Released for Publication February 20, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-000590-MR. JEFFERSON CIRCUIT COURT NO. 08-CR-001193.
FOR APPELLANT: Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General.
FOR APPELLEE: Kyle Anthony Burden.
Appellee, William Ayers, was an attorney licensed in Kentucky with extensive experience in the practice of criminal law. However, such knowledge appears remiss from his professional and personal choices. On April 10, 2008, a Jefferson County grand jury indicted Ayers on five counts of failure to file Kentucky tax returns for the years 2002-2006.
For the nearly two-year period between indictment and trial, Ayers appeared on his own behalf without expressing a desire for counsel until the day before a previously continued jury trial was scheduled to begin. Only at this delinquent date did Ayers request yet another continuance for the stated purpose of possibly retaining private counsel, which was overruled by the trial judge. Prior to any proof being presented at trial, the court noted the difference between typical pro se proceedings and this case, in which the defendant is an experienced criminal trial attorney and well-versed in evidence and court rules. However, no formal Faretta hearing was ever conducted at any stage of the trial court proceedings. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). At trial, evidence was presented that Ayers used his fiduciary status to launder money through clients' bank accounts. Most damning, he perpetuated his scheme through the misuse of his status as power of attorney for his client Robert Miller, a homeless man.
A Jefferson Circuit Court jury found Ayers guilty of five counts of failing to file a state tax return and recommended a sentence of three years on each count, to run concurrently. The trial court then sentenced Ayers in accord with the jury's recommendation. The Court of Appeals reversed the conviction and we granted discretionary review. The sole issue on appeal is whether the trial court's failure to conduct a Faretta hearing requires us to set aside Ayers' conviction and order a new trial. After reviewing the record and the law, we reverse the decision of the Court of Appeals and reinstate Ayers' conviction.
At the time of his conviction, Ayers had practiced criminal defense law in the Commonwealth for over fifteen years. It is undisputed that Ayers was a well-known criminal defense attorney who regularly practiced in the very court in which he was
tried and convicted. In fact, over two-hundred pages of records from the Administrative Office of the Courts detailing Ayers' appearances as counsel in criminal cases were admitted into evidence. Taken in this context, we refuse to sustain Ayers' rigid interpretation of our prior decisions requiring a Faretta hearing. Any result to the contrary would have us sanction a legal formalism over reality. " Common sense," as spoken so eloquently by former Chief Justice John Palmore, " must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins. Comm'n, 450 S.W.2d 235, 237 (Ky. 1970). Under the unique facts of this case, we hold that Ayers was not entitled to a Faretta hearing.
" The Sixth Amendment to the United States Constitution and Section Eleven of the Kentucky Constitution guarantee criminal defendants the right to counsel[.]" King v. Commonwealth, 374 S.W.3d 281, 290 (Ky. 2012). Additionally, a defendant has a constitutional right to proceed without counsel when the defendant knowingly and intelligently elects to do so. Faretta, 422 U.S. at 835. This directive is well-established in the Commonwealth. See, e.g., Depp v. Commonwealth, 278 S.W.3d 615, 619 (Ky. 2009); Grady v. Commonwealth, 325 S.W.3d 333, 342 (Ky. 2010). ...