Sims v. State

139 Nev., Advance ()pinto, 5-5
IN THE COUR.T OF APPEALS OF THE STATE OF NEVADA

TASHAMI J. SIMS, No. 84904-COA
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
DEC 07 2023
H A. BROWN
UPR E QDRT

1EF DEPUTY CLERK

Appeal from a judgment of conviction, entered pursuant to a
guilty plea, of assault with the use of a deadly weapon. Eighth Judicial
District. Court, Clark County; Jasmin D. Lilly-Spells, Judge.
Affirmed.

Zaman Legal LLC and Waleed Zaman, Las Vegas,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. 'Wolfson, District
Attorney, and Jonathan E VanBoskerck, Chief Deputy District Attorney,
Clark County,
for Respondent.

BEFORE THE COURT OF APPEALS, GII3BONS, C.J., and BULLA and
WESTBROOK, JJ.

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OF
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716109
( th 14479
OPINION
PER CURIAM:
Criminal defendants have the unqualified right to represent
themselves at trial so long as their waiver of the right to counsel is knowing,
voluntary, and intelligent. To protect this fundamental right, district courts
should generally conduct a Faretta1 canvass when a competent defendant
makes a timely and unequivocal request for self-representation. See O'Neill
v. State, 123 Nev. 9, 17, 153 P.3d 38, 43 (2007). In this case, we address, for
the first time, whether an unequivocal request for self-representation can
be subsequently abandoned by the defendant, obviating the need for a
Faretta canvass. We conclude that a defendant can abandon an unequivocal
request to represent themselves where the district court has not
conclusively denied the request and the totality of the circumstances,
including the defendant's conduct, demonstrates that the defendant has
abandoned their request. As discussed in detail below, we further conclude
that appellant Tashami J. Sims unequivocally requested to represent
himself, the district court did not conclusively deny the request, and Sims
subsequently abandoned his request. Therefore, we affirm the judgment of
conviction.
PROCEDURAL AlVD FACTUAL HISTORY
Sims pleaded guilty to assault with the use of a deadly weapon.
The district court set a sentencing date of April 25, 2022. Sims' counsel was
unable to appear on that date because of a personal matter, and an associate
of counsel's appeared instead. •At that hearing, the district court indicated
it was still waiting for an update from the mental health court as to whether

1 Faretta v. California, 422 U.S. 806 (1975).
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that specialty court would accept Sims. Based on these circumstances,
associated counsel asked that the sentencing hearing be continued for 7 to
10 days.
Sims did not want the hearing continued, and when he learned
that associated counsel was not prepared to go forward with the sentencing
on that date, Sims stated, "Okay. Well, I'll go pro per." The district court
informed Sims that sentencing was not going forward that day, and Sims
reiterated that he could represent himself at sentencing:
THE DEFENDANT: I can—I can go pro per and
then I'll go do my own sentencing. And I'll do it just
like that. 'Cause I don't want—we've been doing
this—we just waiVed it.
THE COURT: I understand Mr. Sims, but we're
only going to continue it 'till like Wednesday to see
an update. It's not going to be—
THE DEFENDANT: That's still—Your Honor, I'm
just trying to see if I got accepted. If I didn't get
accepted then I'm ready to proceed right now.
THE COURT: Okay. We are not proceeding today.
So I can continue it to Wednesday or we can
continue it for a minute for you to find out.
THE DEFENDANT: I would like—I would like to
exercise my Faretta rights
THE COURT: Mr. Sims, rt's not happening right
now.
THE DEFENDANT: So I can't—
THE COURT: Continue it to Wednesday.
THE DEFENDANT: So I can't go pro per right now?
THE COURT: No, Sir.
Two days later, Sims appeared at the continued sentencing
hearing with associated counsel• anJ before the same judge who had
presided over the previous hearing. continuance was again granted to
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allow the State to procure the victim witn.esses and for Sims to provide
further evidence to the specialty court regarding his mental health history.
Associated counsel stated he talked with Sims and they were collaborating
to get Sims' mental health records to the mental health court. The district
court asked Sims if this was correct, and he agreed. Sims did not reassert
his request to represent himself, and the sentencing hearing Was continued
a final time to May 25, 202.2.
At the final Senten.cing hearing, the:district cOurt asked'if there
was [a]ny legal reason or cause why we Can't move forWard." Counsel
answered in the negative. Shortly thereafter, Siins was allowed to sPeak,
and again, he did not reassert his request to represent himself. Instead, he
explained he has a history of drug abuse and mental health issues and that
he • Wanted ta be placed in -either the mental 'health court or - drug court.
Counsel stated that the mental health court had rejected Sims but that the
drug court had accepted'him.- and'argued. that Sims shoUld participate inthe
drug court. Although the district' CoUrt thought Sims 'could benefit' from
freatment, it determined that Sims was a danger tO society and sentenced
him to 20 to 72 months in. prison.
ANALYSIS
Sims argues the district court erred by not conducting a Faretta
canvass prior to denying his unequivocal request to represent .himself.
Criminal defendant's have a Sixth Amendment right . represent
themselves so long as the waiver Of the- right, to counsel is intelligeilt. and
volinitarY. See O'Neill, 123 Nev. at 17, 153 P.-3d at 43; Upon invocation of
the right to Self-representation, the district court should conduct a Faretta
canvass. to ensure the waiver of the right to counsel is made knowingly,
voluntarily, and intelligently. Id. "A district court may deny .a
defendant's request for self-representation where the requeSt is untithely,
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the request is equivocal, the request is made solely for the purpose of delay,
the defendant abuses his right by disrupting the judicial process, or the
defendant is incompetent to waive his right to counsel." ld. at 17, 153 P.3d
at 44 (internal quotation marks omitted).
The parties do not dispute that Sims' request to represent
himself was unequivocal. Further, the State does not allege, and the record
does not reflect, the existence of any of the reasons listed in O'Neill for
denying a defendant's request to represent themselves. Rather, the State
argues that Sims abandoned hiS request for self-representation by not
renewing the request in subsequent hearings.2 Sims replies that his failure
to reiterate his request for self-representation did not absolve the district
court of its initial duty to conduct a Faretta canvass and, in turn, the district
court's failure to conduct a canvass was reversible error.
The improper denial of a defendant's right to self-
representation at trial is a structural error that is not subject to harmless

2The State also argues that Sims is not entitled to relief because he
did not knowingly and voluntarily waive his right to counsel. In
explanation, the State emphasizes that (a) Sinis said he wanted to represent
himself in order to avoid any delay in sentencing but (b) the sentencing
court was determined to continue the hearing regardless. The State's
argument necessarily fails. It wrongly suggests 'that a defendant may
automatically negate their right to self-representation by stating a motive.
See Buhl v. Cooksey, 233 F.3d 783, 794 (3d Cir. 2000) ("[A] defendant's
constitutional right of self-representation is not automatically negated bÿ
his/her motivation for asserting it."). More importantly, the State's circular
argument overlooks that the very purpose of a Faretta canvass is to
determine whether a request for self-representation constitutes a knowing,
voluntary, and intelligent waiver of the right to counsel. See O'Neill, 123
Nev. at 17, 153 P.3d at 43. Because the purpose of the canvass is to
determine the validity of the waiver, a canvass cannot be avoided by a
predetermination that the waiver is not valid. In light of these
considerations, the State's argument is unpersuasive.
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10) I4,17B
error analysis when the error is both preserved and not abandoned. United
States v. Williams, 29 F.4th 1306, 1313 (11th Cir. 2022); see also United
States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (explaining
structural error and listing the right to self-representation as an example);
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). 1(AI-ice a defendant
affirmatively states his desire to proceed pro se, a court should cease other
business and make the required inquiry . . . ." United States v. Rice, 776
F.3d 1021, 1025 (9th Cir. 2015) (alteration in original) (quoting Raulerson
v. Wainwright, 469 U.S. 366, 369 (1984) (Marshall, J., dissenting)); see also
Batchelor v. Cain, 682 F.3d 400, 412 (5th Cir. 2012) (providing that "the
trial court should have initiated a colloquy"). However, it does not

necessarily follow that a failure to conduct a Faretta canvass is the
equivalent of denying a defendant the right of self-representation. See

Hooks v. State, 124 Nev. 48, 52, 176 P.3d 1081, 1083 (2008) (concluding that
"the district court's failure to conduct a thorough canvass does not per se
require reversal"); Hymon v. State, 121 Nev. 200, 212-13, 111 P.3d 1092,
1101 (2005); see also Rice, 776 F.3d at 1025-26 (concluding no Sixth
Amendment violation occurred despite the court's failure to immediately
conduct a Faretta canvass). Rather, "the primary focus must be on whether
the defendant had a fair chance to present his case in his own way."
McKaskle, 465 U.S. at 177.
Just as "a defendant's 'pre-trial decision to Proceed with counsel
does not constitute an absolute waiver of his right to represent himself,'
once the right, to self-representation has been asserted, it "may be waived
through conduct indicating that one is vacillating on the issue or has

abandoned one's request altogether." Williams v. Bartlett, 44 F.3d. 95, 100
(2d Cir. 1994) (quoting United States v. Matsushita, 794 F.2d 46, 51 (2d Cir.

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(th I947B
1986)); see also Brown u. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982).
This is because, whereas the right to counsel is presu.med, see U.S..Const.
amend. 6 ("In all criminal prosecutions, the accused shall enjoy the
right . . to have the Assistance of Counsel for his defence."), the right to
represent oneself must be affirmatively asserted, see O'Neill, 123 Nev. at
17, 153 P.3d. at 44 (providing a trial court may deny an equivocal request.
for self-representation.). Accordingly, it stands to reason that the right to
self-representation is more easily lost than is the right to counsel. Brown,
665 F.2d at 611 ("Since the right of 4,elf-representation is waived More easily
than the .right to coUnsel at the outset, before assertion, it is reaSonable to
conclude it is more easily waived at a later point, after assertion.").
However, as Sims points out, a defendant should not have to
continuously reassert a right in order to preserVe for review the denial of
that right. See Buhl, 233 F.3d at 796 (stating-that a defendant's failure to
renew their request for self-representation "is irrelevant because the law
irnilbses no sUch obligation as a condition precedent to preserving one s. right
to proceed pro se"). "[A] defendant is not required continually to.renew a
request once it is conclusively denied or to 'make fruitless motions or forego
cooperation with defense counsel in order to preserve the issue on .appeal.'
Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989) (quoting DorMan v.
Wainwright, 798 F.2d 1358, 1367 (11th Cir. 1986)). That is; once the district
court has conclusively denied a request .for self-representation, the issue iS
preserved for appeal. But 'where the district court has .h.ot conclusively
denied a request for self-representation, the right to self-representatiori
May be abandoned -if the defendant does not reašsert the request. See
Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000).

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Because Sims made an unequivocal request to represent
himself, the district court, ideally, should have canvassed him as to the
validity of his waiver. However, the district court did not. We therefore
must determine whether the district court conclusively denied the request
or if Sims abandoned that request.
The district court did not conclusively deny the request
First, this court must determine whether the district court
conclusively denied Sims' request to represent himself. The weight of
authority indicates that. a trial-level court conclusively denies a request for
self-representation when the reason given for denial would make any future
request futile.
For example, the United States Court of Appeals for the Ninth
Circuit reasoned that any future request by a defendant would be futile
where the lower court had "made absolutely clear that [his] first choice, self-
representation, was not an available option." United States v. Arlt, 41. F.3d
516, 522 (9th Cir. 1994). There, the lower court had denied a request for
self-representation upon finding that the defendant could not represent
himself competently because his motion was "rambling and illogical." Id. at
518. Similarly, in another case from the same circuit, the lower court denied
the defendant's request for self-representation because the defendant was
incapable of putting on an effective defense. United States v. Hernandez,
203 F.3d 614, 621-23 (9th Cir. 2000), overruled on other grounds by Indiana
v. Edwards, 554 U.S. 164. 1.77-78 (2008). The Ninth Circuit concluded that,
given the reason for the denial, "there was no reason for Hernandez to
believe that on the day of trial the judge would suddenly change his mind
and decide that Hernandez had become a competent trial advocate." Id. at
622.

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10) 1947B ADP
Other jurisdictions have employed similar reasoning. The
United States Court of Appeals for the Second Circuit held that a lower
court's ruling (that the defendant lacked the education to represent himself)
was categorical, and expressly relied on the advanced stage of proceedings
and the defendant's lack of education—obstacles that were not going to be
removed before trial." Williams, 44 F.3d at 101. And the California
Supreme Court held that a trial court ruling that a defendant could not
represent himself because he was facing the death penalty was
(4unequivocal, and foreclosed any realistic possibility defendant • would

perceive self-representation as an available option." People v. Dent, 65 P.3d
1286, 1289 (Cal. 2003).
The common theme in each of these cases is that the appellate
courts concluded that the explanation given for denying a defendant the
right of self-representation made it clear that any future request would be
futile. A person's education, ability to put on a defense, and potential
punishment are not subject to change before trial. Because• any future
requests would be futile, the lower court rulings constituted conclusive
denials of the defendants' requests for self-representation.
Conversely, courts have held that the denial of the right to•self-
representation is not conclusive when a future request would not
necessarily be futile. For example, the trial-level court does not conclusively
deny a defendant the right to self-representation when the defendant is
informed they can reassert the right at a later time. See, e.g., People v. Tena,
67 Cal. Rptr. 3d 412, 422-23 (Ct. App. 2007); Swan v. Commonwealth, 384
S.W.3d 77, 92-93 (Ky. 2012) (observing the defendant was told to consult
with counsel and to reassert the motion if necessary). A delayed ruling is
also not a conclusive denial. See, e.g., Cheney v. State, 236 So. 3d 500, 502-

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(1) 19.47B
03.(Fla. Dist. Ct. App. 2018) (concluding that there was no conclusive denial
when the defendant agrecd to continue with counsel while being evaluated
for a particular defense). In each of these examples, the reason given for
denying the defendant the right of self-representation did not. suggest that
any future request would be futile. Therefore, none of the denials
constituted conclusive denials of the defendants requests for self-
representation.
In the instant case, the'district Court's reason for denying •Sims'
request did not foreclose' the possibility that a future .request mig•ht -be
granted. Specifically, the district court denied the request "right noW,"
indicating that the request could be revisited:. And Sims appeared to
understand that he could reassert his request in the future because he
clarified that he was not being allowed to represent himself"right now." We
conclud.e • the district court's denial of Sims' oral motion for self-
representation-was not a conclusive denial because the denial Was not based
on. something that would render a future request futile.
Sims' conduct indicated he abandoned his request
Having concluded that Sims' request was unequivocal and that
the district court did not conclusively deny it, this court must n.ow consider
whether Sims' conduct after the denial demonstrated that he abandoned his
request. There .are two competing approaches to determine - whether a
defendant, through their subsequent conduct, has demonstrated they have
abandoned their request.
Some jurisdictions follow a per se rule when determining
whether .a defendant has -abandoned their right to self-representation.
Under this rule, if a defendant makes an unequivocal reqUeSt to represent
theinselves, their failure to follow up on the request when they have-the
time and oppOrtunity to do so conStitutes an• abandonment of the request.
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People v. Kenner, 272 Cal. Rptr. 551, 555 (Ct. App. 1990).3 The attraction
of this rule is that it creates an easy-to-apply, bright-line test: if the
defendant makes a request that is not conclusively denied and the
defendant does not reassert the request, it is abandoned. TWo
. considerations militate against this approach. First, such a bright-line rule
may inadvertently encourage trial courts to unduly defer ruling on a
defendant's unequivocal. request to represent themselves sim.ply because
the defendant may change their mind. Second, • by virtne of its being a
bright-line test, the per se rule does not allow for nuance or extenuating
circumStanceS.
Indeed, other jurisdictions have found the per se rule to be too
strict• and instead look to the totality of the circumstances to determine
whether a defendant has abandOned their request for self-representation.
The Arizona Court of .Appeals has ad.opted this approach and set forth
several factors tO consider, including
the defendant's opportunities to remind the court of:
. a. pending motion, defense counsel's awareness of
the motion, any affirmative conduct by the
defendant that would run counter to a desire for -
self-representation, whether the defendant waited
until after a conviction to complain ..., and the
defendant's experience in the criminal justice.
system and with waiving counsel.
McLemore, 288 P.3d. at 786. They also consider whether there was a
relatively short period of tirne between the request and subsequent hearings
such that the defendant did not. have time to forget about their request. Id.
at 786-87. Although lAcking the simplicity of a per Se rule, courts are

3It was first referred to as the. "per se" rule in State v. McLernore, 288
P.3d 775, 784-86 (Ariz. Ct. App. 2012).
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familiar with reviewing the totality of the circumstances. See, e.g., Taylor
v. State, 132 Nev. 309, 320, 371 P.3d 1036. 1044 (2016) (applying a totality
of the circumstances test to the reliability of pretrial identification
procedures); Stevenson v. State, 131 Nev. 598, 603, 354 P.3d 1277, 1281
(2015) (applying a totality of the circumstances test to determine whether
permitting withdrawal of a guilty plea before sentencing would be fair and
just); Harkins v. State, 1.22 Nev. 974, 987, 143 P.3d 706, 714 (2006)
(applying a totality of the circumstances test to determine whether a
hearsay statement is testimonial for confrontation purposes); Doyle v. State,
116 Nev. 148, 158, 995 P.2d 465, 471 (2000) (applying a totality of the
circumstances test to determine whether probable cause is present to
support a search warrant); Passama v. State, 103 Nev. 212, 214, 735 P.2d
321, 323 (1987) (applying a totality of the circumstances test to determine
whether a confession was voluntary). And it has the benefit of allowing
courts to consider circumstances unique to a particular case.
Because it is both flexible and familiar, a test that considers the
totality of the circumstances best serves the interests of both defendants
who assert their right to represent themselves and the courts. Accordingly,
we will review whether a defendant has abandoned their request for self-
representation by considering the. totality of the circumstances, including
their conduct. We further adopt the factors set forth in McLernore to guide
us in that consideration.
Applying the MeLemore factors, we conclude Sims abandoned
his request for self-representation. First, Sims had two opportunities to
remind the district court in person of his request but did not, and nothing
in the record before this court suggests that he atternpted to file a written
motion to dismiss counsel in the month. between his initial request and his

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final sentencing hearing. See EDCR 3.70 (stating a defendant who has
counsel may file a motion to withdraw counsel pursuant to N.R.Cr.P.
3(2)(B)(ii)).Second, the defense team knew of Sims' request because
associated counsel was present when Sims rnade it. Third, Sims' actions of
collaborating with counsel regarding his mental health records ran counter
to a desire to represent himself. Fourth, Sims waited until after his
conviction to complain about the denial of his request. Fifth, Sims has
experience in the criminal justice system, although the record does not
indicate whether 8ims ever sought to represent• hiniself in his prior cases.
Finally, the time between hearings was relatively short: there were only 2
days between the initial request and the next hearing and 30 days between
the initial request and sentencing, making it unlikely that Sims forgot his
expressed desire to represent himself. Thus, the totality of the
circumstances demonstrates Sims abandoned his request to represent
himself.
CONCLUSION
A defendant may abandon an unequivocal request for self-
representation where the district court did not conclusively deny the
request. And we will consider the totality of the circumstances in
determining whether a defendant has in fact abandoned such a request.
Here, Sims made an unequivocal request to represent himself, which the
district court did not conclusively deny. After considering the totality of the
circumstances, we conclude that Sims abandoned his request for self-
representation and, thus, that Sims is not entitled to relief for the district

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;(1) 1947B aitlbo
court's failure to conduct a Faretta canvass. Therefore, we affirm the
judgment of conviction.

( ALI , C.J.
Gi bons r7-4

, J.
Bulla

J.
Westbrook

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139 Nev., Advance ()pinto, 5-5
IN THE COUR.T OF APPEALS OF THE STATE OF NEVADA

TASHAMI J. SIMS, No. 84904-COA
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
DEC 07 2023
H A. BROWN
UPR E QDRT

1EF DEPUTY CLERK

Appeal from a judgment of conviction, entered pursuant to a
guilty plea, of assault with the use of a deadly weapon. Eighth Judicial
District. Court, Clark County; Jasmin D. Lilly-Spells, Judge.
Affirmed.

Zaman Legal LLC and Waleed Zaman, Las Vegas,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. 'Wolfson, District
Attorney, and Jonathan E VanBoskerck, Chief Deputy District Attorney,
Clark County,
for Respondent.

BEFORE THE COURT OF APPEALS, GII3BONS, C.J., and BULLA and
WESTBROOK, JJ.

COURT OF APPEALS
OF
NEVADA
716109
( th 14479
OPINION
PER CURIAM:
Criminal defendants have the unqualified right to represent
themselves at trial so long as their waiver of the right to counsel is knowing,
voluntary, and intelligent. To protect this fundamental right, district courts
should generally conduct a Faretta1 canvass when a competent defendant
makes a timely and unequivocal request for self-representation. See O'Neill
v. State, 123 Nev. 9, 17, 153 P.3d 38, 43 (2007). In this case, we address, for
the first time, whether an unequivocal request for self-representation can
be subsequently abandoned by the defendant, obviating the need for a
Faretta canvass. We conclude that a defendant can abandon an unequivocal
request to represent themselves where the district court has not
conclusively denied the request and the totality of the circumstances,
including the defendant's conduct, demonstrates that the defendant has
abandoned their request. As discussed in detail below, we further conclude
that appellant Tashami J. Sims unequivocally requested to represent
himself, the district court did not conclusively deny the request, and Sims
subsequently abandoned his request. Therefore, we affirm the judgment of
conviction.
PROCEDURAL AlVD FACTUAL HISTORY
Sims pleaded guilty to assault with the use of a deadly weapon.
The district court set a sentencing date of April 25, 2022. Sims' counsel was
unable to appear on that date because of a personal matter, and an associate
of counsel's appeared instead. •At that hearing, the district court indicated
it was still waiting for an update from the mental health court as to whether

1 Faretta v. California, 422 U.S. 806 (1975).
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that specialty court would accept Sims. Based on these circumstances,
associated counsel asked that the sentencing hearing be continued for 7 to
10 days.
Sims did not want the hearing continued, and when he learned
that associated counsel was not prepared to go forward with the sentencing
on that date, Sims stated, "Okay. Well, I'll go pro per." The district court
informed Sims that sentencing was not going forward that day, and Sims
reiterated that he could represent himself at sentencing:
THE DEFENDANT: I can—I can go pro per and
then I'll go do my own sentencing. And I'll do it just
like that. 'Cause I don't want—we've been doing
this—we just waiVed it.
THE COURT: I understand Mr. Sims, but we're
only going to continue it 'till like Wednesday to see
an update. It's not going to be—
THE DEFENDANT: That's still—Your Honor, I'm
just trying to see if I got accepted. If I didn't get
accepted then I'm ready to proceed right now.
THE COURT: Okay. We are not proceeding today.
So I can continue it to Wednesday or we can
continue it for a minute for you to find out.
THE DEFENDANT: I would like—I would like to
exercise my Faretta rights
THE COURT: Mr. Sims, rt's not happening right
now.
THE DEFENDANT: So I can't—
THE COURT: Continue it to Wednesday.
THE DEFENDANT: So I can't go pro per right now?
THE COURT: No, Sir.
Two days later, Sims appeared at the continued sentencing
hearing with associated counsel• anJ before the same judge who had
presided over the previous hearing. continuance was again granted to
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allow the State to procure the victim witn.esses and for Sims to provide
further evidence to the specialty court regarding his mental health history.
Associated counsel stated he talked with Sims and they were collaborating
to get Sims' mental health records to the mental health court. The district
court asked Sims if this was correct, and he agreed. Sims did not reassert
his request to represent himself, and the sentencing hearing Was continued
a final time to May 25, 202.2.
At the final Senten.cing hearing, the:district cOurt asked'if there
was [a]ny legal reason or cause why we Can't move forWard." Counsel
answered in the negative. Shortly thereafter, Siins was allowed to sPeak,
and again, he did not reassert his request to represent himself. Instead, he
explained he has a history of drug abuse and mental health issues and that
he • Wanted ta be placed in -either the mental 'health court or - drug court.
Counsel stated that the mental health court had rejected Sims but that the
drug court had accepted'him.- and'argued. that Sims shoUld participate inthe
drug court. Although the district' CoUrt thought Sims 'could benefit' from
freatment, it determined that Sims was a danger tO society and sentenced
him to 20 to 72 months in. prison.
ANALYSIS
Sims argues the district court erred by not conducting a Faretta
canvass prior to denying his unequivocal request to represent .himself.
Criminal defendant's have a Sixth Amendment right . represent
themselves so long as the waiver Of the- right, to counsel is intelligeilt. and
volinitarY. See O'Neill, 123 Nev. at 17, 153 P.-3d at 43; Upon invocation of
the right to Self-representation, the district court should conduct a Faretta
canvass. to ensure the waiver of the right to counsel is made knowingly,
voluntarily, and intelligently. Id. "A district court may deny .a
defendant's request for self-representation where the requeSt is untithely,
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OH 1947H
the request is equivocal, the request is made solely for the purpose of delay,
the defendant abuses his right by disrupting the judicial process, or the
defendant is incompetent to waive his right to counsel." ld. at 17, 153 P.3d
at 44 (internal quotation marks omitted).
The parties do not dispute that Sims' request to represent
himself was unequivocal. Further, the State does not allege, and the record
does not reflect, the existence of any of the reasons listed in O'Neill for
denying a defendant's request to represent themselves. Rather, the State
argues that Sims abandoned hiS request for self-representation by not
renewing the request in subsequent hearings.2 Sims replies that his failure
to reiterate his request for self-representation did not absolve the district
court of its initial duty to conduct a Faretta canvass and, in turn, the district
court's failure to conduct a canvass was reversible error.
The improper denial of a defendant's right to self-
representation at trial is a structural error that is not subject to harmless

2The State also argues that Sims is not entitled to relief because he
did not knowingly and voluntarily waive his right to counsel. In
explanation, the State emphasizes that (a) Sinis said he wanted to represent
himself in order to avoid any delay in sentencing but (b) the sentencing
court was determined to continue the hearing regardless. The State's
argument necessarily fails. It wrongly suggests 'that a defendant may
automatically negate their right to self-representation by stating a motive.
See Buhl v. Cooksey, 233 F.3d 783, 794 (3d Cir. 2000) ("[A] defendant's
constitutional right of self-representation is not automatically negated bÿ
his/her motivation for asserting it."). More importantly, the State's circular
argument overlooks that the very purpose of a Faretta canvass is to
determine whether a request for self-representation constitutes a knowing,
voluntary, and intelligent waiver of the right to counsel. See O'Neill, 123
Nev. at 17, 153 P.3d at 43. Because the purpose of the canvass is to
determine the validity of the waiver, a canvass cannot be avoided by a
predetermination that the waiver is not valid. In light of these
considerations, the State's argument is unpersuasive.
COURT OF APPEALS
OF
NEVADA
5
10) I4,17B
error analysis when the error is both preserved and not abandoned. United
States v. Williams, 29 F.4th 1306, 1313 (11th Cir. 2022); see also United
States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (explaining
structural error and listing the right to self-representation as an example);
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). 1(AI-ice a defendant
affirmatively states his desire to proceed pro se, a court should cease other
business and make the required inquiry . . . ." United States v. Rice, 776
F.3d 1021, 1025 (9th Cir. 2015) (alteration in original) (quoting Raulerson
v. Wainwright, 469 U.S. 366, 369 (1984) (Marshall, J., dissenting)); see also
Batchelor v. Cain, 682 F.3d 400, 412 (5th Cir. 2012) (providing that "the
trial court should have initiated a colloquy"). However, it does not

necessarily follow that a failure to conduct a Faretta canvass is the
equivalent of denying a defendant the right of self-representation. See

Hooks v. State, 124 Nev. 48, 52, 176 P.3d 1081, 1083 (2008) (concluding that
"the district court's failure to conduct a thorough canvass does not per se
require reversal"); Hymon v. State, 121 Nev. 200, 212-13, 111 P.3d 1092,
1101 (2005); see also Rice, 776 F.3d at 1025-26 (concluding no Sixth
Amendment violation occurred despite the court's failure to immediately
conduct a Faretta canvass). Rather, "the primary focus must be on whether
the defendant had a fair chance to present his case in his own way."
McKaskle, 465 U.S. at 177.
Just as "a defendant's 'pre-trial decision to Proceed with counsel
does not constitute an absolute waiver of his right to represent himself,'
once the right, to self-representation has been asserted, it "may be waived
through conduct indicating that one is vacillating on the issue or has

abandoned one's request altogether." Williams v. Bartlett, 44 F.3d. 95, 100
(2d Cir. 1994) (quoting United States v. Matsushita, 794 F.2d 46, 51 (2d Cir.

COURT OF APPEALS
OF
NEVADA
0
(th I947B
1986)); see also Brown u. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982).
This is because, whereas the right to counsel is presu.med, see U.S..Const.
amend. 6 ("In all criminal prosecutions, the accused shall enjoy the
right . . to have the Assistance of Counsel for his defence."), the right to
represent oneself must be affirmatively asserted, see O'Neill, 123 Nev. at
17, 153 P.3d. at 44 (providing a trial court may deny an equivocal request.
for self-representation.). Accordingly, it stands to reason that the right to
self-representation is more easily lost than is the right to counsel. Brown,
665 F.2d at 611 ("Since the right of 4,elf-representation is waived More easily
than the .right to coUnsel at the outset, before assertion, it is reaSonable to
conclude it is more easily waived at a later point, after assertion.").
However, as Sims points out, a defendant should not have to
continuously reassert a right in order to preserVe for review the denial of
that right. See Buhl, 233 F.3d at 796 (stating-that a defendant's failure to
renew their request for self-representation "is irrelevant because the law
irnilbses no sUch obligation as a condition precedent to preserving one s. right
to proceed pro se"). "[A] defendant is not required continually to.renew a
request once it is conclusively denied or to 'make fruitless motions or forego
cooperation with defense counsel in order to preserve the issue on .appeal.'
Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989) (quoting DorMan v.
Wainwright, 798 F.2d 1358, 1367 (11th Cir. 1986)). That is; once the district
court has conclusively denied a request .for self-representation, the issue iS
preserved for appeal. But 'where the district court has .h.ot conclusively
denied a request for self-representation, the right to self-representatiori
May be abandoned -if the defendant does not reašsert the request. See
Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000).

COURT OF APPEALS
OF
NEVADA
7
(0) 144711
Because Sims made an unequivocal request to represent
himself, the district court, ideally, should have canvassed him as to the
validity of his waiver. However, the district court did not. We therefore
must determine whether the district court conclusively denied the request
or if Sims abandoned that request.
The district court did not conclusively deny the request
First, this court must determine whether the district court
conclusively denied Sims' request to represent himself. The weight of
authority indicates that. a trial-level court conclusively denies a request for
self-representation when the reason given for denial would make any future
request futile.
For example, the United States Court of Appeals for the Ninth
Circuit reasoned that any future request by a defendant would be futile
where the lower court had "made absolutely clear that [his] first choice, self-
representation, was not an available option." United States v. Arlt, 41. F.3d
516, 522 (9th Cir. 1994). There, the lower court had denied a request for
self-representation upon finding that the defendant could not represent
himself competently because his motion was "rambling and illogical." Id. at
518. Similarly, in another case from the same circuit, the lower court denied
the defendant's request for self-representation because the defendant was
incapable of putting on an effective defense. United States v. Hernandez,
203 F.3d 614, 621-23 (9th Cir. 2000), overruled on other grounds by Indiana
v. Edwards, 554 U.S. 164. 1.77-78 (2008). The Ninth Circuit concluded that,
given the reason for the denial, "there was no reason for Hernandez to
believe that on the day of trial the judge would suddenly change his mind
and decide that Hernandez had become a competent trial advocate." Id. at
622.

COURT OF APPEALS
OF

NEVADA
8
10) 1947B ADP
Other jurisdictions have employed similar reasoning. The
United States Court of Appeals for the Second Circuit held that a lower
court's ruling (that the defendant lacked the education to represent himself)
was categorical, and expressly relied on the advanced stage of proceedings
and the defendant's lack of education—obstacles that were not going to be
removed before trial." Williams, 44 F.3d at 101. And the California
Supreme Court held that a trial court ruling that a defendant could not
represent himself because he was facing the death penalty was
(4unequivocal, and foreclosed any realistic possibility defendant • would

perceive self-representation as an available option." People v. Dent, 65 P.3d
1286, 1289 (Cal. 2003).
The common theme in each of these cases is that the appellate
courts concluded that the explanation given for denying a defendant the
right of self-representation made it clear that any future request would be
futile. A person's education, ability to put on a defense, and potential
punishment are not subject to change before trial. Because• any future
requests would be futile, the lower court rulings constituted conclusive
denials of the defendants' requests for self-representation.
Conversely, courts have held that the denial of the right to•self-
representation is not conclusive when a future request would not
necessarily be futile. For example, the trial-level court does not conclusively
deny a defendant the right to self-representation when the defendant is
informed they can reassert the right at a later time. See, e.g., People v. Tena,
67 Cal. Rptr. 3d 412, 422-23 (Ct. App. 2007); Swan v. Commonwealth, 384
S.W.3d 77, 92-93 (Ky. 2012) (observing the defendant was told to consult
with counsel and to reassert the motion if necessary). A delayed ruling is
also not a conclusive denial. See, e.g., Cheney v. State, 236 So. 3d 500, 502-

COURT OF APPEALS
OF
NEVADA

(1) 19.47B
03.(Fla. Dist. Ct. App. 2018) (concluding that there was no conclusive denial
when the defendant agrecd to continue with counsel while being evaluated
for a particular defense). In each of these examples, the reason given for
denying the defendant the right of self-representation did not. suggest that
any future request would be futile. Therefore, none of the denials
constituted conclusive denials of the defendants requests for self-
representation.
In the instant case, the'district Court's reason for denying •Sims'
request did not foreclose' the possibility that a future .request mig•ht -be
granted. Specifically, the district court denied the request "right noW,"
indicating that the request could be revisited:. And Sims appeared to
understand that he could reassert his request in the future because he
clarified that he was not being allowed to represent himself"right now." We
conclud.e • the district court's denial of Sims' oral motion for self-
representation-was not a conclusive denial because the denial Was not based
on. something that would render a future request futile.
Sims' conduct indicated he abandoned his request
Having concluded that Sims' request was unequivocal and that
the district court did not conclusively deny it, this court must n.ow consider
whether Sims' conduct after the denial demonstrated that he abandoned his
request. There .are two competing approaches to determine - whether a
defendant, through their subsequent conduct, has demonstrated they have
abandoned their request.
Some jurisdictions follow a per se rule when determining
whether .a defendant has -abandoned their right to self-representation.
Under this rule, if a defendant makes an unequivocal reqUeSt to represent
theinselves, their failure to follow up on the request when they have-the
time and oppOrtunity to do so conStitutes an• abandonment of the request.
COURT OF APPEALS
OF
NEVADA
10
BB 1947B
People v. Kenner, 272 Cal. Rptr. 551, 555 (Ct. App. 1990).3 The attraction
of this rule is that it creates an easy-to-apply, bright-line test: if the
defendant makes a request that is not conclusively denied and the
defendant does not reassert the request, it is abandoned. TWo
. considerations militate against this approach. First, such a bright-line rule
may inadvertently encourage trial courts to unduly defer ruling on a
defendant's unequivocal. request to represent themselves sim.ply because
the defendant may change their mind. Second, • by virtne of its being a
bright-line test, the per se rule does not allow for nuance or extenuating
circumStanceS.
Indeed, other jurisdictions have found the per se rule to be too
strict• and instead look to the totality of the circumstances to determine
whether a defendant has abandOned their request for self-representation.
The Arizona Court of .Appeals has ad.opted this approach and set forth
several factors tO consider, including
the defendant's opportunities to remind the court of:
. a. pending motion, defense counsel's awareness of
the motion, any affirmative conduct by the
defendant that would run counter to a desire for -
self-representation, whether the defendant waited
until after a conviction to complain ..., and the
defendant's experience in the criminal justice.
system and with waiving counsel.
McLemore, 288 P.3d. at 786. They also consider whether there was a
relatively short period of tirne between the request and subsequent hearings
such that the defendant did not. have time to forget about their request. Id.
at 786-87. Although lAcking the simplicity of a per Se rule, courts are

3It was first referred to as the. "per se" rule in State v. McLernore, 288
P.3d 775, 784-86 (Ariz. Ct. App. 2012).
COURT OF APPEALS
OF
NEVADA

101 1947B
familiar with reviewing the totality of the circumstances. See, e.g., Taylor
v. State, 132 Nev. 309, 320, 371 P.3d 1036. 1044 (2016) (applying a totality
of the circumstances test to the reliability of pretrial identification
procedures); Stevenson v. State, 131 Nev. 598, 603, 354 P.3d 1277, 1281
(2015) (applying a totality of the circumstances test to determine whether
permitting withdrawal of a guilty plea before sentencing would be fair and
just); Harkins v. State, 1.22 Nev. 974, 987, 143 P.3d 706, 714 (2006)
(applying a totality of the circumstances test to determine whether a
hearsay statement is testimonial for confrontation purposes); Doyle v. State,
116 Nev. 148, 158, 995 P.2d 465, 471 (2000) (applying a totality of the
circumstances test to determine whether probable cause is present to
support a search warrant); Passama v. State, 103 Nev. 212, 214, 735 P.2d
321, 323 (1987) (applying a totality of the circumstances test to determine
whether a confession was voluntary). And it has the benefit of allowing
courts to consider circumstances unique to a particular case.
Because it is both flexible and familiar, a test that considers the
totality of the circumstances best serves the interests of both defendants
who assert their right to represent themselves and the courts. Accordingly,
we will review whether a defendant has abandoned their request for self-
representation by considering the. totality of the circumstances, including
their conduct. We further adopt the factors set forth in McLernore to guide
us in that consideration.
Applying the MeLemore factors, we conclude Sims abandoned
his request for self-representation. First, Sims had two opportunities to
remind the district court in person of his request but did not, and nothing
in the record before this court suggests that he atternpted to file a written
motion to dismiss counsel in the month. between his initial request and his

COURT OF APPEALS
OF
NEVADA
12
(0) 1947R
final sentencing hearing. See EDCR 3.70 (stating a defendant who has
counsel may file a motion to withdraw counsel pursuant to N.R.Cr.P.
3(2)(B)(ii)).Second, the defense team knew of Sims' request because
associated counsel was present when Sims rnade it. Third, Sims' actions of
collaborating with counsel regarding his mental health records ran counter
to a desire to represent himself. Fourth, Sims waited until after his
conviction to complain about the denial of his request. Fifth, Sims has
experience in the criminal justice system, although the record does not
indicate whether 8ims ever sought to represent• hiniself in his prior cases.
Finally, the time between hearings was relatively short: there were only 2
days between the initial request and the next hearing and 30 days between
the initial request and sentencing, making it unlikely that Sims forgot his
expressed desire to represent himself. Thus, the totality of the
circumstances demonstrates Sims abandoned his request to represent
himself.
CONCLUSION
A defendant may abandon an unequivocal request for self-
representation where the district court did not conclusively deny the
request. And we will consider the totality of the circumstances in
determining whether a defendant has in fact abandoned such a request.
Here, Sims made an unequivocal request to represent himself, which the
district court did not conclusively deny. After considering the totality of the
circumstances, we conclude that Sims abandoned his request for self-
representation and, thus, that Sims is not entitled to relief for the district

COURT OF APPEALS.
OF
NEVADA
13
;(1) 1947B aitlbo
court's failure to conduct a Faretta canvass. Therefore, we affirm the
judgment of conviction.

( ALI , C.J.
Gi bons r7-4

, J.
Bulla

J.
Westbrook

COURT OF APPEALS
OF
NEVADA
14
0) 1947B

139 Nev., Advance ()pinto, 5-5
IN THE COUR.T OF APPEALS OF THE STATE OF NEVADA

TASHAMI J. SIMS, No. 84904-COA
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
DEC 07 2023
H A. BROWN
UPR E QDRT

1EF DEPUTY CLERK

Appeal from a judgment of conviction, entered pursuant to a
guilty plea, of assault with the use of a deadly weapon. Eighth Judicial
District. Court, Clark County; Jasmin D. Lilly-Spells, Judge.
Affirmed.

Zaman Legal LLC and Waleed Zaman, Las Vegas,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. 'Wolfson, District
Attorney, and Jonathan E VanBoskerck, Chief Deputy District Attorney,
Clark County,
for Respondent.

BEFORE THE COURT OF APPEALS, GII3BONS, C.J., and BULLA and
WESTBROOK, JJ.

COURT OF APPEALS
OF
NEVADA
716109
( th 14479
OPINION
PER CURIAM:
Criminal defendants have the unqualified right to represent
themselves at trial so long as their waiver of the right to counsel is knowing,
voluntary, and intelligent. To protect this fundamental right, district courts
should generally conduct a Faretta1 canvass when a competent defendant
makes a timely and unequivocal request for self-representation. See O'Neill
v. State, 123 Nev. 9, 17, 153 P.3d 38, 43 (2007). In this case, we address, for
the first time, whether an unequivocal request for self-representation can
be subsequently abandoned by the defendant, obviating the need for a
Faretta canvass. We conclude that a defendant can abandon an unequivocal
request to represent themselves where the district court has not
conclusively denied the request and the totality of the circumstances,
including the defendant's conduct, demonstrates that the defendant has
abandoned their request. As discussed in detail below, we further conclude
that appellant Tashami J. Sims unequivocally requested to represent
himself, the district court did not conclusively deny the request, and Sims
subsequently abandoned his request. Therefore, we affirm the judgment of
conviction.
PROCEDURAL AlVD FACTUAL HISTORY
Sims pleaded guilty to assault with the use of a deadly weapon.
The district court set a sentencing date of April 25, 2022. Sims' counsel was
unable to appear on that date because of a personal matter, and an associate
of counsel's appeared instead. •At that hearing, the district court indicated
it was still waiting for an update from the mental health court as to whether

1 Faretta v. California, 422 U.S. 806 (1975).
COURT OF APPEALS
OF
NEVADA
2
( 0 ) 194713
that specialty court would accept Sims. Based on these circumstances,
associated counsel asked that the sentencing hearing be continued for 7 to
10 days.
Sims did not want the hearing continued, and when he learned
that associated counsel was not prepared to go forward with the sentencing
on that date, Sims stated, "Okay. Well, I'll go pro per." The district court
informed Sims that sentencing was not going forward that day, and Sims
reiterated that he could represent himself at sentencing:
THE DEFENDANT: I can—I can go pro per and
then I'll go do my own sentencing. And I'll do it just
like that. 'Cause I don't want—we've been doing
this—we just waiVed it.
THE COURT: I understand Mr. Sims, but we're
only going to continue it 'till like Wednesday to see
an update. It's not going to be—
THE DEFENDANT: That's still—Your Honor, I'm
just trying to see if I got accepted. If I didn't get
accepted then I'm ready to proceed right now.
THE COURT: Okay. We are not proceeding today.
So I can continue it to Wednesday or we can
continue it for a minute for you to find out.
THE DEFENDANT: I would like—I would like to
exercise my Faretta rights
THE COURT: Mr. Sims, rt's not happening right
now.
THE DEFENDANT: So I can't—
THE COURT: Continue it to Wednesday.
THE DEFENDANT: So I can't go pro per right now?
THE COURT: No, Sir.
Two days later, Sims appeared at the continued sentencing
hearing with associated counsel• anJ before the same judge who had
presided over the previous hearing. continuance was again granted to
COURT OF APPEALS
OF
NEVADA

tO) 194711
allow the State to procure the victim witn.esses and for Sims to provide
further evidence to the specialty court regarding his mental health history.
Associated counsel stated he talked with Sims and they were collaborating
to get Sims' mental health records to the mental health court. The district
court asked Sims if this was correct, and he agreed. Sims did not reassert
his request to represent himself, and the sentencing hearing Was continued
a final time to May 25, 202.2.
At the final Senten.cing hearing, the:district cOurt asked'if there
was [a]ny legal reason or cause why we Can't move forWard." Counsel
answered in the negative. Shortly thereafter, Siins was allowed to sPeak,
and again, he did not reassert his request to represent himself. Instead, he
explained he has a history of drug abuse and mental health issues and that
he • Wanted ta be placed in -either the mental 'health court or - drug court.
Counsel stated that the mental health court had rejected Sims but that the
drug court had accepted'him.- and'argued. that Sims shoUld participate inthe
drug court. Although the district' CoUrt thought Sims 'could benefit' from
freatment, it determined that Sims was a danger tO society and sentenced
him to 20 to 72 months in. prison.
ANALYSIS
Sims argues the district court erred by not conducting a Faretta
canvass prior to denying his unequivocal request to represent .himself.
Criminal defendant's have a Sixth Amendment right . represent
themselves so long as the waiver Of the- right, to counsel is intelligeilt. and
volinitarY. See O'Neill, 123 Nev. at 17, 153 P.-3d at 43; Upon invocation of
the right to Self-representation, the district court should conduct a Faretta
canvass. to ensure the waiver of the right to counsel is made knowingly,
voluntarily, and intelligently. Id. "A district court may deny .a
defendant's request for self-representation where the requeSt is untithely,
COURT OF APPEALS
OF
NEVADA
4
OH 1947H
the request is equivocal, the request is made solely for the purpose of delay,
the defendant abuses his right by disrupting the judicial process, or the
defendant is incompetent to waive his right to counsel." ld. at 17, 153 P.3d
at 44 (internal quotation marks omitted).
The parties do not dispute that Sims' request to represent
himself was unequivocal. Further, the State does not allege, and the record
does not reflect, the existence of any of the reasons listed in O'Neill for
denying a defendant's request to represent themselves. Rather, the State
argues that Sims abandoned hiS request for self-representation by not
renewing the request in subsequent hearings.2 Sims replies that his failure
to reiterate his request for self-representation did not absolve the district
court of its initial duty to conduct a Faretta canvass and, in turn, the district
court's failure to conduct a canvass was reversible error.
The improper denial of a defendant's right to self-
representation at trial is a structural error that is not subject to harmless

2The State also argues that Sims is not entitled to relief because he
did not knowingly and voluntarily waive his right to counsel. In
explanation, the State emphasizes that (a) Sinis said he wanted to represent
himself in order to avoid any delay in sentencing but (b) the sentencing
court was determined to continue the hearing regardless. The State's
argument necessarily fails. It wrongly suggests 'that a defendant may
automatically negate their right to self-representation by stating a motive.
See Buhl v. Cooksey, 233 F.3d 783, 794 (3d Cir. 2000) ("[A] defendant's
constitutional right of self-representation is not automatically negated bÿ
his/her motivation for asserting it."). More importantly, the State's circular
argument overlooks that the very purpose of a Faretta canvass is to
determine whether a request for self-representation constitutes a knowing,
voluntary, and intelligent waiver of the right to counsel. See O'Neill, 123
Nev. at 17, 153 P.3d at 43. Because the purpose of the canvass is to
determine the validity of the waiver, a canvass cannot be avoided by a
predetermination that the waiver is not valid. In light of these
considerations, the State's argument is unpersuasive.
COURT OF APPEALS
OF
NEVADA
5
10) I4,17B
error analysis when the error is both preserved and not abandoned. United
States v. Williams, 29 F.4th 1306, 1313 (11th Cir. 2022); see also United
States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (explaining
structural error and listing the right to self-representation as an example);
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). 1(AI-ice a defendant
affirmatively states his desire to proceed pro se, a court should cease other
business and make the required inquiry . . . ." United States v. Rice, 776
F.3d 1021, 1025 (9th Cir. 2015) (alteration in original) (quoting Raulerson
v. Wainwright, 469 U.S. 366, 369 (1984) (Marshall, J., dissenting)); see also
Batchelor v. Cain, 682 F.3d 400, 412 (5th Cir. 2012) (providing that "the
trial court should have initiated a colloquy"). However, it does not

necessarily follow that a failure to conduct a Faretta canvass is the
equivalent of denying a defendant the right of self-representation. See

Hooks v. State, 124 Nev. 48, 52, 176 P.3d 1081, 1083 (2008) (concluding that
"the district court's failure to conduct a thorough canvass does not per se
require reversal"); Hymon v. State, 121 Nev. 200, 212-13, 111 P.3d 1092,
1101 (2005); see also Rice, 776 F.3d at 1025-26 (concluding no Sixth
Amendment violation occurred despite the court's failure to immediately
conduct a Faretta canvass). Rather, "the primary focus must be on whether
the defendant had a fair chance to present his case in his own way."
McKaskle, 465 U.S. at 177.
Just as "a defendant's 'pre-trial decision to Proceed with counsel
does not constitute an absolute waiver of his right to represent himself,'
once the right, to self-representation has been asserted, it "may be waived
through conduct indicating that one is vacillating on the issue or has

abandoned one's request altogether." Williams v. Bartlett, 44 F.3d. 95, 100
(2d Cir. 1994) (quoting United States v. Matsushita, 794 F.2d 46, 51 (2d Cir.

COURT OF APPEALS
OF
NEVADA
0
(th I947B
1986)); see also Brown u. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982).
This is because, whereas the right to counsel is presu.med, see U.S..Const.
amend. 6 ("In all criminal prosecutions, the accused shall enjoy the
right . . to have the Assistance of Counsel for his defence."), the right to
represent oneself must be affirmatively asserted, see O'Neill, 123 Nev. at
17, 153 P.3d. at 44 (providing a trial court may deny an equivocal request.
for self-representation.). Accordingly, it stands to reason that the right to
self-representation is more easily lost than is the right to counsel. Brown,
665 F.2d at 611 ("Since the right of 4,elf-representation is waived More easily
than the .right to coUnsel at the outset, before assertion, it is reaSonable to
conclude it is more easily waived at a later point, after assertion.").
However, as Sims points out, a defendant should not have to
continuously reassert a right in order to preserVe for review the denial of
that right. See Buhl, 233 F.3d at 796 (stating-that a defendant's failure to
renew their request for self-representation "is irrelevant because the law
irnilbses no sUch obligation as a condition precedent to preserving one s. right
to proceed pro se"). "[A] defendant is not required continually to.renew a
request once it is conclusively denied or to 'make fruitless motions or forego
cooperation with defense counsel in order to preserve the issue on .appeal.'
Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989) (quoting DorMan v.
Wainwright, 798 F.2d 1358, 1367 (11th Cir. 1986)). That is; once the district
court has conclusively denied a request .for self-representation, the issue iS
preserved for appeal. But 'where the district court has .h.ot conclusively
denied a request for self-representation, the right to self-representatiori
May be abandoned -if the defendant does not reašsert the request. See
Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000).

COURT OF APPEALS
OF
NEVADA
7
(0) 144711
Because Sims made an unequivocal request to represent
himself, the district court, ideally, should have canvassed him as to the
validity of his waiver. However, the district court did not. We therefore
must determine whether the district court conclusively denied the request
or if Sims abandoned that request.
The district court did not conclusively deny the request
First, this court must determine whether the district court
conclusively denied Sims' request to represent himself. The weight of
authority indicates that. a trial-level court conclusively denies a request for
self-representation when the reason given for denial would make any future
request futile.
For example, the United States Court of Appeals for the Ninth
Circuit reasoned that any future request by a defendant would be futile
where the lower court had "made absolutely clear that [his] first choice, self-
representation, was not an available option." United States v. Arlt, 41. F.3d
516, 522 (9th Cir. 1994). There, the lower court had denied a request for
self-representation upon finding that the defendant could not represent
himself competently because his motion was "rambling and illogical." Id. at
518. Similarly, in another case from the same circuit, the lower court denied
the defendant's request for self-representation because the defendant was
incapable of putting on an effective defense. United States v. Hernandez,
203 F.3d 614, 621-23 (9th Cir. 2000), overruled on other grounds by Indiana
v. Edwards, 554 U.S. 164. 1.77-78 (2008). The Ninth Circuit concluded that,
given the reason for the denial, "there was no reason for Hernandez to
believe that on the day of trial the judge would suddenly change his mind
and decide that Hernandez had become a competent trial advocate." Id. at
622.

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Other jurisdictions have employed similar reasoning. The
United States Court of Appeals for the Second Circuit held that a lower
court's ruling (that the defendant lacked the education to represent himself)
was categorical, and expressly relied on the advanced stage of proceedings
and the defendant's lack of education—obstacles that were not going to be
removed before trial." Williams, 44 F.3d at 101. And the California
Supreme Court held that a trial court ruling that a defendant could not
represent himself because he was facing the death penalty was
(4unequivocal, and foreclosed any realistic possibility defendant • would

perceive self-representation as an available option." People v. Dent, 65 P.3d
1286, 1289 (Cal. 2003).
The common theme in each of these cases is that the appellate
courts concluded that the explanation given for denying a defendant the
right of self-representation made it clear that any future request would be
futile. A person's education, ability to put on a defense, and potential
punishment are not subject to change before trial. Because• any future
requests would be futile, the lower court rulings constituted conclusive
denials of the defendants' requests for self-representation.
Conversely, courts have held that the denial of the right to•self-
representation is not conclusive when a future request would not
necessarily be futile. For example, the trial-level court does not conclusively
deny a defendant the right to self-representation when the defendant is
informed they can reassert the right at a later time. See, e.g., People v. Tena,
67 Cal. Rptr. 3d 412, 422-23 (Ct. App. 2007); Swan v. Commonwealth, 384
S.W.3d 77, 92-93 (Ky. 2012) (observing the defendant was told to consult
with counsel and to reassert the motion if necessary). A delayed ruling is
also not a conclusive denial. See, e.g., Cheney v. State, 236 So. 3d 500, 502-

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(1) 19.47B
03.(Fla. Dist. Ct. App. 2018) (concluding that there was no conclusive denial
when the defendant agrecd to continue with counsel while being evaluated
for a particular defense). In each of these examples, the reason given for
denying the defendant the right of self-representation did not. suggest that
any future request would be futile. Therefore, none of the denials
constituted conclusive denials of the defendants requests for self-
representation.
In the instant case, the'district Court's reason for denying •Sims'
request did not foreclose' the possibility that a future .request mig•ht -be
granted. Specifically, the district court denied the request "right noW,"
indicating that the request could be revisited:. And Sims appeared to
understand that he could reassert his request in the future because he
clarified that he was not being allowed to represent himself"right now." We
conclud.e • the district court's denial of Sims' oral motion for self-
representation-was not a conclusive denial because the denial Was not based
on. something that would render a future request futile.
Sims' conduct indicated he abandoned his request
Having concluded that Sims' request was unequivocal and that
the district court did not conclusively deny it, this court must n.ow consider
whether Sims' conduct after the denial demonstrated that he abandoned his
request. There .are two competing approaches to determine - whether a
defendant, through their subsequent conduct, has demonstrated they have
abandoned their request.
Some jurisdictions follow a per se rule when determining
whether .a defendant has -abandoned their right to self-representation.
Under this rule, if a defendant makes an unequivocal reqUeSt to represent
theinselves, their failure to follow up on the request when they have-the
time and oppOrtunity to do so conStitutes an• abandonment of the request.
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People v. Kenner, 272 Cal. Rptr. 551, 555 (Ct. App. 1990).3 The attraction
of this rule is that it creates an easy-to-apply, bright-line test: if the
defendant makes a request that is not conclusively denied and the
defendant does not reassert the request, it is abandoned. TWo
. considerations militate against this approach. First, such a bright-line rule
may inadvertently encourage trial courts to unduly defer ruling on a
defendant's unequivocal. request to represent themselves sim.ply because
the defendant may change their mind. Second, • by virtne of its being a
bright-line test, the per se rule does not allow for nuance or extenuating
circumStanceS.
Indeed, other jurisdictions have found the per se rule to be too
strict• and instead look to the totality of the circumstances to determine
whether a defendant has abandOned their request for self-representation.
The Arizona Court of .Appeals has ad.opted this approach and set forth
several factors tO consider, including
the defendant's opportunities to remind the court of:
. a. pending motion, defense counsel's awareness of
the motion, any affirmative conduct by the
defendant that would run counter to a desire for -
self-representation, whether the defendant waited
until after a conviction to complain ..., and the
defendant's experience in the criminal justice.
system and with waiving counsel.
McLemore, 288 P.3d. at 786. They also consider whether there was a
relatively short period of tirne between the request and subsequent hearings
such that the defendant did not. have time to forget about their request. Id.
at 786-87. Although lAcking the simplicity of a per Se rule, courts are

3It was first referred to as the. "per se" rule in State v. McLernore, 288
P.3d 775, 784-86 (Ariz. Ct. App. 2012).
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familiar with reviewing the totality of the circumstances. See, e.g., Taylor
v. State, 132 Nev. 309, 320, 371 P.3d 1036. 1044 (2016) (applying a totality
of the circumstances test to the reliability of pretrial identification
procedures); Stevenson v. State, 131 Nev. 598, 603, 354 P.3d 1277, 1281
(2015) (applying a totality of the circumstances test to determine whether
permitting withdrawal of a guilty plea before sentencing would be fair and
just); Harkins v. State, 1.22 Nev. 974, 987, 143 P.3d 706, 714 (2006)
(applying a totality of the circumstances test to determine whether a
hearsay statement is testimonial for confrontation purposes); Doyle v. State,
116 Nev. 148, 158, 995 P.2d 465, 471 (2000) (applying a totality of the
circumstances test to determine whether probable cause is present to
support a search warrant); Passama v. State, 103 Nev. 212, 214, 735 P.2d
321, 323 (1987) (applying a totality of the circumstances test to determine
whether a confession was voluntary). And it has the benefit of allowing
courts to consider circumstances unique to a particular case.
Because it is both flexible and familiar, a test that considers the
totality of the circumstances best serves the interests of both defendants
who assert their right to represent themselves and the courts. Accordingly,
we will review whether a defendant has abandoned their request for self-
representation by considering the. totality of the circumstances, including
their conduct. We further adopt the factors set forth in McLernore to guide
us in that consideration.
Applying the MeLemore factors, we conclude Sims abandoned
his request for self-representation. First, Sims had two opportunities to
remind the district court in person of his request but did not, and nothing
in the record before this court suggests that he atternpted to file a written
motion to dismiss counsel in the month. between his initial request and his

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final sentencing hearing. See EDCR 3.70 (stating a defendant who has
counsel may file a motion to withdraw counsel pursuant to N.R.Cr.P.
3(2)(B)(ii)).Second, the defense team knew of Sims' request because
associated counsel was present when Sims rnade it. Third, Sims' actions of
collaborating with counsel regarding his mental health records ran counter
to a desire to represent himself. Fourth, Sims waited until after his
conviction to complain about the denial of his request. Fifth, Sims has
experience in the criminal justice system, although the record does not
indicate whether 8ims ever sought to represent• hiniself in his prior cases.
Finally, the time between hearings was relatively short: there were only 2
days between the initial request and the next hearing and 30 days between
the initial request and sentencing, making it unlikely that Sims forgot his
expressed desire to represent himself. Thus, the totality of the
circumstances demonstrates Sims abandoned his request to represent
himself.
CONCLUSION
A defendant may abandon an unequivocal request for self-
representation where the district court did not conclusively deny the
request. And we will consider the totality of the circumstances in
determining whether a defendant has in fact abandoned such a request.
Here, Sims made an unequivocal request to represent himself, which the
district court did not conclusively deny. After considering the totality of the
circumstances, we conclude that Sims abandoned his request for self-
representation and, thus, that Sims is not entitled to relief for the district

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court's failure to conduct a Faretta canvass. Therefore, we affirm the
judgment of conviction.

( ALI , C.J.
Gi bons r7-4

, J.
Bulla

J.
Westbrook

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