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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2005 Term ___________ No. 32663 ___________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee v. FRANCIS ANTHONY SANDOR, III, Defendant Below, Appellant ________________________________________________________ Appeal from the Circuit Court of Monongalia County Hon. Russell M. Clawges, Jr., Judge Case No. 01-M-AP-35 AFFIRMED ________________________________________________________ Submitted: October 4, 2005 Filed: December 1, 2005

FILED December 1, 2005
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Darrell V. McGraw, Jr. Attorney General Barbara H. Allen Managing Deputy Attorney General Benjamin M. Mishoe Third Year Law Student (Practicing Under Rule 10) Charleston, West Virginia Attorneys for Appellee JUSTICE STARCHER delivered the Opinion of the Court.

Karen L. Hall, Esq. Morgantown, West Virginia Attorney for Appellant

SYLLABUS BY THE COURT 1. A judge's decision to allow an accused to exercise his right to self-

representation is reviewed under an abuse of discretion standard. 2. "The right of self-representation is a correlative of the right to assistance

of counsel guaranteed by article III, section 14 of the West Virginia Constitution." Syllabus Point 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983). 3. "A person accused of a crime may waive his constitutional right to

assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly." Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964). 4. "A defendant in a criminal proceeding who is mentally competent and

sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial." Syllabus Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983) 5. "`The determination of whether an accused has knowingly and

intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case. The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, i

whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se.' State v. Sheppard, 172 W.Va. 656[, 671], 310 S.E.2d 173, 188 (1983) (citations omitted)." Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985). 6. "Failure to observe a constitutional right constitutes reversible error

unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). 7. When an accused chooses to proceed without the assistance of counsel,

the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused's choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.

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Starcher, J.:

This is an appeal of a conviction for misdemeanor battery from the Circuit Court of Monongalia County. In this case, after his arrest, and after being fully advised of his constitutional right to the assistance of counsel, the appellant chose to represent himself in magistrate court and was subsequently convicted of misdemeanor battery. The appellant appealed the magistrate court conviction to the circuit court. The circuit court did not advise the appellant of his right to counsel, and did not question the appellant's decision to exercise his right to self-representation before the circuit court. After a bench trial before the circuit court, the appellant was once again convicted of misdemeanor battery. We are now asked to examine the circuit judge's post-trial conclusion

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