Miss. R. Crim. P. 7.1

History

Comment: Rule 7.1 establishes guidelines for the representation of both indigent and non-indigent criminal defendants. The basis of Rule 7.1 is the right of an accused to be represented by counsel in all criminal prosecutions. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right. . . to have the assistance of counsel for his defence.”); Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . .”). For the purposes of subsection (a), the term “criminal proceeding” includes any stage of the criminal process, without regard to whether a “criminal proceeding” has or has not been commenced under Rule 2.1. The provision that a defendant may consult with the attorney’s agent is added for the attorney’s convenience. Rule 7.1(b) is adopted from Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); and Mississippi Code Section 99-15-15. See also Alabama v. Shelton, 535 U.S. 654, 661-62, 122 S. Ct. 1764, 1769-70, 152 L. Ed. 2d 888 (2002). Under section (b), there are two pertinent inquiries in determining when counsel is to be appointed to represent an indigent defendant. The first inquiry is whether the right to appointed counsel arises at all. See Dunn v. State, 693 So. 2d 1333, 1339 (Miss. 1997) (citing Scott v. Illinois, 440 U.S. 367, 374, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979)). The second inquiry is if the defendant is entitled to appointed counsel, at what point in the process is counsel to be appointed. Regarding this second inquiry, Mississippi law provides that “[t]he accused shall have such representation at every critical stage of the proceedings. . . where a substantial right may be affected.” Miss. Code Ann. § 25-32-9(2). Specifically: [u]nder Mississippi law, the right to counsel attaches earlier than does the sixth amendment right. Williamson [v. State], 512 So. 2d [868,] 876 [(Miss. 1987)]; Page v. State, 495 So. 2d 436, 439 (Miss. 1986). This right attaches “once the proceedings against the defendant reach the accusatory stage.” Williamson, 512 So. 2d at 876; Page, 495 So. 2d at 439. The “accusatory stage” is defined by Mississippi law to occur when a warrant is issued or, “by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.” Miss. Code Ann. § 99-1-7 (1972). This right to counsel [also] “attaches at the point in time when ‘the initial appearance. . . ought to have been held. . . .’” Veal [v. State], 585 So.2d [693,] 699 [(Miss. 1991)] (emphasis added). Ormond v. State, 599 So. 2d 951, 956 (Miss. 1992). See also Weeks v. State, 804 So. 2d 980, 995 (Miss. 2001); Sanders v. State, 801 So. 2d 694, 700 (Miss. 2001) (citing Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994)) (“The Sixth Amendment right to counsel attaches once the proceedings reach the accusatory stage.”). Rule 7.1(c) provides the standards for waiver of the right to counsel, applicable throughout these rules. It is derived from former Rule 8.05 of the Uniform Rules of Circuit and County Court and adopts the constitutional standard set down in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948); and Argersinger, and followed by the Mississippi Supreme Court in Conn v. State, 251 Miss. 488, 170 So. 2d 20 (1964). See also Bradley v. State, 58 So. 3d 1166, 1170 (Miss. 2011); Patton v. State, 34 So. 3d 563, 565-69 (Miss. 2010). Subsection (c) also allows, but does not require, the court to appoint advisory or standby counsel. Although a criminal defendant has an absolute right to defend pro se under the Sixth Amendment, there may be instances where a court will deem the appointment of standby counsel advisable and in the defendant’s best interest. See Patton, 34 So. 3d at 567; McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); United States v. Theriault, 474 F. 2d 359 (5th Cir. 1973), cert. denied, 411 U.S. 984 (1973). Under Rule 7.1(d), the defendant can decide at any stage of the proceedings that it was a mistake to waive counsel. The court should encourage an unrepresented defendant, at all stages, to obtain counsel. But while the defendant’s right to withdraw waiver of counsel is unlimited, a defendant is not allowed to use late appointment or retention of counsel to disrupt orderly and timely processing of the case. Thus, a defendant cannot delay a scheduled proceeding, nor repeat one already held, solely because of a change of heart concerning the need for counsel. Rule 7.1(e) protects the court against dilatory tactics by the defendant in retaining counsel while at the same time preserving the defendant’s right to counsel. See Sample v. State, 320 So. 2d 801, 804 (Miss. 1975) (“We recognize that the defendant must be given a reasonable opportunity to employ and consult with the attorney of his choosing.”). It allows an indigent defendant the opportunity to make a good faith, though unsuccessful, effort to obtain private counsel, even though the proceeding may be delayed. See McConnell v. United States, 375 F. 2d 905 (5th Cir. 1967); Cleveland v. United States, 322 F. 2d 401 (D.C. Cir. 1963), cert. denied, 375 U.S. 884 (1963).