In Division STATE OF MISSOURI, ) ) Respondent, ) No. SD37513 ) v. ) Filed: January 31, 2023 ) MICHAEL EDWARD COX, ) ) Appellant. ) APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable R. Zachary Horack, Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Appellant Michael Edward Cox ("Cox") appeals from the trial court's judgment finding him guilty of three misdemeanors and one infraction, following a bench trial in which Cox represented himself.1 Before trial, Cox signed a waiver-of-counsel form, but the form did not state the offenses for which he was on trial, nor the possible maximum punishment for those offenses. There was no record of the hearing at which Cox waived his right to counsel.2

All statutory citations are to RSMo (2016), as supplemented. All rule references are to Missouri Court Rules (2022).

In two points, Cox argues the trial court plainly erred in allowing Cox to proceed to trial without counsel because Cox's written waiver did not strictly comply with the statutory requirements of section 600.051 (point 1) and the hearing on his waiver of counsel was not held on the record (point 2). Finding merit in Cox's arguments as to his misdemeanor convictions, we reverse and remand.3 We, however, affirm the judgment as to the infraction.

Standard of Review Cox acknowledges he has not preserved his objections to his waiver of counsel and seeks plain-error review under Rule 30.20 for both points. When a defendant has not preserved a claim of error, we may exercise our discretion to review the claim for plain error. Rule 30.20.

We will not review a claim for plain error "unless the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." State v. Yount, 642 S.W.3d 298, 300 (Mo. banc 2022) (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017)). A demonstrated violation of a defendant's right to counsel satisfies the defendant's burden to prove the manifest injustice or miscarriage of justice required by plain-error review.4 State v. Sullivan, 640 S.W.3d 149, 159 (Mo. App. E.D. 2022); State v. Masters, 651 S.W.3d 863, 868 (Mo. App. W.D. 2022).

Raymond Brownlee; Defendant appears in person; waives formal arraignment; plea of not guilty; waives counsel. Court Trial 07-28-21 at 2 p.m." The State did not file a respondent's brief in this case. "While there is no penalty prescribed for the failure to file a [respondent's] brief, we are required to decide the case without the benefit of that party's authorities and points of view." Gooch v. State, 353 S.W.3d 662, 665 n.3 (Mo. App. S.D. 2011) (quoting Fitzgerald v. Director of Revenue, 922 S.W.2d 478, 479 n.3 (Mo. App. [S.D.] 1996)).

Analysis The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This constitutional right extends to all offenses for which imprisonment may be imposed, including misdemeanors, like the misdemeanors in this case.5 Sullivan, 640 S.W.3d at 154. The constitutional right to counsel implicitly embodies a correlative right to waive counsel and represent oneself at trial. State v. Black, 223 S.W.3d 149, 153 (Mo. banc 2007). For a waiver of counsel to be effective, however, due process requires the waiver be made knowingly and intelligently. Sullivan, 640 S.W.3d at 154. Without a knowing and intelligent waiver, no person may be imprisoned unless he was represented by counsel at trial. Id. The State has the burden to prove a waiver of counsel is valid and that the defendant waived the right to counsel with a clear understanding of those rights and the consequences of waiving those rights. Id. at 156.

"The decision whether to allow a criminal defendant to waive the right to counsel and exercise the right of self-representation is one of the most sensitive rulings required of a trial court." Black, 223 S.W.3d at 155. Accordingly, the trial court has a duty to determine whether a knowing and intelligent waiver has been made. State v. Wilson, 816 S.W.2d 301, 305-06 (Mo. App. S.D. 1991). To properly execute this duty, a trial court must satisfy two requirements before it can conclude a defendant has effectively waived the right to counsel. State v. Ndon,

2021), the Western District of this Court applied de novo review to an unpreserved claim that the defendant's waiver of counsel was not knowing and intelligent, noting that a self-represented defendant's failure to object at trial to deficiencies in his waiver of the right to counsel is generally excused. Id. at 596.

We need not reconcile these two approaches since we would reach the same result under a de novo standard as we do under plain-error review.

Here, the waiver-of-counsel form signed by Cox did not list the offenses for which he was charged or the maximum punishment for those offenses, as required by section 600.051.1 (1) and (3). Nor is there any record reflecting Cox was apprised of his right to counsel and the difficulties that come with self-representation at trial. By not conducting a sufficient hearing on the record and not providing Cox with a waiver-of-counsel form that complied with section 600.051, the trial court failed to ensure that Cox’s waiver of counsel was knowing and intelligent. And because "[t]he right to counsel, by its nature, inherently affects the entirety of a trial[,]" a demonstrated violation of that right satisfies a defendant's burden to prove the

It was plain error for the trial court to accept Cox's written waiver of counsel that omitted his charged offenses and maximum range of punishment. Likewise, it was plain error to fail to conduct a hearing on the record to establish Cox understood his rights and the consequences of waiving those rights. Cox's points are granted as to his misdemeanor convictions.

Conclusion We reverse Cox's misdemeanor convictions and remand the cause to the trial court for further proceedings consistent with this opinion. We, however, affirm the trial court's judgment as to the infraction.

MARY W. SHEFFIELD, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, J. – CONCURS GINGER K. GOOCH, J. – CONCURS