State of Arizona v. Kevin Dunbar

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

KEVIN D UNBAR,
Appellant.

No. CR-23-0029-PR
Filed June 18, 2024

Appeal from the Superior Court in Pima County
The Honorable Catherine M. Woods, Judge
No. CR20152260-001
REMANDED

Memorandum Decision of the Court of Appeals,
Division Two
No. 2 CA-CR 21-0069
VACATED IN PART

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Alexander W. Samuels,
Principal Deputy Solicitor General, Alice M. Jones (argued), Deputy
Solicitor General, Section Chief of Criminal Appeals, Phoenix, Attorneys for
State of Arizona

Robb Holmes (argued), Assistant Legal Defender, Pima County Legal
Defender’s Office, Tucson, Attorneys for Kevin Dunbar

Laila Ikram (argued), Mikel Steinfeld, Attorneys for Amicus Curiae
Arizona Attorneys for Criminal Justice
 STATE V. KEVIN DUNBAR
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
BOLICK, LOPEZ, and KING joined. JUSTICE MONTGOMERY dissenting
in part and concurring in part.

JUSTICE BEENE, Opinion of the Court:

¶1 Appellate courts review objected-to error that occurs during
criminal trial proceedings under either structural error or harmless error
review. When a court finds structural error, the verdict or sentence of the
defendant—whichever is challenged—is automatically reversed. See Greer
v. United States, 593 U.S. 503, 513 (2021). But if the error is categorized as
harmless error, the state must show beyond a reasonable doubt that the
error did not contribute to the verdict or sentence. See Weaver v.
Massachusetts, 582 U.S. 286, 294 (2017).

¶2 Kevin Dunbar—who was convicted of multiple felonies but
whose sentence was overturned on appeal—asked to represent himself in
the final stages of his resentencing. The trial court denied Dunbar’s request
and subsequently sentenced him to prison.

¶3 Dunbar appealed. The court of appeals concluded that the trial
court’s denial of Dunbar’s request to represent himself constituted
structural error and thus remanded the case to the trial court to reconsider
his request. In this case, we decide whether the denial of the right to
self-representation at sentencing is amenable to harmless error—rather
than structural error—review.

¶4 For the reasons announced in this Opinion, we hold that
erroneous denials of the right to self-representation at sentencing constitute
structural error. However, we also recognize that not all denials of
self-representation requests are erroneous, and we therefore clarify the
analysis a trial court must employ in determining whether it should grant
a defendant’s untimely self-representation request.

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 STATE V. KEVIN DUNBAR
Opinion of the Court

BACKGROUND

¶5 Dunbar was convicted of attempted first degree murder,
aggravated assault with a deadly weapon, kidnapping, and possession of a
deadly weapon by a prohibited possessor. State v. Dunbar (Dunbar I), 249
Ariz. 37, 42 ¶ 1 (App. 2020). Dunbar appealed his convictions and
sentences. Id. ¶ 4. He claimed, among other things, that he was denied the
right to self-representation at trial. Id. at 44 ¶ 10. The court of appeals
upheld his convictions but remanded for resentencing on different
grounds. Id. at 54 ¶ 55. In rejecting his self-representation argument, the
court found Dunbar “forfeited his right to self-representation through his
vacillating positions,” and that Dunbar had eventually signed a motion
waiving his right to self-representation. Id. at 46 ¶ 17.

¶6 At his resentencing, Dunbar was represented by counsel. After
hearing from the victim, the State, and Dunbar’s counsel, the trial court
asked if Dunbar wished to speak. Dunbar requested a continuance because
he had not had an opportunity to consult with his attorney before the
hearing. The court granted Dunbar’s request and informed him that the
continued hearing would only involve his comments regarding sentencing,
as the other parties had already been heard.

¶7 Before the continued hearing, Dunbar filed a request to proceed
pro se. At the hearing, the court denied Dunbar’s request to represent
himself. Applying the law of the case doctrine, the court reasoned that
Dunbar had forfeited his right to self-representation based on “his
vacillating position and his signed waiver,” as established in Dunbar I.
However, the court acknowledged that “it had read his two pro se
memoranda on sentencing and would take those into account.”

¶8 Dunbar objected to the court’s ruling. He informed the court that
he still had not spoken to counsel and that he disagreed with his counsel’s
position regarding sentencing. The court allowed a recess so Dunbar could
speak with his attorney. After reconvening the hearing, and after hearing
from Dunbar, the court pronounced the sentence.

¶9 Dunbar appealed, arguing that his sentence should be vacated
because he was denied the right to self-representation at resentencing. See
State v. Dunbar (Dunbar II), No. 2 CA-CR 2021-0069, 2023 WL 126419, at *1
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 STATE V. KEVIN DUNBAR
Opinion of the Court

¶1 (Ariz. App. Jan. 6, 2023) (mem. decision). In a split decision, the court
of appeals concluded that the trial court’s denial of Dunbar’s right to
self-representation at sentencing constituted structural error. Id. at *4 ¶ 16.
The dissenting judge asserted that the trial court’s denial of
self-representation was not structural error and should thus be evaluated
for harmless error. Id. at *6 ¶ 26 (Brearcliffe, J., concurring in part and
dissenting in part).

¶10 The court of appeals also concluded that the trial court failed to
properly analyze Dunbar’s request to represent himself. Id. at *4 ¶ 20.
Though the court found that Dunbar’s request was untimely, it remanded
to the trial court to determine whether Dunbar’s request should have been
granted. Id. The court of appeals instructed the trial court to make this
determination by considering the factors enunciated in State v. De Nistor, 143 Ariz. 407 (1985). Dunbar II, 2023 WL 126419, at *4 ¶ 20. If, after
conducting this analysis, the trial court determined that Dunbar’s requests
should have been granted, the court was to vacate his sentences and
schedule a resentencing. Id.

¶11 The State appealed and we granted review to answer a recurring
question of statewide importance in criminal cases: “Is the denial of the
right to self-representation at sentencing amenable to harmless error, rather
than structural error, review?” We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution.

DISCUSSION

¶12 This Court reviews questions of law de novo. State v. Smith, 215
Ariz. 221, 227 ¶ 14 (2007); State v. Glassel, 211 Ariz. 33, 50 ¶ 59 (2005)
(applying the Sixth Amendment). 1

1 We limit our analysis to applying the United States Constitution, rather
than article 2, section 24 of the Arizona Constitution, because only
amici—neither Dunbar nor the State—raised it. See Brionna J. v. Dep’t of
Child Safety, 255 Ariz. 471, 479 ¶ 37 (2023) (declining to address an issue
raised by amici because it “would expand the issues on appeal and address
an argument not made by either party”).
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 STATE V. KEVIN DUNBAR
Opinion of the Court

I.

¶13 The right to counsel guaranteed under the Sixth Amendment
of the United States Constitution includes an accused’s right to
self-representation. Faretta v. California, 422 U.S. 806, 819 (1975); see also U.S.
Const. amends. VI, XIV. This right also extends to representing oneself at
sentencing. See Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000)
(“There is also no question that [the defendant] had a correlative right to
waive assistance of counsel and represent himself [at his sentencing].”).

¶14 As previously noted, when it comes to constitutional errors
that occur during a criminal proceeding, courts generally analyze the error
to determine whether it was harmless. See Arizona v. Fulminante, 499 U.S.
279, 306 (1991). Under the harmless error standard, if the state can show
beyond a reasonable doubt that the error did not contribute to the verdict,
the defendant’s conviction or sentence will not be reversed. See Weaver, 582
U.S. at 294. In contrast, a structural error entitles the defendant to
“automatic reversal without any inquiry into prejudice.” Id. at 290.
Structural error that occurs at sentencing requires the reviewing court to
remand for resentencing. See, e.g., United States v. Virgil, 444 F.3d 447,
456–57 (5th Cir. 2006).

¶15 “The purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should define the
framework of any criminal trial.” Weaver, 582 U.S. at 294–95. Structural
errors require reversal because they “infect[] ‘the entire trial process’ from
beginning to end.” State v. Ring, 204 Ariz. 534, 553 ¶ 46 (2003) (quoting
Neder v. United States, 527 U.S. 1, 8 (1999)). However, structural errors only
apply in “a very limited class of cases.” Johnson v. United States, 520 U.S.
461, 468 (1997); accord Ring, 204 Ariz. at 552 ¶ 46 (“The Supreme Court has
defined relatively few instances in which we should regard error as
structural.”).

¶16 Against this backdrop, structural error is readily identifiable
because it is not amenable to a harmless error analysis. See Weaver, 582 U.S.
at 295. Indeed, the United States Supreme Court has highlighted three
rationales for concluding an error is structural: (1) “the right at issue is not
designed to protect the defendant from erroneous conviction but instead
protects some other interest”; (2) “the effects of the error are simply too hard
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 STATE V. KEVIN DUNBAR
Opinion of the Court

to measure”; and (3) “the error always results in fundamental unfairness.”
Id. at 295–96. However, “[t]hese categories are not rigid. In a particular
case, more than one of these rationales may be part of the explanation for
why an error is deemed to be structural.” Id. at 296.

¶17 Supreme Court caselaw establishes that the right to
self-representation in the guilt phase falls into the first rationale, see id.
at 295, as well as the second rationale, see McKaskle v. Wiggins, 465 U.S. 168,
177 n.8 (1984) (“Since the right of self-representation is a right that when
exercised usually increases the likelihood of a trial outcome unfavorable to
the defendant, its denial is not amenable to ‘harmless error’ analysis.”). As
we now determine, both rationales that underpin the self-representation
right in the guilt phase also lend themselves to the sentencing phase. We
explore both rationales in turn.

A.

¶18 First, the right to self-representation protects the “dignity and
autonomy of the accused” rather than protecting the accused from the
possibility of erroneous conviction. See McKaskle, 465 U.S. at 176–77. The
self-representation right is also unique because a defendant’s successful
assertion of the right “usually increases the likelihood of a trial outcome
unfavorable to the defendant” because they ostensibly lose the expertise of
their counsel. See id. at 177 n.8; see also Faretta, 422 U.S. at 835 (“When an
accused manages his own defense, he relinquishes, as a purely factual
matter, many of the traditional benefits associated with the right to
counsel.”); United States v. Mendez-Sanchez, 563 F.3d 935, 945 (9th Cir. 2009)
(“[D]espite the potential ill-consequence of self-representation, we permit
it because of our society’s respect for individual dignity . . . .”).

¶19 At its core, the right to self-representation is grounded in the
“fundamental legal principle that a defendant must be allowed to make his
own choices about the proper way to protect his own liberty.” Weaver, 582
U.S. at 295. Because defendants, rather than their counsel, bear the risk and
consequences of conviction, every defendant must be free to personally
decide whether having counsel is advantageous. See Faretta, 422 U.S.
at 819–20 (“The right to defend is given directly to the accused; for it is he
who suffers the consequences if the defense fails.”). And, though
sentencing occurs after guilt is determined, a convicted person’s
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 STATE V. KEVIN DUNBAR
Opinion of the Court

liberty—especially the extent of their liberty—is still at stake. See State v.
Ritch, 160 Ariz. 495, 498 (App. 1989) (“[A] person’s liberty is at stake in a
sentencing procedure . . . .”); see also Mempa v. Rhay, 389 U.S. 128, 135 (1967)
(explaining the importance of counsel’s presence at sentencing because of
the choices over presenting one’s case at that stage). Accordingly, when it
comes to a defendant’s right of self-representation in light of the dignitary
harm it protects, there is no meaningful distinction between the guilt phase
and the sentencing phase of the trial.

B.

¶20 The erroneous denial of the right to self-representation is also
impossible to measure in terms of prejudice. As the court of appeals
majority pointed out, “a defendant’s right to self-representation is not
contingent upon a showing that he or she would have achieved a better
result than counsel.” Dunbar II, 2023 WL 126419, at *4 ¶ 16 n.1. The right is
therefore not grounded in readily measurable harm. See McKaskle, 465 U.S.
at 177 n.8.

¶21 Indeed, this second characteristic of the self-representation
right is entwined with the first principle we have already discussed: that an
individual “be allowed to make his own choices about the proper way to
protect his own liberty.” See Weaver, 582 U.S. at 295. Such a right cannot be
protected in any meaningful way by harmless error analysis because an
injury is not manifested in a conviction or a particular sentence, but instead
in the wrongful denial of a criminal defendant’s control over the case. See
id.

¶22 Overall, the erroneous denial of the right to
self-representation renders sentencing an unreliable vehicle for
determining an appropriate sentence because defendants lose the ability to
provide their own defense—a defense that may differ from what their
counsel offers. To be sure, the Supreme Court has consistently stated that
structural errors are limited only to errors that infect the entire framework
of the trial process. See id. at 294–95; Greer, 593 U.S. at 513–14; Neder, 527
U.S. at 8. And sentencing occurs at the end of the trial process, which raises
the question of how denial of the right to self-representation only at
sentencing—or, as here, the very end of the sentencing procedure—infects
the entire process. But the autonomy and dignitary harm from the denial
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 STATE V. KEVIN DUNBAR
Opinion of the Court

of self-representation can occur at any time during the trial process, and the
intangible nature of that harm means it has the potential to infect the entire
proceeding. Accordingly, we hold that a court’s denial of a defendant’s
request for self-representation at sentencing is amenable to structural error
review rather than harmless error review.

¶23 In light of our holding, we now clarify the previously
articulated standards for determining whether a criminal defendant’s
untimely request for self-representation should be granted. See De Nistor,
143 Ariz. at 412–13.

II.

¶24 Although the denial of the right to self-representation at
sentencing is reviewed for structural error, Arizona jurisprudence is clear
that not every request to self-represent should be granted. State v. Cornell, 179 Ariz. 314, 326 (1994) (“A defendant’s right to discharge counsel and
proceed in propria persona is a qualified right once trial has begun.”). The
right to self-representation does not “exist in a vacuum” because the right
is balanced against the right to a “fair trial conducted in a judicious, orderly
fashion.” De Nistor, 143 Ariz. at 412 (quoting United States v. Dujanovic, 486
F.2d 182, 186 (9th Cir. 1973)). Thus, the request must be timely and subject
to a finding that the waiver of counsel is made voluntarily and knowingly.
Id.

¶25 Such a request “is timely if it is made before the jury is
empaneled.” Id.; see, e.g., State v. Weaver, 244 Ariz. 101, 105 ¶ 10 (App. 2018)
(“[A]lthough [the defendant] made his requests at the last possible moment
before jury selection began, his requests were timely.”). If the request is
deemed untimely, a court should consider the factors outlined in De Nistor:
“[1] the reasons for the defendant’s request, [2] the quality of counsel, [3]
the defendant’s proclivity to substitute counsel, and [4] the disruption and
delay expected in the proceedings if the request were to be granted.” De
Nistor, 143 Ariz. at 413 (quoting People v. Barnes, 636 P.2d 1323, 1325 (Colo.
App. 1981)). A court should also reject a defendant’s request if the motion
for self-representation “was made for the purpose of delay.” State v.
Thompson, 190 Ariz. 555, 557 (App. 1997). Moreover, a “trial judge may
terminate self-representation by a defendant who deliberately engages in
serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 n.46.
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 STATE V. KEVIN DUNBAR
Opinion of the Court

¶26 The De Nistor analysis “gives the defendant the opportunity
to assert the right of self-representation but not at the expense of the orderly
administration of the judicial process.” 143 Ariz. at 413. This is because the
defendant’s right must be considered along with victims’ constitutional
rights and “the trial court’s prerogative to control its own docket.” See State
v. Lamar, 205 Ariz. 431, 436 ¶ 27 (2003); Ariz. Const. art. 2, § 2.1(10).

¶27 Considering the consequences of structural error, we expand
the analysis in De Nistor regarding when the denial of self-representation at
sentencing is appropriate. Specifically, a court must also consider whether
denying the defendant’s request would prevent the defendant from being
“allowed to make his own choices about the proper way to protect his own
liberty.” Weaver, 582 U.S. at 295. For example, a trial court should favorably
consider a defendant’s self-representation request if the defendant still has
the opportunity to marshal sentence-influencing evidence or make legal
arguments affecting sentencing. Conversely, a trial court should not grant
a defendant’s request if the remaining proceedings are ministerial in
nature—such that the defendant’s personal control does not have any
bearing on the protection of his or her own liberty.

¶28 A trial court’s inquiry as to what remains in a sentencing
proceeding is consistent with De Nistor’s balance between the protection of
the self-representation right and the “orderly administration of the judicial
process.” 143 Ariz. at 413. Moreover, introducing this consideration is
consistent with Supreme Court precedent. The Court in McKaskle
demonstrated that not every imposition on a defendant’s right to
self-representation is serious enough to constitute error. See 465 U.S. at
187–88. In McKaskle, the Supreme Court concluded that the participation of
advisory counsel at trial did not violate a defendant’s right to conduct his
own defense under the Sixth Amendment. Id. The Supreme Court reached
this conclusion because it determined that advisory counsel’s intrusions
were not substantial enough to undermine the primary focus of the Farretta
right— “whether the defendant had a fair chance to present his case in his
own way.” Id. at 177.

¶29 Our dissenting colleague reads McKaskle as an endorsement
of a quasi-harmless error review for self-representation errors. Infra
¶¶ 33–34. But this reading conflates the two distinct questions that
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 STATE V. KEVIN DUNBAR
Opinion of the Court

comprise every error analysis: (1) did an error occur and, if so, (2) how is
this type of error addressed? See, e.g., State v. Escalante, 245 Ariz. 135, 142–46
¶¶ 22–42 (2018). McKaskle answered these two questions by concluding
that (1) no error had occurred when the defendant conducted his case with
standby counsel, but, if the defendant’s denial of self-representation had been
erroneous, (2) the denial would have been addressed using the structural
error standard. 465 U.S. at 177 n.8, 188.

¶30 Consistent with McKaskle, we remand to the trial court for a
determination as to whether there was error. The trial court must
determine, alongside the other De Nistor factors, whether preventing
Dunbar from representing himself at the final stage of sentencing would
have been substantial enough to interfere with his Faretta right. The
gravamen of the trial court’s inquiry should focus on whether denying
Dunbar’s motion for self-representation prevented him from making his
own choices about how to protect his own liberty. See Weaver, 582 U.S.
at 295; Part II ¶ 27; cf. McKaskle, 465 U.S. at 188. Denying a defendant the
right to self-representation when potentially sentence-influencing evidence
or arguments can still be presented is more likely to infect the entire trial
framework. Such a denial may be serious enough to adversely affect the
defendant’s autonomy over the presentation of the case and would
therefore amount to a Faretta violation. Conversely, if the remaining parts
of the trial process are ministerial in nature insofar that they require no
choice over how to present one’s case, then a denial of the right to
self-representation would not prevent a defendant from exercising his or
her right to conduct his or her own case.

CONCLUSION

¶31 We vacate paragraphs 12 through 20 of the court of appeals’
memorandum decision and remand this case to the trial court for
reconsideration of Dunbar’s motion to proceed pro se. On remand, the trial
court shall consider the De Nistor factors, including whether denying
Dunbar’s request would substantially undermine his right to present his
case at sentencing. If the trial court determines Dunbar’s motion should
have been granted, structural error has occurred, and Dunbar is entitled to
resentencing. If the trial court again determines that Dunbar’s motion
should not have been granted, Dunbar’s sentences stand.

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 STATE V. KEVIN DUNBAR
Justice Montgomery, Dissenting in Part, Concurring in Part

MONTGOMERY, J., dissenting in part, concurring in part:

¶32 I respectfully dissent from the majority analysis and
disposition regarding structural error for two reasons: 1) the United States
Supreme Court has yet to extend a structural error analysis regarding the
right to self-representation to a sentencing, let alone a resentencing,
proceeding; and, 2) if the facts and circumstances of this case are going to
be considered within the Supreme Court’s structural error jurisprudence,
then it is easily resolved by applying the guidance found in McKaskle v.
Wiggins, 465 U.S. 168 (1984). However, because I would apply State v.
Lamar, 210 Ariz. 571 (2005), to resolve this case in the first instance, I concur
in the majority’s reference to State v. De Nistor, 143 Ariz. 407 (1985), for
determining whether Dunbar’s right to self-representation was violated.

I. The Majority Needlessly Extends Federal Supreme Court Caselaw

¶33 Previously, this Court has declared that we are bound to
follow “applicable holdings of United States Supreme Court decisions.”
State v. Soto-Fong, 250 Ariz. 1, 9 ¶ 32 (2020); see also State v. Anderson, 547
P.3d 345, 354 ¶ 39 (Ariz. 2024) (Beene, J., dissenting) (“[W]e are bound by
the Supreme Court’s interpretation of the Sixth Amendment . . . .”). “Nor
may we anticipate or assume that the Supreme Court will overturn or alter
its established precedent.” State v. Bush, 244 Ariz. 575, 598 ¶ 103 (2018); see
also Hohn v. United States, 524 U.S. 236, 252–53 (1998) (stating that the
Court’s “decisions remain binding precedent” until the Court “see[s] fit to
reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing vitality”); Soto-Fong, 250 Ariz. at 8–9 ¶ 31
(declining to expand Eighth Amendment analysis beyond that of the
Supreme Court in juvenile criminal sentencing and observing that Supreme
Court had yet to “squarely address[] whether consecutive sentences should
be considered in a proportionality review of an adult offender’s sentence”).
Thus, unless and until the federal Supreme Court addresses how structural
error review under these circumstances applies in the sentencing context,
especially in light of the problems set forth next, we should not do so.

¶34 In the course of applying McKaskle and combining it with
Weaver v. Massachusetts, 582 U.S. 286 (2017), to render the denial of the right
to self-representation in the sentencing phase subject to structural error

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 STATE V. KEVIN DUNBAR
Justice Montgomery, Dissenting in Part, Concurring in Part

review, the majority runs into several conflicts inherent in the Supreme
Court’s treatment of Faretta rights and error review. Importantly, the
Supreme Court relied on the trial record in McKaskle to conclude that the
defendant’s Faretta rights were vindicated. McKaskle, 465 U.S. at 181. Yet,
reviewing the record is at the heart of harmless error review. See Delaware
v. Van Arsdall, 475 U.S. 673, 681 (1986) (reaffirming “the principle that an
otherwise valid conviction should not be set aside if the reviewing court
may confidently say, on the whole record, that the constitutional error was
harmless beyond a reasonable doubt”); United States v. Hasting, 461 U.S. 499,
510 (1983) (discussing authority to review the record to determine whether
an error was harmless); see also Lamar, 210 Ariz. at 573 ¶ 1 (reviewing the
record to determine whether an error was harmless or not). And, at the
same time, the Supreme Court stated that the denial of Faretta rights in the
course of a trial cannot be harmless. McKaskle, 465 U.S. at 177 n.8.
Compounding the conflict is that Weaver’s structural error rationale
presumes structural error “def[ies] analysis by harmless error standards.”
Weaver, 582 U.S. at 295 (alteration in original) (quoting Arizona v.
Fulminante, 499 U.S. 279, 309 (1991)).

¶35 How can an appellate court review the record to conclude that
Faretta rights, though violated, were nonetheless vindicated if the violation
constitutes structural error? The Supreme Court has yet to even try and
clarify this conundrum. Notably, Weaver merely quotes McKaskle in
observing that a defendant’s exercise of the right to present his own defense
“usually increases the likelihood of a trial outcome unfavorable to the
defendant.” Id. at 295 (quoting McKaskle, 465 U.S. at 177 n.8). Weaver did
not even address the ability to vindicate Faretta rights nor try to harmonize
its own holding with that of McKaskle on that point.

¶36 Regardless, the conflicts manifest in the Supreme Court’s
structural error jurisprudence need to be resolved before it is extended by
the majority to a phase of criminal proceedings the Supreme Court’s
jurisprudence has yet to encompass. Instead, I would apply the approach
first set out in State v. Lamar, 205 Ariz. 431, 435–38, ¶¶ 22–37 (2003),
supplemented, 210 Ariz. 571 (2005). Thus, I concur in the majority’s
discussion of De Nistor. And, upon review of the record and applying the
factors, I find no denial of Dunbar’s right to self-representation.

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 STATE V. KEVIN DUNBAR
Justice Montgomery, Dissenting in Part, Concurring in Part

II. McKaskle Renders Remand Unnecessary

¶37 Assuming that the right to self-representation at a
resentencing hearing is amenable to the Supreme Court’s structural error
jurisprudence, remand is still wholly unnecessary. McKaskle provides a
ready template to resolve the issue before us without much, if any, effort.

¶38 In McKaskle, the Court stated that “[i]n determining whether
a defendant’s Faretta rights have been respected, the primary focus must be
on whether the defendant had a fair chance to present his case in his own
way.” 465 U.S. at 177. And the core of a defendant’s right of
self-representation is the “right[] to make his voice heard.” Id. The Court
went on to explain that:

[A defendant’s] Faretta rights are adequately vindicated in
proceedings outside the presence of the jury if the pro se
defendant is allowed to address the court freely on his own
behalf and if disagreements between counsel and the pro se
defendant are resolved in the defendant’s favor whenever the
matter is one that would normally be left to the discretion of
counsel.

Id. at 179. The majority does not address this language in its discussion of
McKaskle.

¶39 The Supreme Court found no error occurred because the
record on appeal showed that the trial court vindicated the defendant’s
Faretta rights. Id. at 181. The Court noted that:

[Defendant] was given ample opportunity to present his own
position to the court on every matter discussed. He was given
time to think matters over, to explain his problems and
concerns informally, and to speak to the judge off the record.
Standby counsel participated actively, but for the most part in
an orderly manner. The one instance of overbearing conduct
by counsel was a direct result of [defendant’s] own indecision
as to who would question the witness on voir dire.
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 STATE V. KEVIN DUNBAR
Justice Montgomery, Dissenting in Part, Concurring in Part

[Defendant] was given abundant opportunity to argue his
contentions to the court.

Id.

¶40 Here, just as in McKaskle, the record reveals that the trial court
conducting Dunbar’s resentencing hearing vindicated his Faretta rights.
The court granted Dunbar a continuance to consult with counsel and
prepare for the hearing, considered his pro se sentencing
memoranda—which agreed with his counsel’s determinations as to
sentence length—and allowed the defendant to openly address the court.
Applying McKaskle to the virtually identical facts of this case readily leads
to the conclusion that no Faretta error occurred, and no remand is necessary.

¶41 In sum, it is not our place to divine what the high court may
do, nor our responsibility to reconcile conflicts in its caselaw. I would
therefore vacate ¶¶ 12–18 of the court of appeals memorandum decision
and, if relying on federal Supreme Court caselaw, resolve the question
before us by applying the guidance from McKaskle to find no error occurred
and affirm Dunbar’s sentence.

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