Tooby's California Post-Conviction Relief for Immigrants

There is an unqualified right to the assistance of counsel at the sentencing hearing, as sentencing is a critical stage of the proceedings.[212]  Even if a defendant waives the right to counsel at trial, the defendant can then reassert the right to counsel during the sentencing proceedings.[213]  A defendant may waive his or her right to the assistance of counsel at sentencing, but such a waiver must be knowing and voluntary under Faretta v. California.[214]  The defendant who seeks to proceed pro se must be fully informed of the ramifications of that decision,[215] including being advised of the “three elements” of self-representation.  S/he must be “‘made aware of (1) the nature of the charges against him [or her]; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation.’”[216]  Any waiver of the right to counsel in the absence of such warnings renders the waiver unknowing and hence unconstitutional.

[212] Mempa v. Rhay, 389 U.S. 128 (1967). 

[213]  Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. 2004) (Sixth Amendment right to counsel violated when trial court denied timely request for representation at sentencing on erroneous basis that once waived, the right to counsel cannot be asserted thereafter).

[214] Faretta v. California, 422 U.S. 806 (1975). 

[215] See id. at 835 (“Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”)

[216] United States v. Hernandez, 203 F.3d 614, 624 (9th Cir. 2000).