Waiver of right to the assistance of counsel; Forfeited right to assistance of counsel

The court held that “defendant did not waive his right to the assistance of counsel, and the record does not support the conclusion that this right was forfeited.” Thus, it vacated his convictions and remanded. He was convicted of possession of a dangerous weapon (silencer). The prosecution contended that he “forfeited his right to counsel by engaging in dilatory conduct.” Specifically, it faulted him “for perpetually failing to retain an attorney despite repeated warnings that doing so would lead to self-representation.” The prosecution’s position was “not supported by the record.” Instead, the record suggested “that defendant was caught between a rock and a hard place because he was unable to establish eligibility for a public defender but also unable to pay a private attorney’s retainer.” While nothing in the record suggested “that the aim was to delay the proceedings, defendant was certainly responsible for the first few months of delay due to attorney turnover.” Despite the prosecution’s claim “that defendant was engaging in dilatory conduct to draw out the proceedings and delay the trial, defendant’s statements that he contacted dozens of attorneys but could not get anyone to take the case went unrebutted.” Despite openly questioning his credibility, the trial “court did nothing to assess the veracity of defendant’s statements.” Also, it was clear from the record that he “was repeatedly and persistently attempting to obtain the assistance of a public defender.” The court held that there was “nothing in the record regarding the possibility that the [trial] court could have ordered the public defender office to appoint an attorney then subsequently order defendant to compensate the public defender office upon completion of a closer examination of his finances.” In sum, it concluded that while it was possible that he “could afford an attorney but delayed the proceedings by perpetually failing to retain one, the record before us is insufficient to support such a finding.”