Waiver of appointed counsel is not waiver of all counsel

James L. Sweet won in a DUI sentencing case in State v. Slick, No. 95,258 (Kan. App. July 14, 2006)(unpublished). The COA held that a prior municipal conviction should not have been used to enhance the instant DUI conviction. The COA agreed with the defense argument that, although Mr. Slick had signed a form regarding waiver of appointed counsel, he did not explicitly waive the right to counsel.

The 1992 and 1993 waivers stated: “I do not wish to have an attorney appointed by the Court but wish to retain an attorney on my own or to present my own defense and arguments to the Court. I waive my rights to have a court appointed attorney represent me.” Unlike the waiver suggested by [In re Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985)] that explicitly stated the defendant did not want retained or appointed counsel, the 1992 and 1993 waivers actually invoked the desire for retained counsel.

This is a great example of how I think prior municipal convictions that matter in criminal history should be a ripe area for litigation. See, e.g., State v. Allen.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]