

THE COURT: All right. State, you're ready to proceed?

STATE: Yes, Your Honor.

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THE COURT: All right. Go ahead.

Other than this brief exchange, the record is devoid of any further examination regarding Ms. Speer's waiver of counsel. The State then called two witnesses. Ms. Speer elected to testify on her own behalf, after being advised of her right not to testify. After closing arguments, the trial court found Ms. Speer guilty of both charges. The trial court suspended imposition of sentence for both charges, and placed Ms. Speer on supervised probation. Ms. Speer failed to complete multiple probation conditions. Ms. Speer's probation was ultimately revoked and she was sentenced to twenty-one days in the Jefferson County Jail. Ms. Speer now timely appeals. 2

Standard of Review

Ms. Speer argues on appeal that, in allowing her to represent herself, the trial court violated both her constitutional rights and a statute. Ms. Speer acknowledges her claims on appeal are not preserved for appellate review, as she did not raise either claim at trial or file a motion for new trial. "Constitutional claims must be made at the first opportunity to be preserved for review." State v. Ndon, 583 S.W.3d 145, 153 (Mo. App. W.D. 2019) (internal quotation omitted). "However, a self-represented defendant's failure to object at trial regarding the knowing, voluntary, and intelligent nature of his [or her] waiver of the right to counsel is

2 Because a suspended imposition of sentence is not a final judgment, Ms. Speer's right to an appeal was delayed until her probation was revoked and the trial court imposed her sentence. State v. Bodenhamer, 689 S.W.3d 485, 487 (Mo. banc 2024).

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generally excused." Id. We generally excuse self-represented defendants from this preservation requirement because a pro se defendant "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, voluntary, and intelligent." State v. Peck, 671 S.W.3d 400, 406 (Mo. App. W.D. 2023); accord Ndon, 583 S.W.3d at

1. Thus, we review Ms. Speer's constitutional claim that the trial court conducted an

inadequate Faretta hearing de novo. Id. This de novo standard of review does not apply, however, to Ms. Speer's claim that the trial court violated Section 600.051 by not obtaining a written waiver of counsel. Id. "There is no rational basis for excusing a pro se defendant's failure to raise the court's alleged non-compliance with Section 600.051." Ndon, 583 S.W.3d at 153. Ms. Speer's unpreserved claim is subject only to plain-error review. State v. Kunonga, 49 S.W.3d 746, 761 (Mo. App. W.D. 2016); Peck, 671 S.W.3d at 406-9 (reviewing claimed violation of Section 600.051 for plain error); State v. Hunter, 840 S.W.2d 850, 86 (Mo. banc 1992) (holding that where no objection to trial court's failure to obtain a written waiver of counsel was made at trial, the standard for reviewing the claim on appeal is that of plain error); State v. Brandolese, 601 S.W.3d 519, 630 (Mo. banc 2020) (stating "Rule 30.20 is the exclusive means by which an appellant can seek review of any unpreserved claim of error and said claim—no matter if it is statutory, constitutional, structural, or of some other origin—is evaluated by this Court's plain error framework without exception.").

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This Court generally does not review unpreserved claims of error. Brandolese, 601 S.W.3d at 525. Rule 30.20 alters this general rule by authorizing this Court to review, in our discretion, "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted." Rule 30.20; Brandolese, 601 S.W.3d at 526. "'Plain error relief is granted only when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected.'" Ndon, 583 S.W.3d at 154 (quoting State v. Perry, 548 S.W.3d 292, 300-01 (Mo. banc 2018)). Plain-error review is a two-step process. State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022). First, we determine whether the claim of error "facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Id. at 731 (internal quotation omitted); Kunonga, 49 S.W.3d at 760. In other words, we determine whether the trial court committed plain error. See, e.g., State v. Green, 597 S.W.3d 229, 233 (Mo. App. W.D. 2019); State v. Umfleet, 621 S.W.3d 15, 22 (Mo. App. E.D. 2021); Minor, 648 S.W.3d at 731. Plain errors are those that are evident, obvious, and clear. Minor, 648 S.W.3d at 731 (internal quotation omitted). If plain error is found, the court must then proceed to the second step and determine whether the error actually resulted in manifest injustice or a miscarriage of justice. Id. (internal quotation omitted); Kunonga, 49 S.W.3d at 760. Discussion

In two points relied on, Ms. Speer alleges the trial court violated her constitutional rights and a statute in allowing her to proceed to trial pro se: (1) without conducting an

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adequate Faretta hearing to ensure her waiver of counsel was knowing, intelligent, and voluntary; and (2) without ensuring she executed a written waiver of counsel prior to trial as mandated by Section 600.051. The State concedes the trial court erred on both points and, like Ms. Speer, asserts Ms. Speer's convictions and sentence should be reversed. We agree and therefore reverse and remand for a new trial. The Sixth Amendment to the United States Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." The Sixth Amendment to the United States Constitution guarantees that a person brought to trial must be afforded the right to the assistance of counsel before they can be validly convicted and punished by imprisonment. U.S. Const. amend. VI.; Faretta v. California, 422 U.S. 806, 807 (1974); State v. Sullivan, 640 S.W.3d 149, 154 (Mo. App. E.D. 2022). "The constitutional right to counsel extends to all offenses for which imprisonment may be imposed, including misdemeanors such as charged in this case." Sullivan, 640 S.W.3d at 154. "The constitutional right to counsel implicitly embodies a correlative right of the accused to forego counsel and represent him or herself pro se." 3

Id. Defendants have a right not to have counsel and to represent themselves pro se. Faretta, 422 U.S. at 813-36. If a defendant elects to proceed pro se, they have to go into self-representation with their "eyes open." Faretta, 422 U.S. at 835. For a waiver of counsel to be effective, due process requires that the waiver be made knowingly and intelligently. Id.; Hunter,

3 The right to dispense with counsel applies to the states through the Due Process Clause of the Fourteenth Amendment. Peck, 671 S.W.3d at 407.

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840 S.W.2d at 857. An accused who manages their own defense relinquishes many of the traditional benefits associated with the right to counsel. Faretta, 422 U.S. at 835; Sullivan, 640 S.W.3d at 154. For this reason, in order for an accused to represent themselves, the accused must knowingly and intelligently forgo those relinquished benefits. Id. "Absent a knowing and intelligent waiver, no person may be imprisoned unless [they] were represented by counsel at trial." Sullivan, 640 S.W.3d at 154 (internal quotation omitted). "A trial court has a duty to determine whether a knowing and intelligent waiver has been made." Id. (internal quotation omitted). "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused - whose life or liberty is at stake - is without counsel." Id. (internal quotation omitted). "This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." Id. (internal quotation omitted). "To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, the trial court should conduct a penetrating and comprehensive examination, and must investigate as long and as thoroughly as the circumstances of the case before the court demand." Id. "The fact that an accused may tell the trial court that they are informed of their right to counsel and desires to waive this right does not automatically end the court's responsibility." Id. at 154-55 (internal quotation omitted). Missouri has two requirements that must be satisfied before the trial court can conclude that an accused has effectively waived the right to counsel. Id. at 155. First,

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there must be a thorough evidentiary hearing – known as a Faretta hearing – that establishes the accused understands exactly what rights and privileges they are waiving, as well as the dangers and disadvantages of self-representation. Id. Second, "the accused must be given the opportunity to sign the written waiver-of-counsel form mandated by Section 600.051." Id. Point I: Faretta Hearing

Looking first at the adequacy of the Faretta, waiver-of-counsel hearing, we note there is no specific litany of questions required for a Faretta hearing. Ndon, 583 S.W.3d at 154. "No rigid procedure or specific litany is required for apprising an accused of the difficulty and dangers of self-representation." Sullivan, 640 S.W. at 155. "Nonetheless, the accused should be apprised in terms sufficient to enable him to make an intelligent decision." Id. "Although an accused need not themselves have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, the accused should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that the accused knows what they are doing and that their choice is made with 'eyes open.'" Id. (internal quotation omitted). A trial court can only make certain that a defendant has knowingly and intelligently waived the right to counsel from a "penetrating and comprehensive examination of all the circumstances." Peck, 671 S.W.3d at 407. Although no particular litany of questions is required, there are certain areas of inquiry the trial court should explore on the record to ensure a defendant's waiver is knowing and intelligent. State v. Black, 223 S.W.3d 149, 155 (Mo. banc 2007). First a

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trial court should inquire into the defendant's capacity to make an intelligent decision and the defendant's knowledge of their situation. Id. at 156. "This does not mean that the defendant must be as legally competent as an attorney." Id. Rather, the trial court "should ensure that the defendant is not acting under duress, does not suffer from a mental incapacity, is literate and is minimally familiar with the trial process, including possible defenses to the crime charged, the different phases of trial, objection procedure and the elements of the crime charged." Id. "In addition to ensuring that the defendant is mentally competent and understands the nature of the proceedings, the court should also make certain that the defendant understands the possible penalties if convicted." Id. The trial court should also be sure the defendant understands exactly what rights and privileges the defendant is waiving, as well the dangers associated with waiving constitutional rights. Id.; Faretta, 422 U.S. at 835. "In this regard, the court should first ensure that the defendant understands that [the defendant] has the right to counsel, including appointed counsel if [the defendant] is indigent." Black, 223 S.W.3d at 156. If the defendant chooses to continue without counsel, the trial court should advise the defendant generally that it is usually a mistake to proceed without a lawyer and then specifically warn the defendant about the dangers, disadvantages, and repercussions of self-representation. Id.; see also, State v. Teter, 665 S.W.3d 306, 313 (Mo. banc 2023); State v. Cothran, 715 S.W.3d 603, 615 (Mo. App. E.D. 2025); Sullivan, 640 S.W.3d at 155-56; State v. Wilkerson, 948 S.W.2d 440, 445 (Mo. App. W.D. 1997). It is essential that a record be made reflecting that the defendant was apprised of the difficulties of self-representation in terms sufficient to enable the defendant to

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intelligently decide which course to follow. Sullivan, 640 S.W.3d at 155. "The court's duty to the accused is not extinguished merely by the signing of a waiver-of-counsel form." Id.; City of St. Peters v. Hodak, 125 S.W.3d 892, 895 (Mo. App. E.D. 2004). "Because this is a matter of constitutional right, a simple waiver-of-counsel form, without a record of hearing, is insufficient." Sullivan, 640 S.W.3d at 155; Hodak, 125 S.W. 3d at

1. "The determination that an accused has made a knowledgeable and intelligent

waiver of the right to assistance of counsel must be based upon inquiry conducted on the record so there is evidence the accused understood the ramifications of the waiver and that the accused acted knowingly and intelligently in waiving counsel." Sullivan, 640 S.W.3d at 155-56. This Court will not presume waiver of such a fundamental right "from the echoes of a silent record." Id. at 156. Moreover, the trial court "must advise the defendant of the perils of self-representation on the record before the trial date, to allow the defendant time to choose whether to waive the right to an attorney." Peck, 671 S.W.3d at 408; Hodak, 125 S.W.3d at 894. "The State bears the burden to prove that an unrepresented defendant waived the right to counsel." Teter, 665 S.W.3d at 313; Cothran, 715 S.W.3d at 614. The State must demonstrate compliance with the written waiver requirement in Section 600.051 and that the defendant was afforded a Faretta hearing. Id. "Only then will the burden shift to the unrepresented defendant to establish that the waiver of counsel was not knowing, voluntary, or intelligent." Id. The State in its brief to this Court candidly admits "there is no record of a Faretta hearing" in this case and that "no Faretta hearing

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or equivalent was conducted on the record by the trial court." We agree and appreciate the State's candor. Here, the record shows the trial court did nothing more than ask Ms. Speer, on the morning of trial, if she intended to represent herself, if she understood that she was subject to the same rules of evidence and procedure that an attorney would be, and finally, if she was ready to proceed. The record shows the trial court fell short of conducting a full Faretta hearing, in many respects. There is no record of the trial court inquiring into Ms. Speer's capacity to make an intelligent decision and her knowledge of her situation. There is no record of the trial court ensuring that Ms. Speer was not acting under duress, that she did not suffer from a mental incapacity, or that she was literate. The trial court did not ensure that Ms. Speer understood the general nature of the trial proceedings, other than she was subject to the same rules of evidence and procedure as an attorney would be. There is no record of the trial court informing Ms. Speer of the charges against her, the potential defenses to the crimes charged that Ms. Speer could offer, or the potential sentences Ms. Speer faced if convicted. There is no record of the trial court ensuring that Ms. Speer understood exactly what rights and privileges she was waiving, as well as the dangers associated with waiving constitutional rights. The trial court did not ensure that Ms. Speer understood that she had the right to counsel, including appointed counsel if indigent and did not generally advise Ms. Speer that it is usually a mistake to proceed without a lawyer. Nor is there a record of the trial court specifically warning Ms. Speer about the dangers, disadvantages, and repercussions of self- representation. In sum, the record is void of any inquiry in the areas the trial court should

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explore to ensure Ms. Speer's waiver of counsel was knowing and intelligent. As a result, we have no record that Ms. Speer understood the ramifications of her waiver of counsel, and the dangers and disadvantages of self-representation. "The decision whether to allow a criminal defendant to waive the right to counsel and exercise the right of self-representation is one of the most sensitive rulings required of a trial court." Black, 223 S.W.3d at 155. A thorough evidentiary hearing must be held when a defendant chooses to represent themselves. Id. No such hearing was held in this case, let alone an adequate, penetrating and comprehensive examination of all circumstances. The trial court thus failed to ensure that Ms. Speer knowingly and intelligently waived her right to counsel, and thereby violated Ms. Speer's constitutional rights. Peck, 671 S.W.3d at 408 Point I, in which Ms. Speer alleged the trial court violated her constitutional rights in allowing her to proceed to trial pro se without conducting an adequate Faretta hearing to ensure her waiver of counsel was knowing, intelligent, and voluntary, is granted. Point II: Section 600.051 Written Waiver of Counsel Form

We turn then to Ms. Speer's second point and the second requirement that must be satisfied before the trial court can conclude that an accused has effectively waived the right to counsel: a written waiver of counsel mandated by Section 600.051. Section 600.051 mandates execution of a written right to counsel waiver. Peck, 671 S.W.3d at 409. Section 600.051.1 outlines the required contents of the written waiver-of- counsel form, which is to be signed before and witnessed by the judge or clerk of the court

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and read by or to the defendant before signing. 4 Ndon, 583 S.W.3d at 155. "The written waiver required by Section 600.051 provides objective assurance that the defendant's waiver is knowing and voluntary." Id. at 156 (internal quotation omitted). Again, "[t]he State bears the burden to prove that an unrepresented defendant waived the right to counsel." Teter, 665 S.W.3d at 313; Cothran, 715 S.W.3d at 614. The State must demonstrate compliance with the written waiver requirement in Section 600.051 and that the defendant was afforded a Faretta hearing. Id. The State candidly admits "there was no written waiver of counsel given to [Ms. Speer], nor did she sign any written waiver of counsel in connection to the underlying criminal case." Indeed, the record does not contain a written waiver-of-counsel form signed by Ms. Speer. And nothing in the record suggests the trial court ever presented Ms. Speer with a written waiver-of-counsel form or asked her to sign a waiver form.

4 Section 600.051.1 specifies: 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, providing further that the waiver contains at least the following information which the defendant has read or which has been read to the defendant before the signing thereof: (1) That the defendant has been charged with the offense of .......... (nature of charge must be inserted before signing); (2) That the defendant has a right to a trial on the charge and further that the defendant has a right to a trial by a jury; (3) That the maximum possible sentence on the charge is .......... imprisonment in jail and a fine in the amount of .......... dollars or by both imprisonment and fine. That the minimum possible sentence is .......... imprisonment in jail or by a fine in the amount of .......... dollars or by both such confinement and fine; (4) That the defendant is aware that any recommendations by a prosecuting attorney or other prosecuting official are not binding on the judge and that any such recommendations may or may not be accepted by judge; (5) That if defendant pleads guilty or is found guilty of the charge, the judge is most likely to impose a sentence of confinement; (6) That, if indigent, and unable to employ an attorney, the defendant has a right to request the judge to appoint counsel to assist the defendant in his defense against the charge.

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Section 600.051 imposes an express duty on the trial court to secure a defendant's signature on a written waiver-of-counsel form. The trial court's failure to secure Ms. Speer's signature on a written waiver-of-counsel form is evident, obvious, and clear error that facially establishes a substantial ground for believing that a manifest injustice or miscarriage of justice has resulted, satisfying the first step of plain error review. Kunonga, 490 S.W.3d at 763-65. "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." State v. Masters, 651 S.W.3d 863, 868 (Mo. App. W.D. 2022). This demonstrated violation of Section 600.051 also sustains Ms. Speer's burden to prove the manifest injustice or miscarriage of justice required by the second step of plain error review. Kunonga, 490 S.W.3d at 770. A violation of Section 600.051 constitutes a manifest injustice or miscarriage of justice "because a violation of the right to counsel is structural error that is presumed to infect the entirety of a trial." Masters, 651 S.W.3d at 868; Kunonga, 490 S.W.3d at 770. Ms. Speer has demonstrated a plain error on the part of the trial court, affecting her substantial rights, that resulted in manifest injustice or miscarriage of justice. "Plain error review remains subject, however, to the State's burden to prove that an unrepresented defendant waived the right to counsel." Peck, 671 S.W.3d at 407. "The 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.; see also, Kunonga, 490 S.W.3d at 761 (holding

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that "in a plain error case, a defendant will not be rewarded with reversal when the State effectively demonstrates that an unpreserved violation of section 600.051 is a mere technical violation having no impact on the knowing, voluntary, and intelligent waiver of counsel because the content omitted from a written waiver form was covered, nearly verbatim, in a Faretta hearing). The State here, however, makes no such argument but instead concedes that Ms. Speer is entitled to relief on her unpreserved claim. The trial court's failure to secure Ms. Speer's signature on a written waiver-of-counsel warrants reversal. Peck, 671 S.W.3d at 409. Point II, alleging the trial court violated Section 600.051 in allowing Ms. Speer to proceed to trial pro se without ensuring she executed a written waiver of counsel prior to trial as mandated by Section 600.051, is granted. Conclusion

The trial court was charged with the function of assuring that Ms. Speer's waiver of counsel was made knowingly and intelligently. Because the trial court did not conduct a Faretta hearing, and there is no record that Ms. Speer executed a waiver of counsel form required under Section 600.051, the trial court failed to ensure that Ms. Speer's waiver of counsel was knowing and intelligent. Under these circumstances, it was error for the trial court to proceed to trial. State v. Kilburn, 941 S.W.2d 737, 744 (Mo. App. E.D. 1997). "No person may be imprisoned if he or she was unrepresented by counsel unless that person knowingly and intelligently waived counsel." State v. Smith, 697 S.W.3d 878, 883 (Mo. App. S.D. 2024). Ms. Speer is entitled to a new trial. Id.; see e.g., Sullivan, 640 S.W.3d at 159; Peck, 671 S.W.3d at 409; State v. Floyd, 635 S.W.3d

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593, 599 (Mo. App. W.D. 2021); State v. Davis, 934 S.W.2d 331, 335 (Mo. App. S.D. 1996); Hodak, 125 S.W.3d at 895 (without an inquiry on the record showing defendant understood the ramifications of the waiver of right to counsel, imposition of jail time was unconstitutional). We reverse Ms. Speer's convictions and sentences, and remand the case for a new trial. Specifically, upon remand, should Ms. Speer desire to represent herself pro se, the trial court must comply with the Due Process requirements in a manner consistent with this opinion.

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ANGELA T. QUIGLESS, JUDGE

Renee D. Hardin-Tammons, Presiding Judge, and Thomas C. Clark, II, Judge, concur.