United States of America v. RICHARD MONROE HARKLESS, AKA Seal A

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD MONROE HARKLESS, AKA
Seal A,
Defendant - Appellant.
No. 09-50500
D.C. No. 5:07-cr-00018-VAP-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted October 9, 2012
Pasadena, California
Before: TROTT, KLEINFELD, and McKEOWN, Circuit Judges.
Appellant Richard M. Harkless appeals his fraud related felony convictions
on the ground that his purported Faretta waiver of his Sixth Amendment right to
counsel was invalid. He alleges that his waiver was fatally defective because he
was mistakenly advised by the court, which in turn relied on information from the
FILED
OCT 19 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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government, that the maximum sentence he faced if convicted was only 90 years.
The government now concedes that at the time of his purported Faretta waiver
Harkless was “facing a statutory maximum sentence of 340 years.” After
conviction, he was given a 100 year sentence.
“In order to deem a defendant’s Faretta waiver knowing and intelligent, the
district court must insure that he understands . . . the possible penalties . . .”
attached to the crimes with which he is charged. United States v. Erskine, 355
F.3d 1161, 1167 (9th Cir. 2004). Moreover, “[o]n appeal, the government carries
the burden of establishing the legality of the waiver . . . .” Id.
Here, notwithstanding the district court’s ambiguous comment that Harkless
was facing “essentially a life sentence,” this record as a whole does not
demonstrate that his waiver was knowing and intelligent with respect to his
understanding of potential penalties. Id. at 1169; United States v. Forrester, 512
F.3d 500, 508 (9th Cir. 2008) (“By materially misstating the applicable sentence,
the court failed to fulfill its obligation to ‘insure that [the defendant] understands . .
. the possible penalties’ . . . .” (quoting Erskine, 355 F.3d at 1167) (brackets and
omissions in original)).
REVERSED and REMANDED.

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