Arizona Court of Appeals Division One Holds That an Individual Can Waive the Right to Counsel During an Involuntary Commitment Hearing, But a Trial Court May Deny the Right Upon Finding That the Waiver Is Not Knowing and Voluntary.

Following Jesse’s arrest on October 5, 2006, and an involuntary evaluation shortly thereafter, the Coconino County Superior Court set an involuntary commitment hearing and appointed counsel to represent Jesse. At the outset of the involuntary commitment hearing, however, Jesse requested to proceed without counsel. The trial court denied Jesse’s request, citing his attorney’s experience and Jesse’s inability to represent himself. Jesse subsequently objected, saying “this is totally unfair. This is a setup. This is crooked.” The court took exception to these comments and ordered the court reporter not to take down any more of Jesse’s comments. The court eventually found Jesse to be in need of treatment and committed him for inpatient and outpatient treatment. This appeal followed. On appeal, Jesse made two arguments: the trial court erred in refusing to allow him to represent himself and in directing the court reporter to stop transcribing the proceedings.

As pertains to Jesse’s right to counsel, the Arizona Appeals Court held that the right could not be properly waived in this case. The Court explained that due process and Arizona’s statutes governing involuntary committals undoubtedly require legal representation. In the Court’s view, however, the right to legal representation is subject to knowing, intelligent and voluntary waiver. In other words, the right to counsel during involuntary commitment proceedings is waivable so long as the person waiving the right is competent to do so and the record supports the trial court’s decision to allow the person to proceed without counsel. In making its decision, the trial court should do the following: advise the patient of the right to counsel and the consequences of waiving that right; ascertain the reason why the patient desires to represent himself; inquire as to the patient’s education, skill, or training; explore the extent to which the patient understands the involuntary commitment process, and consider any other facts pertinent to the waiver issue. The trial court must then make factual findings supporting the grant or denial of the waiver. In Jessie’s case, the Appeals Court held that although the trial court had failed to make sufficient factual findings, the record independently supported its decision to refuse Jesse’s attempted waiver.

Lastly, the Arizona Appeals Court rejected Jesse’s argument that the trial court committed reversible error when it directed the court reporter to cease taking down Jesse’s comments. While the Court agreed that trial courts do not possess discretion to ignore A.R.S. § 36-539(E)’s mandate to create a verbatim record and that the trial court in Jessie’s case violated this mandate, the Court deemed the error harmless because Jesse failed to object to the violation, to seek a new trial, and to argue that the court reporter omitted one or more pertinent statements from the record.

Judge Portley authored the opinion; Judges Thompson and Ehrlich concurred.