### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 14

‐ 3010 & 14

‐ 3028

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

P ERRY H ARRINGTON

, Defendant

‐ Appellant

.

____________________

Appeals from the United States District Court for the

Central District of Illinois.

No. 12

‐ 10118

— James E. Shadid

, Chief Judge

.

____________________

A RGUED J ANUARY 27, 2016

— D ECIDED M ARCH 2, 2016

____________________

Before P OSNER

, K ANNE

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Appellant Perry Harrington

contends in this appeal that he was deprived of his right to

counsel for his sentencing hearing. Harrington had persuad

‐

ed the district court to discharge court

‐ appointed counsel

(twice) and to let him proceed pro se to make post

‐ trial mo

‐

tions. On appeal Harrington argues that he did not validly

waive his right to counsel for his sentencing hearing. We

disagree and affirm the judgment.2 Nos. 14

‐ 3010 & 14

‐ 3028

I. Factual and Procedural Background

Harrington sold cocaine to a confidential informant. He

was charged with six counts of distributing a controlled sub

‐

stance, 21 U.S.C. § 841(a)(1), (b)(1)(c), and one count of pos

‐ sessing a controlled substance with intent to distribute, 21

U.S.C. § 841(a)(1), (b)(1)(B). The district court appointed at

‐

torney William Charnock to represent Harrington at trial.

Harrington was convicted by a jury on all seven counts.

Attorney Charnock then filed a motion for acquittal or

new trial. A day later, however, the court received a letter

from Harrington saying that he believed Charnock was inef

‐

fective and asking that new counsel be appointed. Without

addressing the merits of Harrington’s accusations, the court

discharged Charnock and appointed attorney William Loef

‐

fel to represent Harrington in post

‐ trial motions and sentenc

‐ ing.

A week before the scheduled sentencing hearing, attor

‐

ney Loeffel moved for a competency evaluation. He reported

that Harrington had been exhibiting bizarre behavior. Dur

‐ ing a visit two weeks earlier, Harrington had “frequently

made comments that made no sense,” and Loeffel learned

that Harrington might have ingested cleaning solution and

deodorant in his jail cell three days after their visit, leading

jail personnel to place him on suicide watch.

At a hearing on the motion, Loeffel said that he had met

with Harrington the day before and that Harrington had

continued to appear “quite delusional.” Harrington told the

court that he opposed the motion, yet moments later re

‐

marked that attorney Loeffel and his colleagues were trying

to kill him by drugging him. Harrington told the court thatNos. 14

‐ 3010 & 14

‐ 3028 3

he had reviewed the Presentence Investigation Report (PSR)

with Loeffel and identified errors in the report, but that he

no longer wanted to be represented by Loeffel.

When the court asked Harrington who would represent

him if Loeffel did not, Harrington replied: “I’m ready to rep

‐

resent myself or I am willing to bring in other counsel.

Y [I]

will hire other counsel or you can appoint me other counsel,

but the thing about it is [Loeffel] needs not to counsel any

‐ body. He needs counseling himself.

Y And I’m ready to rep

‐

resent myself right now. You can sentence me right now.”

The judge denied Harrington’s request to relieve Loeffel.

He also granted Loeffel’s motion to have Harrington evalu

‐

ated but made clear he was doing so out of caution rather

than any genuine doubt about Harrington’s competency. It

was “more than a coincidence,” the judge said, that the issue

was first raised just two weeks before sentencing, given that

Harrington had been in custody for over a year without any

question being raised about his mental state.

After a delay for a psychological evaluation, the court

held a hearing on Harrington’s competency. A clinical psy

‐ chologist who had evaluated Harrington found no evidence

that he was suffering a mental illness and opined that he had

been malingering. The parties stipulated to the psycholo

‐ gist’s findings, and the court found Harrington competent to

proceed to sentencing.

At the competency hearing, however, Harrington again

expressed dissatisfaction with attorney Loeffel and asked

that he be replaced. Harrington complained that Loeffel had

“not brought any of my discovery out.” The judge asked

Harrington if he wanted to represent himself, and Harring

‐4 Nos. 14

‐ 3010 & 14

‐ 3028

ton said he did not. The judge then refused to remove Loef

‐

fel from the case, reminding Harrington that his first ap

‐ pointed attorney already had been replaced and saying that

Harrington had not given “any indication” why Loeffel

should not continue to represent him. The court then set a

date for a hearing on post

‐ trial motions and sentencing.

On the scheduled day, however, Harrington renewed his

request to proceed pro se. He said that he had still been

“having problems” with Loeffel and continued to say he was

not satisfied with Loeffel’s handling of discovery. The court

initially denied Harrington’s request to proceed pro se. But

the government warned that if Harrington were not permit

‐

ted to represent himself at sentencing, he could appeal on

the ground that he was denied the right to represent himself.

The court agreed: “My initial reaction was to save Mr. Har

‐ rington from himself but I can’t do that.”

The court then engaged in a colloquy with Harrington. In

response to the court’s questions, Harrington said that he

did not want to represent himself but had “no choice” if he

were going to obtain discovery. Harrington acknowledged

that he had not reviewed the sentencing guidelines or repre

‐

sented himself before, but he said that he had some prior ex

‐ perience filing and arguing post

‐ trial motions. The judge

told Harrington that he thought self

‐ representation was “as

bad an idea as you may have ever had,” adding that he did

not think Harrington would “serve yourself well.” Harring

‐

ton insisted, though, that he wanted to represent himself.

The court then allowed Loeffel to withdraw, gave Harring

‐

ton two weeks to supplement any post

‐ trial motions, and set

yet another date for a hearing on post

‐ trial motions and sen

‐ tencing.Nos. 14

‐ 3010 & 14

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At that hearing, five weeks later, Harrington argued sev

‐

eral post

‐ trial motions, all of which the court denied. The

court then announced its intention to proceed immediately

to sentencing. At that point, Harrington said he wanted to be

represented by counsel. He told the court he did not think he

was capable of representing himself, and he said that he had

agreed to do so only for the purpose of getting the “actual

issues on the record.” The court, however, determined that

Harrington’s conduct amounted to a waiver of counsel and

that he was making this request “just for the purpose of de

‐ lay.” The request for counsel, in any event, would be “fruit

‐

less” based on Harrington’s prior conduct, and the court

said that if the request were granted, the court “would simp

‐ ly address at a later date another request to have counsel

removed.”

Harrington thus represented himself at sentencing. He

called four character witnesses—his mother, father, and two

sisters—and argued that his guideline range of 360 months

to life was excessive given the quantity of cocaine base and

cocaine involved in the offense. The court sentenced him to

360 months, based primarily on the seriousness of the of

‐

fenses and Harrington’s risk of re

‐ offending.

II. Analysis

A criminal defendant is entitled under the Sixth

Amendment to the United States Constitution to waive his

right to counsel and to conduct his own defense when he

knowingly and intelligently elects to do so. Faretta v. Califor

‐

nia

, 422 U.S. 806, 835 (1975). To determine whether a defend

‐

ant’s decision to proceed pro se was knowing and intelli

‐

gent, we consider four factors, though the lines between

them are not always distinct: (1) the extent of the district6 Nos. 14

‐ 3010 & 14

‐ 3028

court’s “formal” inquiry into the defendant’s decision to rep

‐

resent himself, (2) whether other evidence in the record

shows that “the defendant understood the dangers and dis

‐ advantages of self

‐ representation,” (3) the defendant’s expe

‐

rience and background, and (4) the context of the defend

‐

ant’s choice to represent himself. United States v. Alden, 527

F.3d 653, 660 (7th Cir. 2008); United States v. Todd

, 424 F.3d

525, 530 (7th Cir. 2005). The context factor often refers to the

stage of the proceedings and circumstances that indicate the

defendant’s strategic or tactical reasons for going forward

without counsel. See, e.g., United States v. Avery

, 208 F.3d

597, 602 (7th Cir. 2000).

Harrington, represented on appeal by new counsel, ar

‐

gues that the district court erred by finding that he had

waived his right to counsel for sentencing. He begins by as

‐ serting that the first factor weighs in his favor because the

court did not conduct a formal inquiry into his decision to

proceed pro se. He argues, for instance, that the court’s in

‐ quiry was not sufficient because the court did not ask

whether he understood the charges or the penalties he was

facing. See United States v. Belanger

, 936 F.2d 916, 918 (7th

Cir. 1991) (“strongly suggesting” that district courts “at a

minimum” inform defendants of crimes with which they are

charged, nature of the charges, and possible sentences as

well as the difficulties defendants would encounter in acting

as their own counsel). He also argues that the court failed to

specify the disadvantages of self

‐ representation.

Harrington’s argument glosses over the post

‐ trial timing

of his request. “The Supreme Court has never held that

waivers of counsel at any stage of the proceedings other than

trial require such a give

‐ and

‐ take between the accused andNos. 14

‐ 3010 & 14

‐ 3028 7

someone trying to educate him about counsel’s benefits.

Y Once the trial is over, the major complexities, choices, and

risks are past.” Speights v. Frank, 361 F.3d 962, 965 (7th Cir.

2004), citing Iowa v. Tovar

, 541 U.S. 77, 89 (2004).

Harrington was already well aware of the charges and

their severity. He had already gone through trial with coun

‐

sel and been convicted of the charges. He had reviewed the

PSR with attorney Loeffel, so he was aware of the penalties

he was facing and the factors relevant to sentencing. Besides,

the judge did warn Harrington that proceeding alone was

“as bad an idea as you may have ever had” and would not

serve Harrington well. See United States v. Hoskins

, 243 F.3d

407, 409 (7th Cir. 2001) (upholding waiver of counsel after

trial where district court advised defendant that he “would

be far better off being defended by a trained lawyer” and it

would be “unwise” to defend himself given complexity of

the case).

As for the second factor, Harrington asserts that the rec

‐

ord cannot support a conclusion he understood the disad

‐

vantages of self

‐ representation. During one of the earlier sta

‐

tus conferences, though, the judge explained the sentencing

process to him. Harrington replied that he not only under

‐

stood the process but was also prepared to proceed pro se

through sentencing. During that conference the judge also

established that Harrington had reviewed the PSR with at

‐

torney Loeffel. Harrington also showed awareness of the

proceedings’ significance by raising several objections and

corrections to the PSR during the sentencing hearing.

Regarding the third factor, Harrington argues that the

court failed to ensure the voluntariness of his waiver by not

explicitly asking him on the record about his background8 Nos. 14

‐ 3010 & 14

‐ 3028

and experience. The judge did not ask Harrington about his

background, but he noted that Harrington had attained the

equivalent of a high school diploma and attended college

courses. See United States v. Sandles

, 23 F.3d 1121, 1128 (7th

Cir. 1994). Although he had never represented himself be

‐

fore, Harrington did have prior experience with the criminal

justice system (three prior felony drug convictions) that sug

‐ gested “familiarity with courtroom procedures” as well as

an “understanding of the risks involved and the nature of

the charges brought against him.” United States v. Egwaoje

,

335 F.3d 579, 585–86 (7th Cir. 2003); Todd

, 424 F.3d at 533;

Moya

‐ Gomez

, 860 F.2d 706, 736 (7th Cir. 1988).

Finally, Harrington argues that the fourth factor—the

context of his decision to proceed pro se—weighs against a

finding that his waiver was knowing and intelligent because

no evidence reflects that he was attempting to delay or ma

‐ nipulate the proceedings. Egwaoje

, 335 F.3d at 586 (conclud

‐ ing that evidence of manipulation was “strongest evidence

supporting a finding of waiver”); Sandles

, 23 F.3d at 1129.

His post

‐ trial filings, he says, show not an attempt to delay

or manipulate the court but a lack of understanding of crim

‐

inal procedure.

The district court reasonably concluded that Harrington’s

decision was strategic. Harrington explained that he dis

‐ charged both appointed attorneys because he disagreed with

their defense strategies. A defendant who waives his right to

counsel for strategic reasons tends to do so knowingly. See

United States v. Volpentesta

, 727 F.3d 666, 678 (7th Cir. 2013);

Todd

, 424 F.3d at 533; United States v. Bell

, 901 F.2d 574, 579

(7th Cir. 1990). The district court’s finding that a desire for

delay motivated Harrington’s request for counsel also “mili

‐Nos. 14

‐ 3010 & 14

‐ 3028 9

tates in favor of a knowing and intelligent waiver.” Sandles

,

23 F.3d at 1129. Harrington suggests that the court could

have appointed standby counsel if it was concerned about

his motives, but a court has no obligation to do so. See Simp

‐

son v. Battaglia

, 458 F.3d 585, 597 (7th Cir. 2006); United States

v. Beckton

, 740 F.3d 303, 307 (4th Cir. 2014); United States v.

Bova

, 350 F.3d 224, 226–27 (1st Cir. 2003); Neal v. Texas

, 870

F.2d 312, 316 (5th Cir. 1989).

To sum up, Chief Judge Shadid took sufficient steps to

ensure that Harrington’s waiver of his right to counsel was

knowing and intelligent. Unless the judge could convince

Harrington to change his mind, the judge had no choice but

to allow Harrington to proceed, as he had insisted, without

counsel. The judgment of the district court is

AFFIRMED.