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Is There a Right to Proceed Pro Se on Appeal?

By Robyn Hagan Cain on September 21, 2012 | Last updated on March 21, 2019

Perusing unpublished opinions may seem like a waste of time, but the appellate courts often offer mini-lessons on legal practice within those non-binding words.

For example, this week the Fourth Circuit Court of Appeals discussed a defendant's right to proceed pro se on appeal.

Michael J. Pavlock was convicted following a jury trial of 12 counts of wire fraud and 3 counts of making false entries in a bankruptcy document. He was sentenced to 324 months in prison. Pavlock appealed to the Fourth Circuit, challenging the sufficiency of the evidence supporting each count of conviction. He also filed multiple motions asking the court for permission to represent himself.

The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel. In Faretta v. California, the Supreme Court decided that the defendant also "has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so."

The Court once again considered this issue of self-representation in Martinez v. Court of Appeal of California, a 2000 case examining a defendant's right to self-representation in a criminal appeal. In Martinez, the Court reasoned that neither the holding nor the reasoning in Faretta requires a constitutional right to self-representation on direct appeal from a criminal conviction.

Supreme Court precedent wasn't Pavlock's only obstacle.

Fourth Circuit Local Rule 46(f) addresses pro se representation before the appellate court. It states, in part, "An individual may proceed without the aid of counsel, but should so inform the Court at the earliest possible time."

Here, the Fourth Circuit noted that Pavlock "delayed considerably in informing this court of his desire to proceed pro se" and failed to identify issues for appeal that had not been addressed by his attorney. Accordingly, the appellate court rejected his request.

The right to counsel may be absolute, but the right to proceed pro se on appeal is not.

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