explained that it had repeatedly tried to settle this case for much less clean tried to tell the cases yes the court itself in the case that that there was no evidence that mr franklin was a violent person and that for the mandatory minimum the court would have considered a lower sentence mr franklin received a twenty year sentence because his lawyers didn't gain his trust and because the court got the aca analysis wrong this court should reverse say six lawyers to gain his  there is there is another issue that is of concern to me if you would include it in your discussion and matters before read a question and in in discussing the forever question i want you sentencing question because the aca sentencing question at least a portion of it is that there was insufficient evidence at trial and so even reversing just the sentencing at the end this court would still need to decide whether or not the evidence at trial was sufficient to sustain the i don't i don't know if i understand that and tell me tell me what the basis for that because it seems like if if we agree with you on need to decide if it were to vacate on the for ready issue would be whether the requirement that the government prove that three convictions be committed on occasion is different from one another is a jury question because if that's a jury question it's undisputed that there was no evidence at his trial but that's still a c that's still a sentencing i mean whether or not aca apply i mean whether or not that provision of act is going to affect his s a sentencing matter it's a sentencing matter that depends on what evidence there was a trial but that would have to be decided as i said quote it's true that the district court could then address that particular issue well that wants it that way you seem to think that we would i'm not sure and so is there any authority your errors it just your reasoning that we would have to discuss that or get to aca i guess my reasoning the arises at sentencing that is true and so i i guess instinctually i always think that if the question is whether the jury needed to find it or not that's something that the court of the do sometimes not always decide questions that aren't evident because you come up on remand even if even if for vacating but this isn't inevitable it appears to me that's true it's not about inevitable for the number of reasons that you've identified perhaps the government will not seek the aca and perhaps the district court will address the question whether it's a jury question or not and then the additional question is so let's talk about proto because i suspect the government's going to get some questions for about your what's your best argument as to why i think that the fred argument is really twofold one is that his choice to proceed pro se was not voluntary at the time that he decided to proceed pro se or elected to proceed press say he was given an option he could proceed with the attorney he already had where there was at that point very clearly in irreconcilable disk but conkling we have to find that first to agree with you yes right if we didn't agree with you that that it was which would essentially be an a finding that the judge should have substituted counsel yet again yes or at least discussed that but mr santa himself said at that point right before mr franklin went pro se yes it's you know there's a conflict it's irreconcilable we've had it something more straightforward problem here that there was never that our case was just very specific about the need to have certain  as a whole regarding the fred as information that needs to be communicated to to the defendant mr franklin acknowledged understanding of his charges and i think the penalties at arraignment and i know that was a sometime before i think it was a year or two years before that perhaps three years before but he had reviewed the p s r at least looked like the record it supported that he had reviewed the p s r and he was pretty actively involved in his own defense so i'm just trying to see doesn't that matter i mean why should we consider that in terms of his knowledge of the nature of the charges in the penalty he clearly knew what the nature of the charges were he had already been to trial but in terms of the penalty he even said to the court you know when you're looking at twenty years your lawyer can just you know some wreckage you will not do anything he didn't express any understanding that the actual possible penalty in this case would be life plus five and then fred also requires more fred also requires a discussion about what the disadvantage is a proceeding press say were all we had here was a discussion several months earlier in which the court said it's not a good idea to be pro se but nothing specific it was quite similar in fact to the colloquy that this court said was not sufficient and i believe the case was haye's which is sort of it's not enough just to tell the defendant it's not a good idea to go pro se in addition you have to explain why that would be so in this case the court didn't never get that all he said was we've had this discussion before but in fact the court had never had that discussion so each parada for it i like i said i think that clearly he knew the nature of the charges but in terms of what the possible penalty was and the consequences of pursuing pro se that colloquy never occurred in this case if the court doesn't have any fancy for the questions about this i mean i'm going to talk about i'll go ahead talk about you and talk about i would like to know what the court would like to talk about i have i'm happy to talk about anything that the court would like me to address perhaps like sufficiently proven a whether it had occurred the jury was that race that was raised in a twenty eight day letter and i apologize that it was through a twenty eight a letter i point to a pro se submission from the defendant where he objects to a certain paragraph and p s r and that paragraph in the p s r said on three separate occasions such and such a thing occurred and his specific objection to that was that was neither admitted by me nor proved to a jury i think that's very eloquent for a pro  but as to the state law definition or proof for the defense of the offense included the date why exactly i assume it's because in some fashion or another for state court purposes you have to prove that you do have to prove that there are separate offenses by whatever the state law means a separate offense and in this instance it seems to have been days and in fact the dates were in the verdict so why is that be part of the conviction well this jury specifically was instructed that those days i understand that but but it becomes a question of what is before element or as charice purpose is part of the conviction or for want treated as an element because if it had been treated as an element the jury would have been instructed that it had to find the specific and i did it did the jury was i struck that it only had to find on or about the well first of all i don't know what that means but second of all it actually found the the verdict forms have the dates not on or about the verdict forms have the dates but in order to check yes on the verdict form the jury was instructed to use different only on or about so just as a hypothetical if the jurors all believed that the offenses occurred on september fi that's just i mean i know i'm making something up let's just say that that happen they couldn't check it all three boxes yes because they were instructed that what they needed to find a stick out one was on or about september third and as to count  that would be much more difficult we would still have the question that under washington state law the date is not an element of the if that's unless that's from trying to understand what is that there is something some background understanding in any livery a controlled substance they're talking about some something that makes and just create occasion from another time that you possess drugs for jewelry it could be who you or you sell it could be who you sell it to what could be which physical drugs they are or it could be the day now here it seems to be the day because the day or at least a version of the day it was both charged and found so why can't we regard that as an element of something about the date let's leave the on or about off for the moment ok well because washington state law tells us that the date is not an element of the if that's except in two occasions one is if there's an alibi to ok so in that occasion the date would be an element of the that's on the other if there's a statute of limitations issue right so washington lawyer answers the question for us the date is not an element of the offense and going back to our entire lineup but here there were three offenses charged in washington yes something if he has said if the defense was why didn't sell it about september fifth i sell sell that in december with that of the defense well that's not on or about i mean if most cases well but never say a date a certain element at all so it would be a defense on that theory well it would be a defense because not on or about anymore right and the fact that you just tell me that the date and no form of the date is an element of the karakoram we have questions and i'm not sure about washington law like i would be about federal law whether there's a constructive amendment because there's a notice problem right so even though it's not an element of the offense the defendant is not placed on notice that he's defending a crime in december if it says september but that's very different from saying something's an element of the offe i think that a st three judge panel could reverse its earlier it's early i should say that my instinct in this without otherwise to begin with but the more i thought of them the more i've been concerned about what it is that makes an offense an offense under state law and the fact that the date is in the verdict forms here yes it is in the verdict form but of course the jury was not instructed that it needed to frame the date so the verdict you know it's sort of like it's sort of like california berkeley let's go back to california burglary in fact quite a few california informations say unlawfully entered blah blah blah even though unlawfully is not an element and when a defendant pleads guilty he may well say i'm awfully answered but we know i asked you to come up that that unlawfully can't serve federal and i think what actually means in california doesn't meet the focus but even if it did even if that word unlawfully that was inserted into an information actually met the same thing as generic burglary we would know that that wouldn't be enough because it would not be necessary to the conviction here we know that a jury finding as to the date was not necessary to a conviction because the jury in fact made no specific finding to the dates and sophia while the federal court but it did make a specific finding us today we have to look at a jury's verdict in relation to what it was told it it needed to find right so in this particular case it was told it need to find something that occurred on or about certain dates not on a specific it wasn't told that these three need to be separate in fact i believe under washington law that would be a judge question and this this is kind of where it all lays out in the end is that if a jury didn't need to find it then the judge cannot make findings of fact that increase the sentence we know here that although the verdict form lists three separate dates that the jury did not make that finding of fact because it was not instructed it had to that  because the jury was not instructed it needed to find it by that that's a different problem anyway thank you very much for your argument and we will give you  good morning your honour's may please the court michael morton for the united states i guess i will begin with for us since that's where the court seems to be concerned there's there's no dispute that infinitely preferable for a court to engage in a formal for at inquiry before allowing a defendant to go pro se ultimately failure to do so is not itself reversible error if the record as a whole shows that the defendant made a voluntary waiver of his right to counsel and the governor would submit that all three prongs that this court asked requires a valid for about a waiver were met here both the both at arraignment and importantly in the pre sentence report the maximum possible penalties including the consecutive five year life term for this one twenty four c count where explains the defendant and prior to asking to withdraw our ass asking to go pro s the defendant indicated to the court that he had reviewed the pre sentence report and in fact had many objections ten if he had reviewed it and knew it why did he say i'm only facing twenty years over that the government had told him that we would the government was seeking the mandatory minimum  isn't that problematic i don't think it's problematic because i think it recognizes the realism of the situation i mean the defendant was not realistically facing life plus five there was no way in the world the district court was giving him life plus five so when  when judges do get forever then they don't have to really be that concerned about what the maximum penalty you know they have to explain what the maximum penalty is and did that happen here the judge did not but it was made clear in the percents report and how do you know because the print percent report says the maxim i know is that how do we know that the defendant understood then because the evidence that we see reflects that he may not have well i suppose if you're going to say that he's facing twenty  didn't understand well we don't know that's the problem and it seems like what he did that goes to the heart of forever although he did say he perfectly understood at amendment so that was two and a half years earlier i accept that but nevertheless so do you mean is there any authority with respect to that i mean i understand that because i saw that as well but it seems like that's the there is a very there is authority for the two and a half years earlier not necessarily two and a half years i mean i grant you that this is it's a tallit test and if it was just two and a half years if was just the colloquy at arraignment i think is the a much more difficult case on that pran then the refresher that happened in the pre sent report with respect to the nature of the charges i think the defense even concedes that there's no question he understood the nature of the charge as he had been through the trial so he knew the nature of the charges against him and i think it's unfair to characterize the district court's colloquy during the august two thousand three hearing on the motion withdraw as inadequately describing to mr franklin the perils of proceeding to say the court told him he would be at an extreme disadvantage because he didn't have the experience and knowledge  attorney would have but he didn't spin now i mean what are cases seemed to require is some spinning out of exactly what aspects of the trial process that matter for i e the selections and jury in this instance we have a selection the jury question but it but i suppose the fact that we're dealing with sentencing i just create issue makes it all the more important to talk about exactly what it is that it would matter to have a lawyer versus not having a lawyer well especially our i would say that the court cases actually say there's no specific litany you just have to sort of make a but the case is do you list what different than the cochlear took place that for us so it's difficult to say that we have a bunch of cases in between do we not you do and specific about what it's supposed to know and you're talking about the  most from the august one thousand two thousand and thirteen yes and then he was sentenced on february third two thousand and fourteen yes the august hearing in august was in relation to again another motion to substitute counsel what about the fact that this was only a sentencing with the basic problem i mean being realistic the basic problem of not having a lawyer is that you don't have the knowledge and experience to know how the process works and that was imparted to the defendant whether that process of a trial or sentencing the concern is the same i your lack of experience and knowledge is going to handicap you in your ability to deal with the process and the district court was quite clear to mr franklin that he would be at a disadvantage if you tried to proceed without counsel and if i if i can convince the court that the record as a whole supports the ferrara i'd like to know your position on sentencing and with that we have to address aca issues well no i mean i do have i i would insist i would urge that actually for a better right but the for other right is the right to counsel whether it's denied because i make the sentence go to trial with a lawyer i don't like or i grant the improperly grant the defendant the right to go pro se i still violated his the for red a based right to coun it's it's not ok if you're prepared to say that it's not harmless i'm just as i understand i understand the answer that would be no no no you would not necessarily have to reach any of the aka base arguments because the district court could consider them in the first instance so if you're asking would you necessarily have to reach them now now if you're going to say that he was improperly denied his friend or rights i think the aka issues become moot because recent thing has to happen and all these arguments can be litigated then so i don't think you do necessarily need to reach them were the court inclined to i would just point out that the arguments that the primary argument it's been advocated vance today though whether or not the finding of separateness is a jury question and has some is some the quote it's like we're not disputing whether or not factually the judge has enough evidence assuming it's not a jury question that the judge could find separate is the defense position seems to be that it is in fact a jury question therefore absent a jury finding bias by the federal court the judge just precluded from looking at anything and that argument is foreclose by this is a unusual case in or in that the at least one you had to see a separate occasions to days is in the jury verdict in the state court but suppose it  were if it were not in the well of moore and went to camp just apply directly no it would not and why not well for the same reason in grisel it does not apply directly or so was cited when our case law about does but it goes a step further no one disputes i don't think anyone disputes that the fencing judge can determine the statute of conviction we don't need a jury find to say that you are convicted of historical it's a historical fact unrelated to the defendant's conduct the defendant's conduct his criminal conduct is not a function of when it happened that's just a historical fact about when the crime occurred so disturbing whether or not the statute and factual disputes that can occur and they're not infrequent about where where you would a certain time on april first right yes the dip the distinction is this it is not a crime to sell drugs on april first it is a crime to sell drugs and whether that crime of selling drugs qualifies a serious drug offense or a violent felony or for the fact of whether it's april first or april second or april third and that appears in the judgment of is is irrelevant  o the underlying offense arguably and unless for some reason it's relevant is maybe it was here but it could be irrelevant and it could be that the the fact that it appears in the judgment is just referred to it has nothing to do with what was in fact case dealing with you know over breath and and trying to define what's a violent felony deals with the criminal conduct what you're not supposed to do is say ok i want to see whether the actions you took in fact satisfy the generic element of burglary are arson or what have you that's where the cancer enquiry is relevant well this is just more relevant as the way or you're now talking about i don't that it just happened that way and that that matters for some reason without ever having gone to a jury whether it happened in april say well that would happen quite often in fact in cases where there's guilty pleas right where you don't have a verdict we don't have an actual jury finding you're still going to have a judgement it's going to reflect the date of the offense you're going to have an information that reflects the date of the offense that's and this is what i was saying before that's because there are some background understanding that something has to distinguish one offense from another and for purposes of state law maybe it is the date but it's not because there's something fun in it and then it would have to go to the jury and in this instance it did go to the jury but if a didn't go of a jury at all and there was no jury verdict on it i don't see what's the difference between the date and anything else well because again well i'm i'm obviously not you know not explaining it as well as i can and of course this is not accepting my position which is that the issue in the camps is substantive i e what is the substance of what is the substance of elements of the crime and does the substance of elements of those crimes match the generic crime that is a different inquiry under the statute whether something qualifies as a violent felony or a serious drug  something happens there is the ways in which has happened and to where it happened it's when it happened they're all facts about the happening i understand that about the conviction just well i'm i did not convincing you because that is this is a historical fact divorced from the elements of the crime it is a historical fact that is unrelated to the crimes unrelated to the inquiry at issue in the camps which is the camps in all those cases deal with the question of whether or not a state offense qualifies the serious drug offense for a violent felony it doesn't deal with the separate question of what the separate statutory requirement under nine twenty for you one that the crimes be committed on occasions different from another the different from another as this court held in grisel is simply a fact of the conviction that doesn't need to be found by the jury whether there's tension between that holding and the camps it's not irreconcilable with the camps because they go to different portions of the statute ok will be the case my problem here is a defined and i want to turn to for the issue i know we three things first the government proposes that this issue is subject to harmless error analysis but this court lawyer was excused and then there was no lawyer in the courtroom for part of sentencing and the court reversed saying that structural err i know we skipped over the voluntariness issue because perhaps the court wasn't inclined to find it was involuntary i just want to point the court's attention to a part of the record where the court asked mr senator his right before mr mr frankland went pro se do you believe the communications here between you and mr franklin had broken down yes your honor and then on the next page mr stener has answered the question of whether or not communications with you has broken down to the point where he's unable to assist you further so we have a case here where the judge is found and the first lawyer the fourth lawyer has said i cannot assist him further and the only option that was left to mr franklin was continue with the lawyer who's just said he cannot assist you further who has just filed a question is whether when you are dealing with the fifth as i said before you're essentially arguing the judge should have a boy into another war the judge could have appointed another lawyer at that point he should have a point to another lawyer rather than put judge put the defendant to the choice of using this lawyer or or representing himself pro saying the question is whether at some point and this case may be a very good example of that point the judge can't do that and say you know i'm not appointing another lawyer  you have a choice you can take this lawyer or you go pro se and then do what was done here which was give a complete explanation of the problems with going pro se and then put the defendant to that choice w that be a voluntary choice your argument i gather is you know well i don't want to belabor the point infinitely if there's a breakdown in communications and the judge has to keep a point where no i don't believe that but i don't want to belabor this point i don't know that i'm going to convince this court but this is a case in which his problems with his lawyers were corroborated this lawyer did not even visit him for that time between the time of appointment to the time of the motions cut off and then after the trial four months passed and the lawyer only visited once he missed his deadline to file sensing papers and when he finally filed sensing peepers two months later they were utterly non substance so under a rule that says the court can just say ok from now on you can either go with this lawyer or have no lawyer would allow the fourth lawyer the last lawyer in the case to basically do nothing right i'm now the fifth lawyer in this case but i'm not allowed to do nothing if i decided to do nothing the court would be required to appoint another lawyer i don't want to belabor the point i think it's very clear though as the court has pointed out that he didn't get the colloquy he didn't get he didn't get the explanation as to what it was that a lawyer could do for him and in fact the government has of the week ground zero center versus united states department of the navy