Right to Counsel; Waiver

(a) Right to be Represented by Counsel. A defendant shall be entitled to be represented by counsel in any criminal proceeding. The right to be represented shall include the right to consult in private with an attorney or the attorney’s agent, without unnecessary delay, after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation therefor. (b) Right to Appointed Counsel. An indigent defendant shall be entitled to have an attorney appointed in any criminal proceeding which may result in punishment by loss of liberty, in any other criminal proceeding in which the court concludes that the interests of justice so require, or as required by law. The determination of the right to appointed counsel, and the appointment of such counsel, is to be made no later than at the indigent defendant’s first appearance before a judge. (c) Waiver of Right to Counsel. When the court learns that a defendant desires to act as his/her own attorney, the court shall conduct an on-the-record examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that: 1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, then the court will appoint one free of charge to defend or assist the defendant in his/her defense. 2. The defendant has the right to conduct the defense and may elect to do so and allow whatever role (s)he desires to his/her attorney. 3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself 27 within the same rules as an attorney, that these rules are not simple and to defend himself/herself will be hampered. legal advice his/her ability that without 4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant. 5. Other matters as the court deems appropriate. After informing the defendant and ascertaining that the defendant understands these matters, the court will ascertain whether the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine whether the defendant has exercised this right knowingly and voluntarily and, if so, make the finding a matter of record. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings. Additionally, the court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney. Such advisory counsel shall be given notice of all matters of which the defendant is notified. (d) Withdrawal of Waiver. A defendant may withdraw a waiver of the right to counsel at any stage of the proceedings but will not be entitled to repeat any proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. (e) Unreasonable Delay in Retaining Counsel. If a non-indigent defendant appears without counsel at any proceeding after having been given reasonable time to retain counsel, the cause may proceed. If an indigent defendant who has refused appointed counsel in order to obtain private counsel appears without counsel at any proceeding after having been given reasonable time to retain counsel, the court shall appoint counsel unless the indigent defendant waives the right under section (c). If the indigent defendant continues to refuse appointed counsel, the cause may proceed. 28 Comment