good morning i'm judge gould and on my right is judge women on my left and deserving a special note of thanks is just pres now who's visiting us from stuck we have two cases that are submitted on the briefs mentioned for st to get that out of the way one is a dr let me also mention for the benefit of the lawyers the time as it's been a lot of to the case on the clock with their the time is look at total time so if the opponents lawyer plans to do a bundle argument the word should stop before all the times done and keep some powder so they can respond the court you know was obviously ad time if the judges there's a question and  well have question and beyond that i'm sort of a softy and might be able to have a minute at the end as best of people can you stay with their n and both of you get some special thanks from me also for traveling all the way from boise to help us out  i have a i have a short period to argue and i have a long record that spans more than two years and ultimately in preparing my comments i attempted to give  thousand foot view of those two and a half years and what stands out is the distinct stages of what's going on procedurally in terms of what mr sed the steps requests are and also in terms of mystery step wanted to hire private counsel and that was the theme throughout and also too there were also competency questions there was a what we call in idaho the eight eleven filed the competency to proceed to trial or to proceed in criminal proceedings specifically he was found competent and there was a question of whether he was mulling going or under presenting and eleven he seems to he gives up he's not going to be able to hire private counsel and that's where when he broaches the question of well i might as well go on with myself that he clearly throughout did not trust appointed coun appearances with counsel sensually those two issues were are on point with tamplin and the court could stop there but the case nonetheless and mystery steps requests lingered for another eighteen months there are these repeated what we call the kites kites to represent himself kites to represent himself and that st one in and eleven triggered another eight hundred and eleven proceeding he was again found competent and there was some i think in question of lingering but of course we don't have those records and he's  sentially said that the court never really addresses the question of whether or not he's competent which is contrary to the concept in indiana where the the competency is a fluctuating concept certainly mental illnesses in terms of treatment in this case i had never there is no evidence of a mental health diagnosis that i can discern there's questions of lingering and personality disorder in twenty november tw there he enters this other period where he's been told no stop asking we already we already said no stop asking and he goes on a hunger strike and stops eating and during that period there were what we call title sixty six proceedings to see if he was competent to give informed treatment in other words could he be force fed because he was going on a hunger strike because he was being forced to proceed with the attorney he did not want the those proceedings don't evidence any type of reflection on his ability to proceed pro se they reflect that he was objecting in the only way left to him after being repeatedly said no that he didn't want to proceed with it with counsel wanted to alternately he's released to hospital and restored in terms of i don't know how they what they do after somebody hasn't eaten in a while and he's better and then he continues to make the request who's the going to but usually a kind is something prisoners in the prison system it's not like a request directly to a judge is that the case here no their access to court forms or in this situation the kite itself has a spot where it where it is being directed one of the options for it to go to is the court and then they do end up at the court the court's complaint with those is that they're ex party that they weren't copied and what the court was doing with them and then was just copying counsel once he received once the court received one thank you and then in my arguments on the i believe at one point he did say that but then they were accepted after that point as well he was told not to file things without he was represented to start filing things pro se i can the court of appeals finding that he somehow waived by not requesting he had been there by the end the judge was very very frustrated with any additional requests but the judge did make that finding  that the that he had sufficient understanding to give up his right to be present and there's pros and cons with that and it's essentially a finding that he had i think that standard we equal that he was competent to represent himself there's pros and cons and he made that knowing choice that was an argument that counsel in the state appellate court had argued that this this essentially was a competency finding where as he previously said a month earlier he wasn't competent there's no way stop add the clerk good morning in may a please the court the primary issue in this case is the court of a pothole court of appeals decision that s depp's request on june th two thousand and eleven was equivocal and we have to start that analysis that examination of the idaho court of appeals decision from the underlying presumption that there is and that there is a strong presumption against waiver counsel relies extensively upon this court's decision in tamplin but if you look at the color cui in tampa and it is drastically different than in with an attorney that he had retained that was disbarred two days later but had a hearing shortly after that tampa one wanted to make sure that he was representing himself and the trial court said you don't wish to have coun appointed to represent you and tampa an unequivocal he said no the court continued it's your request to return to your status in representing yourself in this case he unequivocal stated yes and then he goes on to say i'm going to represent myself i have a right to go prop pro per at this time i'm trying to go back to  on later on and says i don't want no public defender none of the ones that you are going to appoint now let's compare that with what happened on june th at least what the yahoo court of appeals examined court of appeals focused upon the words probably i prefer i think if possible those are not unequivocal are are not unequivocal words those are equal to words and this court as well as other courts at least in the context of requesting counsel and interrogations have repeatedly said those are not really the court did admittedly after some questioning and some confusion the court did say you were saying ex parte that was the word that  step was using and the court went on to say are you saying you want to represent yourself in propre and aesthetics says improperly he parrots what the judge said i'm not convinced and i don't believe the idaho court of appeals was convinced that he understood that word and was really in fact asking unequivocal he to represent himself and above and beyond that if you look at the what took place even after that yes step continued to use the words probably there was counseling is a question at some point on this day i seem to remember the the judge saying something like if you want to represent yourself we're going to have to set that for hearing another day that was stated early on and in fact they were talking about mr rose the guardianship attorney ok was there ever a traditional forever hearing where the dangers of self representation or does advantage the dangers were ever discussed because the trial judge wasn't convinced that he wanted to represent himself in other words before we get to the question of ferrata we have to get addressed the question of whether there's an unequivocal request and in this case the idaho court of appeals looked at the entirety of the transcript all of the evidence even before the june th hearing and said when you look at all of this there was never an unequivocal request for counsel now one of the things that can be addressed in the context of not only of the colloquy took place on june th but there's also the additional  backdrop that's what the idaho court of appeals concluded it was the backdrop associated with his issues of competency to proceed as opposed to competency to represent  self and of course they are different you can be entirely competent to proceed under for red up but not competent to represent self under edwards and  court of appeals looked at that backdrop and said that backdrop all the things that had taken place to that about up to that point in time and even what had taken place after the hunger strike the sleeping on the mattress on the bed all of those the suicide attempt in the jail all of those things indicated to court to the court of appeals that there was a back drop associated with this issue of equi coupled with the notion that he was back and forth on whether he was going to retain counsel or not retained counsel keep in mind that his problem was with the public to the public defenders that he had he didn't like them and he kept asking more and more and and for change to the point that he actually threatened the original trial judge that was judge simpson and judge mitchell is the one that actually came in and towards the end of the case conducted the trial made the decisions i believe it was the day of trial december th regarding whether the court was going to  t steps request to for stand ship and the court back or even looked at everything that had happened and said yeah you can do that and you're competent to proceed but there was never a determination as to his competency to sell for a present unless the court has additional questions i would ask the court to affirm the magistrate in this case gave thank and the brief is more about the post twenty june two thousand and eleven request than it is about the prior mystery step didn't abandon his claims regarding that  i'll say that sometimes i thought that they didn't quite understand some comment i made during oral argument and to think that something could be for ever precluded in waived even though i agree presented it in a petition for review that was denied by that a supreme court it just can't be  it's not a it turns the idea of the comedy underlying exhaustion on its head i want it terms of champlin i address the similarities in my brief  i won't comment beyond that but i believe that this case is it's the there are some some factual procedural difference but the fundamental idea that wanting private counsel and not wanting the public defender doesn't make  request ambiguous friendly to say that the issue for the trial court the state trial court was equivocation is not a fair reading of the record the findings are always you're not competent whether you're competent rep resell to be to proceed as in question you can't represent yourself there was no question that he wanted to if and if there had been at that initial proceeding he certainly clarified that subs in his i want to proceed pro se i want to proceed per se those cuts are all in my excerpts oh and i want to clarify one point the nd judge judgments that counsel mentioned also covered the november two thousand and twelve hearing so that final motion to withdraw by the attorney that was representing him at that time for all the reasons in the search for the questions i asked this court to