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NOT DESIGNATED FOR PUBLICATION

No. 125,961

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ANTHONY SEYMOUR,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Oral argument held March 5, 

2024. Opinion filed May 24, 2024. Reversed and remanded.

Mark T. Schoenhofer, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before GARDNER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.

PER CURIAM: Anthony Seymour appeals his convictions of aggravated 

kidnapping, rape, aggravated criminal sodomy, and aggravated robbery following a jury 

trial at which he represented himself. Seymour claims the district court violated his right 

to counsel under the Sixth Amendment to the United States Constitution by refusing his 

request for court-appointed counsel after he indicated he wanted to discharge his retained 

counsel. He also claims the district court abused its discretion by denying a continuance

to give his newly hired attorney time to prepare for trial. The State contends the district 
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court properly advised Seymour when honoring his request for self-representation that 

the trial would not be delayed solely because Seymour hired a new attorney.

Our review of the record shows that the district court gave Seymour the choice of 

continuing with his retained counsel or representing himself, but the court ignored 

Seymour's request for a court-appointed attorney because he did not show justifiable 

dissatisfaction with his retained counsel. But Kansas law states that a defendant only 

needs to show justifiable dissatisfaction with appointed counsel, not retained counsel, 

before the court should consider the defendant's request for new appointed counsel. Thus, 

the district court violated Seymour's Sixth Amendment right to counsel when it ignored 

his request for a court-appointed attorney to replace his retained counsel. And the district 

court compounded its error when Seymour asked to represent himself because the court 

failed to advise Seymour that he could change his mind about proceeding pro se and 

request a court-appointed attorney. Because Seymour was denied his constitutional right 

to counsel, we must reverse his convictions and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2019, the State charged Seymour with one count each of aggravated 

kidnapping, rape, aggravated criminal sodomy, aggravated robbery, and criminal 

possession of a weapon by a convicted felon. The State alleged that Seymour abducted 

L.F. at knifepoint while she was walking home from a grocery store, then made her 

perform oral sex on him and forcibly raped her. The weapons charge was later dismissed.

Seymour submitted a financial affidavit of indigency at his first appearance hearing. 

Although the affidavit is not in the record, the district court found that Seymour was 

indigent and appointed counsel from the public defender's office to represent Seymour.
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Seymour retains private counsel

In December 2019, Charles O'Hara entered his appearance as attorney of record.

O'Hara represented Seymour for about 13 months, during which Seymour waived his 

right to a preliminary hearing in March 2020 and then pleaded not guilty at an 

arraignment hearing in November 2020. At arraignment, the district court scheduled a 

jury trial to begin on February 8, 2021. Two weeks before the scheduled jury trial, 

O'Hara moved to withdraw as counsel. The district court granted O'Hara's motion and set 

the case for a status conference on February 26, 2021.

Seymour then hired Steven Douglas Mank, who entered his appearance on 

February 25, 2021. From the record, it appears that Seymour's family was paying for 

Mank's services. Mank represented Seymour for the next several months, during which 

the district court set jury trial control dates that were later continued at Seymour's request. 

On June 1, 2021, the district scheduled a firm jury trial date of December 6, 2021.

During Mank's representation, Seymour filed several pro se motions, leading to a 

motion for ineffective assistance of counsel filed on December 2, 2021. In the motion, 

Seymour made several complaints about Mank's representation, including that Mank had 

failed to provide discovery, investigate the case, prepare a defense, file pretrial motions, 

and communicate with Seymour about the case. Seymour asked the district court to 

remove Mank from the case and appoint a "pro bono attorney."

The district court held a hearing to consider both the State's request for a 

continuance of the jury trial due to the unavailability of a witness and Seymour's pro se 

motion for ineffective assistance of counsel. The district court began by asking Seymour 

if he was "asking to have court-appointed counsel, or are you asking for something else?" 

Seymour responded by repeating the complaints from his motion about Mank's 

representation. Mank disputed Seymour's complaints, stating that he had either provided 
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Seymour with the discovery as requested or offered to review it with him in person. At 

one point, Seymour stated Mank had told "numerous lies," then Mank immediately asked 

to withdraw from the case due to "a complete and utter breakdown of communication" 

and because Seymour had called him "a liar in open court."

The district court advised Seymour that he needed to show a justifiable 

dissatisfaction to be entitled to appointment of new counsel and that Mank had gone 

"above and beyond what was required" by providing Seymour with any discovery. 

Seymour countered that he was dissatisfied with Mank because he "made a promise" and 

then failed to follow through. The State asked for clarification on Seymour's requested 

remedy, to which Seymour stated, "I want a new lawyer. I want a pro bono lawyer, 

because I've had a public defender before." The district court ultimately found that

Seymour's complaints about Mank failed to establish "any justifiable dissatisfaction" to 

remove Mank from the case. Mank then asked the district court to find that a breakdown 

of communication had occurred. The district court responded that it understood Mank's 

concerns but still denied his request to withdraw from the case. The district court granted 

the State's request for a continuance and rescheduled the trial to February 14, 2022.

Seymour begins representing himself.

A week later, Seymour made several more pro se filings, including a 

"Memorandum" addressed to Mank stating he was being fired and that Seymour had 

advised his family to stop paying Mank. Seymour also filed a "Motion For Pro Se (Self 

Representation)," invoking his right to self-representation under the Sixth Amendment.

The district court heard Seymour's motion for self-representation on January 6, 

2022, and Mank appeared with Seymour at the hearing. The hearing began with Seymour 

affirmatively stating he wanted to act as his own attorney. The district court then stated it 
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was "required to go over what are called the Lowe factors." See State v. Lowe, 18 Kan. 

App. 2d 72, 76-77, 847 P.2d 1334 (1993). The district judge explained:

"So if a person wants to represent themselves, the district court judge is required 

to inform the defendant of the following things. What these come down to is, acting as 

your own attorney is extremely risky, and in many circumstances, is a bad idea.

"First of all, at any time if you do represent yourself, you can change your mind 

and hire an attorney to represent you. In this case, you have already hired an attorney, and 

I've denied your motion to have a court-appointed attorney because you have hired 

counsel, and I did not find that there was a ground[] for you to be dissatisfied with the 

services to the point of appointing counsel. So you've hired Mr. Mank. If you act as your 

own attorney and then change your mind, you can have Mr. Mank represent you. But, 

those are basically going to be your two choices.

"Second, I will not postpone court hearings at any time for the reason that you've 

hired a different attorney down the road. So if, down the road, you decide to hire a 

different attorney, you can do that, but it's not going to result in a delay in the trial and the 

proceedings.

"Third, I can and will terminate your self-representation if you deliberately 

engage in serious and obstructionist misconduct before the Court or in any proceeding.

"Fourth, the Court considers it detrimental for you to not employ counsel to 

represent you. Again, basically acting as your own attorney is a bad idea. That's what I 

believe 'detrimental' means.

"Fifth, if you do represent yourself, you must follow all of the legal rules that 

apply to the trial in a criminal case.

"Sixth, there the numerous dangers and disadvantages of self-representation 

including the following:

"(a) The law provides for numerous pretrial motions available to a defendant, 

which are of a technical nature, and the advantage of which you may lose if you represent 

yourself, unless you discover those on your own and file them.

"(b) Your vocabulary may impede clear communication with the court, opposing 

counsel, and the jury.

"(c) The district attorney will not assist you in defending your case.
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"(d) The Court will not act on your behalf in asserting objections or making 

appropriate motions where it would ordinarily be the duty of the attorney to call those 

matters to the Court's attention.

"(e) The rules of law are highly technical and will not be set aside because you 

are acting as your own attorney.

"(f) You may waive constitutional, statutory, or common law rights 

unknowingly.

"(g) If you are in custody, it will be difficult for you to locate witnesses, 

interview them, prepare subpoenas, and have them served.

"(h) I'm required to advise you of the maximum sentences here, which, since 

there are three severity level 1 counts, add up to well over 100 years in prison, 653 

months on a severity level 1 conviction is the maximum prison sentence, along with a 

fine of up to half a million dollars, and lifetime post-release supervision. Since there are 

multiple counts, those counts could be run consecutive, which would make the maximum 

sentence twice 653 months. That's 1,306 months. It's my understanding you're about 60 

years old, and that's well over 100 years." (Emphasis added.)

Seymour stated he had no further questions and confirmed that it was still his 

desire to act as his own attorney. Thus, the district court granted Seymour's request and 

allowed Mank to withdraw from the case. Before the hearing ended, Seymour asked the

district court to appoint an investigator, which the court noted would "effectively lead to 

a delay in the trial." After further discussion, the district court granted Seymour's request

to appoint an investigator to be paid by the Board of Indigents' Defense Services (BIDS).

A status conference was later scheduled for April 18, 2022.

At the hearing on April 18, 2022, the State began by stating it was ready to set a 

firm trial date. Seymour said he needed more time because the BIDS investigator had 

only recently contacted him and received discovery. The district court agreed to set 

another control date for June 13, 2022, which Seymour said, "should be enough time." 

Before the hearing ended, Seymour asked the district court to approve a financial 

affidavit so that he could seek a waiver of the filing fee for his offender registration in 
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another case. Seymour explained that his mother had recently passed away and he was 

trying to handle her legal affairs, so he had no money until her will was processed. The

district court agreed to approve the affidavit for Seymour's upcoming registration period, 

but the court observed that Seymour "may not be indigent in the near future, so you will 

potentially have to continue paying that fee after that."

At the June 13 hearing, Seymour explained that he planned to hire an attorney and 

that his private investigator had not begun working on his case yet. Seymour said he had 

spoken with two attorneys but was undecided on which to hire, noting that he could pay 

for an attorney "by the end of this month or the 1st of July," depending on when the 

money from his mother's will could be distributed. The district court pointed out that 

Seymour may no longer be eligible for a taxpayer-funded private investigator depending 

on how much money he received, which Seymour acknowledged by saying, "Right. 

Right." The district court then asked Seymour, "[I]f, for some reason, you cannot hire an 

attorney, are you going to represent yourself at trial?" Seymour responded affirmatively.

After further discussion about the parties' calendars, the district court set a firm 

trial date for August 1, 2022. The district court advised Seymour that "when you go in to 

hire whoever it is you're going to hire, you need to disclose to them that you decided to 

represent yourself, but I told you that if you changed your mind, you would not get a 

delay in the proceedings." Seymour countered that "[w]hoever I hire, they're not going to 

be ready," and "I know that for a fact." The district court reminded Seymour that it had 

previously advised him that there would be no postponements permitted because counsel 

was newly brought into the case. Seymour responded that he chose to represent himself 

"because of the fact Mank wasn't doing his job." Before concluding the hearing, the State 

asked the district court to set a pretrial status conference in early July "so that we can at 

least find out where he's at before we start issuing subpoenas." After consulting the 

parties, the district court scheduled a hearing for July 18, 2022.
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The district court denies a trial continuance after Seymour hires a new attorney.

Seymour then hired Mark Schoenhofer, who entered his appearance on July 13, 

2022, and promptly emailed the district court requesting a trial continuance. The district 

court continued the scheduled status conference to July 21, 2022. The State filed a written 

response opposing a continuance, referencing the previous delays and continuances that 

had resulted from Seymour deciding to fire his retained attorneys and represent himself.

At the hearing, the district court considered the parties' arguments on the request 

for a trial continuance. Schoenhofer asked the district court to continue the trial to 

December or at least "late October or November" because it was a complex case and he 

needed more time to prepare. Schoenhofer said he did not know that the district court had 

advised Seymour there would be no further continuances, stating he only learned the trial 

date just after accepting Seymour's payment. Schoenhofer said when Seymour told him 

the date of the next hearing, Schoenhofer had remarked that he would need a 

continuance, to which Seymour responded, "'I understand, and that's fine with me.'" The 

State opposed a trial continuance, pointing out that Schoenhofer was Seymour's third 

private attorney—and fourth overall—and that the district court had admonished 

Seymour that no continuances would be granted solely because he hired a new attorney. 

The State also said the victim and her family objected to any further continuances.

The district court declined to grant a trial continuance, noting its previous 

warnings and that Seymour was advised to disclose that information to any potential new 

counsel. Schoenhofer promptly moved to withdraw, explaining he would not be prepared 

to adequately represent Seymour at trial on August 1. The district court allowed 

Schoenhofer to withdraw, advising Seymour he would be proceeding pro se at trial 

"unless he finds another attorney who's willing to take the case and try it on August 1st."
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Seymour represents himself at trial and is convicted on all charges.

The jury trial commenced on August 1, 2022. Before swearing in the jury panel, 

the district court advised Seymour at the State's request that "you cannot talk to the jury 

about anything related to your self-representation, other than just telling them that you're 

acting as your own attorney." During voir dire, Seymour moved for reconsideration of the 

motion to continue the trial, arguing the court was denying his constitutional right to 

assistance of counsel and right to a fair trial by forcing him to proceed pro se. The district 

court denied the motion, finding Seymour had not shown good cause for a continuance.

As jury selection continued, some prospective jurors expressed concern that Seymour 

was representing himself at trial. After much discussion and objections from Seymour 

about what he could tell the prospective jurors, a jury was empaneled and sworn.

The trial proceeded over the next three days with Seymour representing himself. 

The State presented testimony from 16 witnesses, including L.F. and her mother; various 

City of Wichita police officers who assisted with the investigation; sexual assault nurse 

examiners who performed examinations of Seymour and L.F.; a forensic analyst who 

concluded that DNA from Seymour's saliva and hair was found on L.F.; and an employee 

of the grocery store with security footage used to identify Seymour's vehicle. The State

also admitted more than 50 exhibits, consisting of officer body cam videos and police 

reports; maps, photos, and diagrams of the areas where the incident occurred; and items 

used to identify and apprehend Seymour, such as photos L.F. used in a lineup, L.F.'s 

drawing of the knife Seymour used and the knife itself, L.F.'s vaping device found in 

Seymour's vehicle, and forensic evidence collected during the investigation.

At times during the trial, Seymour expressed frustration when the district court 

ruled in the State's favor on his evidentiary objections or sustained the State's objections 

to parts of his cross-examination. The district court admonished Seymour several times 

for failing to ask questions properly and making comments that constituted improper 
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testimony or commentary during the State's presentation of evidence. After the State 

rested, Seymour declined to testify or present additional evidence. During Seymour's 

closing argument, the district court sustained 12 of the State's objections to Seymour

mentioning facts not in evidence. The jury found Seymour guilty on all charges.

The next week, Schoenhofer re-entered his appearance as defense counsel and 

moved for a judgment of acquittal and motion for new trial on the grounds that Seymour 

was denied his constitutional right to assistance of counsel and due process. The district 

court denied Seymour's motion for a judgment of acquittal and new trial at sentencing.

The district court imposed a controlling sentence of 570 months' imprisonment. Seymour 

timely appealed the district court's judgment.

DID THE DISTRICT COURT VIOLATE SEYMOUR'S

CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL?

Seymour's appeal generally concerns his belief that he was denied his Sixth 

Amendment right to assistance of counsel because he was "forced" to represent himself at 

trial. Seymour claims the district court violated his Sixth Amendment right to counsel by 

refusing his request for court-appointed counsel after he indicated he wanted to discharge 

Mank. He also claims the district court abused its discretion by denying a continuance to 

give his newly hired attorney time to prepare for trial. The State contests Seymour's 

arguments by pointing out that he clearly and unequivocally invoked his right to selfrepresentation and was expressly advised many times that the trial would not be delayed 

solely because he changed his mind and hired a new attorney on the eve of trial.

The Sixth Amendment to the United States Constitution provides that "[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence." The Sixth Amendment guarantees criminal defendants the right 

to the assistance of legal counsel during all critical stages of a criminal proceeding. Miller 
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v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). The violation of a defendant's right to 

the assistance of counsel at trial is structural error. Errors are structural when they defy 

analysis by harmless error standards because they affect the framework within which the 

trial proceeds. State v. Johnson, 310 Kan. 909, 913-14, 453 P.3d 281 (2019). An appellate 

court exercises unlimited review over questions involving a defendant's right to counsel. 

State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902 (2018).

Seymour first claims the district court violated his Sixth Amendment right to 

counsel by refusing his request for court-appointed counsel after he indicated he wanted 

to discharge Mank. The State asserts that the district court properly denied Seymour's 

request to discharge Mank because Seymour failed to show "justifiable dissatisfaction" 

with Mank's performance as counsel. The State then points out that Seymour decided to 

represent himself and contends the district court properly advised Seymour of his rights 

and honored his request for self-representation.

Mank was Seymour's retained counsel. Seymour became dissatisfied with Mank's 

services and filed a motion for ineffective assistance of counsel. In the motion, Seymour 

asked the district court to remove Mank from the case and appoint a "pro bono attorney." 

At the hearing on December 2, 2021, when the State asked for clarification on what 

Seymour wanted, he stated, "I want a new lawyer. I want a pro bono lawyer, because I've 

had a public defender before." Seymour not only wanted Mank removed from the case, 

but he wanted the district court to appoint a pro bono lawyer because he had received a 

public defender before. The district court ultimately found that Seymour's complaints 

about Mank failed to establish justifiable dissatisfaction to remove him from the case.

The key question in this appeal is whether the district court properly refused to 

consider Seymour's request for court-appointed counsel on the ground that he failed to 

show justifiable dissatisfaction with his retained counsel, Mank. We find the district court 

erred by doing so and, in the process, violated Seymour's constitutional right to counsel.
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Under the Sixth Amendment, an indigent defendant charged with a felony or a 

serious misdemeanor crime in a state court has the unfettered right to court-appointed 

counsel. Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

But indigent defendants have no right to choose which attorney will be appointed to 

represent them. In that regard, Kansas law establishes that to warrant substitute counsel, a 

defendant must show "'justifiable dissatisfaction'" with appointed counsel. State v. 

Breitenbach, 313 Kan. 73, 90, 483 P.3d 448 (2021); State v. Sappington, 285 Kan. 158, 

166, 169 P.3d 1096 (2007). In Breitenbach, the court stated:

"'[T]o warrant substitute counsel, a defendant must show "justifiable dissatisfaction" with 

appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, 

an irreconcilable conflict, or a complete breakdown in communications between counsel 

and the defendant. But ultimately, "'[a]s long as the trial court has a reasonable basis for 

believing the attorney-client relation has not deteriorated to a point where appointed 

counsel can no longer give effective aid in the fair presentation of a defense, the court is 

justified in refusing to appoint new counsel.'" [Citations omitted.]'" (Emphases added.)

313 Kan. at 90.

But the requirement for a defendant to show justifiable dissatisfaction with 

appointed counsel to warrant substitute counsel does not apply to retained counsel.

Seymour hired Mank to represent him, and it appears that Seymour's family was paying 

for Mank's legal services. Seymour could discharge Mank without authorization from the 

court if he became dissatisfied with his counsel, and assuming Seymour was indigent, he 

could request the district court to appoint counsel for the rest of the case including the 

trial. That is what Seymour wanted to do at the hearing on December 2, 2021.

In a letter of additional authority under Supreme Court Rule 6.09 (2024 Kan. S. 

Ct. R. at 40), the State cites two cases for the proposition that "[w]hile the justifiable 

dissatisfaction standard has traditionally been applied in cases in which initial counsel 
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was appointed, this court has also applied the rule in cases in which counsel was 

retained." But a closer reading of the two cases cited by the State reveals that the cases do 

not support this claim. In State v. Moore, No. 117,282, 2018 WL 1770198, at *3-4 (Kan. 

App. 2018) (unpublished opinion), Moore argued on appeal that the district court abused 

its discretion by failing to inquire into his letter to the judge asserting that his retained 

attorney was ineffective. This court addressed the merits of the issue and found that 

"Moore's letter did not articulate a justifiable dissatisfaction with his attorney" 2018 WL 

1770198, at *4. But in the same paragraph, this court added: "Moreover, the proper 

avenue for Moore to have taken, if he so chose, was to terminate [retained counsel] and 

then ask for the appointment of new counsel or substitution of new retained counsel."

2018 WL 1770198, at *4. So the Moore panel recommended that the defendant in that 

case should have taken the action that Seymour tried to take in his case. Likewise, in 

State v. Maddox, No. 113,621, 2016 WL 7031839, at *2-3 (Kan. App. 2016) 

(unpublished opinion), Maddox argued on appeal that the district court erred in failing to 

inquire into the possibility of a conflict with his retained attorney. In rejecting the claim, 

this court pointed out that "[i]f Maddox sincerely believed that [retained counsel's] 

representation was ineffective, he could have terminated him or brought such an 

allegation to the attention of the district court either prior to or at the bench trial." 2016 

WL 7031839, at *3.

We find the district court erred by refusing Seymour's request to discharge Mank 

because Seymour could not show justifiable dissatisfaction with Mank's services. 

Seymour could discharge Mank without showing a justifiable dissatisfaction and request 

appointed counsel, if indigent. The State was requesting a trial continuance due to the 

unavailability of a witness at the same hearing in which Seymour was trying to discharge 

Mank, so it cannot be said that Seymour's request for appointed counsel was merely a 

delay tactic. Along with the district court finding that Seymour failed to show "good 

cause" for the reappointment of counsel, it appears the district court was concerned about 

finding replacement counsel. At one point in the hearing, the district court commented 
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that "I don't have anybody else I can appoint on this case." The prosecutor added "we're 

very low on lawyers right now, given the fact, due to Covid." If the court believed that 

Seymour was not indigent and did not qualify for appointed counsel, there would have 

been no reason for the court to comment about the shortage of available attorneys.

Practical considerations aside, the district court should have considered Seymour's 

request for appointed counsel if he was indigent. We know that Seymour was indigent 

when the charges were filed because the district court appointed the public defender's 

office to represent him based on his affidavit of indigency. Retained counsel later entered 

an appearance for Seymour, but it appears that his family was paying for the legal 

services. Just because Seymour's family may have gratuitously paid for retained counsel 

does not mean that Seymour was no longer indigent and qualified to receive appointed 

counsel. See K.S.A. 22-4504(b) and K.A.R. 105-4-1 (district court considers defendant's

assets and income to determine indigency, not the assets of the defendant's family).

Most importantly, the district court obviously considered Seymour to be indigent 

because it granted his request for an investigator to be paid by BIDS at the hearing in 

January 2022. The district court also approved Seymour's affidavit to waive registration 

fees in another case at the hearing in April 2022. When the district court learned at that 

same hearing that Seymour might receive money from his mother's estate, it commented 

that Seymour "may not be indigent in the near future"—implying that the court believed 

Seymour was indigent then. Finally, at the June 2022 hearing, the following exchange 

took place between the court and Seymour about whether he had funds to hire counsel:

"THE COURT: So do you have the means to hire counsel? Do you have the 

money for that?

"MR. SEYMOUR: Am I—am I going to have the means? Yes.

"THE COURT: So right now, you do not?

"MR. SEYMOUR: Not—not right now, no."
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When the district court denied Seymour's request for appointed counsel in

December 2021, it did not say it was doing so because Seymour had retained counsel and 

was no longer indigent. Seymour made it clear that he wanted Mank to be replaced by a 

court-appointed attorney. If the district court had any question about Seymour's indigent 

status at that hearing, it could have asked Seymour to submit another financial affidavit. 

But the district court did not reach this step because it found that Seymour failed to show 

justifiable dissatisfaction with Mank's services as retained counsel. As we have stated, the 

district court erred in refusing Seymour's request to discharge Mank for this reason.

The State emphasizes that Seymour decided to represent himself and contends the 

district court properly advised Seymour of his rights and honored his request for selfrepresentation. The State is correct that after the district court denied Seymour's request 

to discharge Mank, Seymour filed a "Motion For Pro Se (Self Representation)," invoking 

his right to self-representation under the Sixth Amendment. The district court held a 

hearing on this motion on January 6, 2022, and advised Seymour about some of his rights 

and the pitfalls of self-representation. At the end of the hearing, the district court granted 

Seymour's request for self-representation and allowed Mank to withdraw from the case.

But, of course, this was not Seymour's first choice of action. His first choice of action 

was to discharge Mank and have him replaced with a court-appointed attorney. At the 

June 2022 hearing, Seymour reminded the district court that the only reason he chose to 

represent himself was "because of the fact Mank wasn't doing his job."

As mentioned, the district court granted Seymour's request for self-representation 

after advising him of his rights using the procedure suggested by this court in Lowe, 18 

Kan. App. 2d at 76-77; see also State v. Vann, 280 Kan. 782, 793-95, 127 P.3d 307 

(2006) (citing Lowe favorably). Our Supreme Court has said there is no checklist for a 

district court when determining whether a defendant's waiver of counsel is knowing and 

intelligent, but the circumstances must be examined in each case. State v. Burden, 311 

Kan. 859, 864, 467 P.3d 495 (2020). Still, the procedure in Lowe is thorough and used by 
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many district courts in making a record on a defendant's request for self-representation.

Significantly, the first factor identified in Lowe is that the judge should inform the 

defendant: "'1. That at any time he or she could change his or her mind and retain 

counsel to represent him or her or petition the court for appointment of counsel to 

represent him or her [to] assist with his or her defense.'" (Emphasis added.) 18 Kan. App. 

2d at 76.

But at the hearing on Seymour's motion for self-representation, the district judge

led off Seymour's rights by explaining:

"First of all, at any time if you do represent yourself, you can change your mind 

and hire an attorney to represent you. In this case, you have already hired an attorney, and 

I've denied your motion to have a court-appointed attorney because you have hired

counsel, and I did not find that there was a grounds for you to be dissatisfied with the 

services to the point of appointing counsel. So you've hired Mr. Mank. If you act as your 

own attorney and then change your mind, you can have Mr. Mank represent you. But, 

those are basically going to be your two choices." (Emphasis added.)

The district court did not explain to Seymour that if he changed his mind about 

self-representation, he could petition the court for appointment of counsel, as the right is 

stated in Lowe. Instead, the district court made it clear that Seymour's only two options 

were to represent himself or to use Mank. This warning compounded the district court's 

error in not considering Seymour's earlier request for a court-appointed attorney. The 

district court maintained this position for the rest of the case. At the June 13, 2022 

hearing, the district court asked Seymour if he would hire an attorney or represent 

himself at trial; reinforcing the fact that those were Seymour's only two options.

For these reasons, we find the district court violated Seymour's Sixth Amendment 

right to counsel when it ignored his request for a court-appointed attorney to replace 

Mank and maintained for the rest of the proceedings that Seymour's only choice was to
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represent himself or to use retained counsel. We need not address Seymour's additional 

arguments on appeal. The violation of a defendant's right to the assistance of counsel at 

trial is structural error because it affects the framework of the trial. Johnson, 310 Kan. at 

914. We realize this outcome may be viewed by some as a harsh result; structural error 

often leads to a harsh result. But there is no room for harmless error analysis, despite the 

overwhelming evidence the State may have presented establishing Seymour's guilt. We 

reverse Seymour's convictions, vacate his sentences, and remand for further proceedings.

Reversed and remanded.