Constitutional Law

An associate with Ford & McPartlin in Portsmouth, NH

No. 2017-0665
January 24, 2019

  • Whether there was legal error in allowing a person at trial to waive his right to counsel and represent himself.


In 1998, petitioner Kenneth Hart was arrested and charged with two counts of aggravated felonious sexual assault, one count of witness tampering, and one count of resisting arrest. He dismissed his three court-appointed attorneys and moved to represent himself at trial. The State objected to his motion. The trial court, questioning petitioner’s competency to stand trial and to waive his right to counsel, ordered a psychiatric evaluation. Dr. Drukteinis performed the evaluation and testified that petitioner had a non-specific personality disorder, was competent to stand trial, but was unable to defend himself pro se. The trial court concluded that petitioner was competent, but deferred consideration of his competency to waive his right to counsel. In an August 1999 trial, the petitioner maintained his desire to represent himself. After explaining all the relevant implications, the trial court found that the petitioner knowingly, intelligently and voluntarily waived his right to counsel and granted his motion. To assist the petitioner at trial, the trial court appointed standby counsel, who quickly expressed concern of the petitioner’s competency. The petitioner objected and the court restated its previous ruling that petitioner was competent and properly waived his right to counsel.

Following an eight-day trial, the jury convicted petitioner of all charges and the court sentenced him to 10-20 years in prison on the AFSA charge, suggested he complete the sex offender program and imposed suspended sentences on remaining convictions. Following sentencing, petitioner was appointed standby counsel to assist with his preparation of a notice of appeal. Petitioner remained unwilling to listen to counsel’s advice and failed to submit an appeal after several deadline extensions. In February 2001, the court ruled that he had waived any appeal of convictions.

The petitioner later filed several unsuccessful pro se pleadings, challenging his convictions in state and federal court. In January 2017, the petitioner filed a complaint in the superior court, understood to be a petition for a writ of habeas corpus. The court appointed counsel to represent him, who subsequently filed an amended habeas corpus petition, challenging his conviction and arguing the trial court erred in allowing the petitioner to represent himself at trial. The petitioner also argued that the trial court record does not reflect that he understood the consequence of his decision to waive his right to counsel or that he did so willingly and intelligently. The State objected.

In October 2017, the superior court denied the petition without a hearing on the grounds that the petitioner maintained his desire to proceed pro se and was made fully aware of the consequences prior to doing so. Because petitioner had been proven competent beyond a reasonable doubt to stand trial and could therefore waive his right to counsel, he could not complain of the quality of his defense. The petitioner appealed.

The petitioner argued the court should construe the appeal as a petition for a writ of coram nobis. The State argued that petitioner’s claims were moot because he completed his sentence and should be denied coram nobis relief because of his inability to justify raising the issue of competency in a timely manner or seek relief on that basis prior to the filing of his January 2017 petition. The court disagreed with the State and found that the petitioner lacked the benefits of representation. The court accepted petitioner’s argument that he was not competent to represent himself and saw no basis to bar his collateral attack. The court found that the case was not moot, regardless of the defendant’s completion of his sentences, because the sentences carried future and immediate consequences and because petitioner could file a writ of coram nobis. The court concluded there was sound reason to accept the writ of coram nobis.

The petitioner argued the habeas court did not use the correct standard of competency when it found him competent to stand trial and that the record did not establish that he understood the consequences of waiving his right to counsel. The court found that under federal law, should the defendant’s competency fall in a “grey area” where he is found competent, but circumstances exist which would impair his abilities, the state may impose counsel, but is not required to. In such cases, the standard of competency is not altered. The court also found that the petitioner waived his right to counsel only after becoming fully aware of the dangers, responsibilities, and disadvantages of doing so. The order of the habeas court was affirmed.


Christopher M. Johnson, chief appellate defender, Concord, for the petitioner. Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general), for the State.