State v. Cash

ORDER ON PETITION FOR REHEARING

Goolsby, Judge:

Morris Winfred Cash seeks a rehearing, asserting that we either overlooked or misapprehended certain points in our opinion affirming the trial court’s determination that he knowingly and intelligently waived his right to counsel. He attacks our consideration of the several factors courts have considered in determining the issue of waiver of counsel. He complains the factors are ones used in habeas corpus proceedings where “the burden of proof is on the petitioner to show that the waiver did not meet constitutional standards.” Cash makes no express claim that these factors are not to be considered in cases involving a direct appeal of the issue, though *47the suggestion is there that he feels they should not be.

First, nothing in our opinion can fairly be viewed as indicating that we thought Cash had the burden of proof on the issue of waiver of the right to counsel. We are aware that, to establish waiver of the right to counsel, it is incumbent upon the state to prove an intentional relinquishment or abandonment of the right. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed. (2d) 424 (1977).

Second, the factors we discussed are factors that are relevant to any discussion concerned with the issue of waiver of counsel, irrespective of whether the issue arises on direct appeal or on collateral review. See, e.g., Commonwealth v. Nero, 14 Mass. App. Ct. 714, 442 N.E. (2d) 430 (1982) (a case involving a direct appeal wherein the court held there existed a sufficient basis for concluding a defendant made a knowing and intelligent choice to represent himself at trial where the defendant on the day of trial jettisoned the court-appointed counsel who had represented him up until then and elected to proceed pro se with appointed counsel standing by); Commonwealth v. Flowers, 5 Mass. App. Ct. 557, 365 N.E. (2d) 839 (1977) (a case involving a direct appeal by an armed robbery defendant wherein the court held the record showed the defendant, who fired his lawyer when the trial was about to begin, knew the problems confronting him in representing himself, had been warned of the pitfalls of proceeding without counsel, and, because he recently had been tried and sentenced for armed robbery, knew of the nature of and consequences of the charges against him), cert. denied, 434 U.S. 1077, 98 S.Ct. 1269, 55 L.Ed. (2d) 783 (1978); W. LaFave & J. Israel, Criminal Procedure § 11.3, at 490-91 (Student Ed. 1985) (“Consideration must be given to all of the surrounding circumstances, including not only the statements of the trial judge and defendant, but also the defendant’s age, mental condition, and prior experience with the criminal process, previous hearings in the case, the the general nature of the offense charged.”).

Accordingly, the petition for rehearing is

Denied.

Cureton, J., and Littlejohn, Acting J., concur.