STATE v. WILSON (2026)

Michael Paul Wilson (“Defendant”) appeals the circuit court's judgment following a jury trial during which he represented himself. He now has counsel on appeal, presenting six points relied on. We agree with his first point arguing the circuit court plainly erred by allowing Defendant to represent himself at trial following an inadequate Faretta ¹ hearing. We also agree with the State that the circuit court plainly erred by failing to ensure Defendant was presented with the written waiver of counsel form required by § 600.051.² The circuit court's judgment is vacated and the case is remanded for a new trial.

Background

The State filed a three-count indictment against Defendant, charging him with financial exploitation of an elderly or disabled person (§ 570.145.2(1), a class-E felony), resisting arrest (§ 575.150, a class-E felony), and abuse of an elderly, disabled, or vulnerable person (§ 565.184.2, a class-A misdemeanor). Defendant applied to the public defender's office for representation and a public defender entered his appearance. However, within 30 days of that appearance, the public defender filed a motion to withdraw as counsel. The circuit court took the motion up at a hearing on February 7, 2025, where the following exchanges took place:

THE COURT: [Defendant] has announced to the Court that he wishes to terminate the services of his public defender ․ and represent himself at trial. Is that what you want to do, [Defendant]?

[Defendant]: Yes, sir.

THE COURT: All right. [Defendant], here on the record, I want to explain to you I'm going to, probably, go over some of the things that I already told you, but I want to make sure you understand them clearly. And at trial you will be expected to conform your behavior, and your questions, and otherwise to what the law requires; you understand that?

[Defendant]: Yes, sir.

THE COURT: You'll be required to prepare your own jury instructions if you wish to submit any jury instructions. You'll be required to prepare your own motions if you want to submit motions to the Court. You'll be at a substantial disadvantage; you understand that?

[Defendant]: Yes, sir, I do. I do.

․.

THE COURT: All right. Well, there may be certain defenses, [Defendant], that are available to you․. Bear in mind that at trial, you have the right to testify or not, and that is, solely, your decision, nobody else's. We'll talk about that more during the trial if it comes to that.

At trial, I will expect you to be here on the morning of trial at 8:15 ready to go, ready to go through jury selection. The jury selection process involves, what's called, voir dire where each party is entitled to ask certain questions of the jury, but you can't ask just anything, and you can't ask any questions touching guilt or innocence, things like that.

And so, again, I'm going to expect you to understand what those rules are and to abide by those rules, and if you get outside of the – the rails of what those rules are and the State objects, then I certainly will sustain that objection, and tell you not to be asking those questions, or to go on into other areas. You are at a substantial disadvantage representing yourself.

Knowing all that, is it still your desire to continue to discharge your attorney and represent yourself?

[Defendant]: I thought you could get a different attorney or whatever, but, yeah, I mean, I do not feel comfortable with my attorney whatsoever, and I think that he's totally overworked, and I think all he wants to do is just pleas for everybody.

THE COURT: Okay. You've said two things, and the first thing you started out was – was, I thought I could get a different attorney. Before we went on the record, I explained to you that once you discharge the [public defender's office], you have discharged their entire system, so you won't get another public defender.

[Defendant]: All right.

THE COURT: You are entitled to hire counsel if you want a lawyer on your own, but that's up to you. That's, entirely, up to you, and if you hire an attorney, then we'll take a look at that, and we'll take a look at the trial date. If you do that next week, that's pretty easy. If you go down to the day of [–]

[Defendant]: I'm new at this. I –

THE COURT: Hey, hang on, hang on, let me finish. If you go down to the day before trial and say, well, yeah, I hired a lawyer last night, he better show up – he or she better show up ready to go to trial.

[Defendant]: Yes, sir.

THE COURT: Okay. So you understand that by terminating your public defender, you will not get another public defender?

[Defendant]: Yes, sir, I do.

THE COURT: All right. All right.

․.

THE COURT: The Court grants the counsel leave to withdraw, and I'll let [public defender] out of the case. I'm going to set your case for trial, [Defendant].

At the conclusion of a subsequent hearing on April 22, 2025, the following exchange took place:

THE COURT: And this is your chance to go get a lawyer if you want one.

[Defendant]: Yes, sir.

THE COURT: You might go make amends with the public defender system if you go over and talk to them and if you'll sit down long enough to let them speak without you interrupting them and telling them all your – why they're all wrong, you might actually get them to represent you again; okay?

[Defendant]: Yes, sir.

THE COURT: And so I'm going to continue the case. I'm going to put it back on for resetting. Give you a couple of weeks to see if you want to get about your life and get an attorney, and – and go on from there.

[Defendant]: Yes, sir.

Next, at a hearing on May 5, 2025, the following exchanges took place:

THE COURT: We're on the record[.]․ [Defendant] has been here several times. I have been trying to encourage him to get an attorney. [Defendant], I want to make sure we have a record. You indicated that the public defender had appointed [public defender] to represent you, and you called the public defender's office in Columbia to tell them that he was incompetent and you didn't want him to represent you.

[Defendant]: To file a complaint for him telling me to shut up during court.

THE COURT: Okay. Well – and so –

[Defendant]: And then you told me I couldn't have another public defender.

THE COURT: That's true that you have the one you're assigned. Did you not want [public defender] to complete your representation?

[Defendant]: If – if he'd look at my file, maybe, or something. But that hasn't been the case so far. I mean, I – I feel like I've been just kind of handed it to the whole way through. I mean –

THE COURT: Okay. You tell me that every time you come to court. But my question was, did you not want [public defender] to complete your representation?

[Defendant]: The way as it stands, no, sir.․

THE COURT: ․ Are you going to hire an attorney of your own?

[Defendant]: No, sir, I can't afford one, Your Honor.

․.

THE COURT: ․ I'm going to set your case for jury trial on June 10th. I would again encourage you to get an attorney –

[Defendant]: Yes, sir.

After a continuance, Defendant's case proceeded to a jury trial on July 16, 2025. That morning, the circuit court reiterated on the record that Defendant was present pro se, that he fired his public defender, and that he was repeatedly warned and advised against representing himself. Then the State brought up the Faretta issue:

[The Prosecutor]: Judge, just out of an abundance of caution, I – I'm looking at the docket entries, and I believe the Court did advise him of all the requisite matters concerning representing himself, but the docket entries don't make it clear which day that occurred on. There are sound recording log sheets. Without listening to the audio recordings, just to ensure there's not going to be any post-conviction relief issues, it may be prudent to do that on the record this morning to make sure that we have it.

THE COURT: Well, I think it's probably in there. And so doing that when you caution somebody to go get a lawyer at the morning of trial, it's not going to get him a continuance. So I'm probably to the point where it's not going to matter at this point. I think I've gone over that several times. I hope so. I intended to, and we'll just kind of go from there.

The jury convicted on all counts. Defendant was sentenced to 30 days of jail for the financial exploitation count, 10 days of jail for the resisting arrest count, and one year of jail for the abuse count.³

Defendant's first point on appeal seeks a new trial, contending the circuit court plainly erred by allowing Defendant to proceed pro se at trial.⁴ Defendant asserts the aforementioned exchanges were not sufficient to waive his constitutional right to counsel. He argues his oral waiver “was not voluntary, unequivocal, knowing and intelligent because the court failed to determine whether he understood the nature of the charges, potential defenses, and that he could not afterward claim inadequacy of representation[.]”⁵ The State does not address on appeal whether Defendant's oral waiver was constitutionally sufficient, instead conceding “[Defendant's] case must be remanded for a new trial because there is no evidence that [Defendant] was presented with the written waiver of counsel mandated by section 600.051, RSMo.”

Standard of Review

“[A]ppellate courts generally do not review unpreserved claims of error.” State v. Jones, 725 S.W.3d 577, 582 (Mo. banc 2025) (citing State v. Brandolese, 601 S.W.3d 519, 525 (Mo. banc 2020)). “Rule 30.20 alters this guiding principle[.]” Id. “Rule 30.20 states: ․‘[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice resulted therefrom.’ ” Id. (quoting Rule 30.20). “Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.” State v. Yount, 642 S.W.3d 298, 300 (Mo. banc 2022) (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (internal quotation omitted)).

“ ‘[P]lain errors affecting substantial rights’ are not ordinary errors.” Jones, 725 S.W.3d at 583 (quoting Rule 30.20). “They involve important and essential legal rights fundamental to our system of justice.” Id. “By their very definition, they are plainly erroneous, inherently self-evident, discernible, and undeniable, affecting the basic rights of a litigant.” Id. “They are the type of errors on which the circuit court should have taken corrective action because, left uncorrected, a manifest injustice may result.” Id. “Plain errors” are “facially evident, obvious, and clear[,] signif[ying] the circuit court definitively should have recognized the error.” Id. (quotation omitted).

Discussion

We find that Defendant has made a facial showing of a manifest injustice or miscarriage of justice and engage in plain error review of his first point relied on. See State v. Cox, 659 S.W.3d 651, 653-54 (Mo. App. S.D. 2023) (“A demonstrated violation of a defendant's right to counsel satisfies the defendant's burden to prove the manifest injustice or miscarriage of justice required by plain-error review.”). We conclude the circuit court committed plain error by failing to conduct an adequate Faretta hearing. We also agree with the State's candid concession that the circuit court committed plain error by failing to ensure Defendant “was presented with the written waiver of counsel mandated by section 600.051, RSMo.”

“The Sixth Amendment affords the right to those accused in all criminal prosecutions to have the assistance of counsel for their defense.” State v. Teter, 665 S.W.3d 306, 313 (Mo. banc 2023) (citing U.S. Const. amend. VI). “At the same time, the Sixth Amendment grants the accused the right to make his own defense.” Id. Should the accused desire to represent himself and waive his right to counsel, the circuit court must conduct a “thorough evidentiary hearing” to develop a record that the accused's waiver is voluntary, knowing, intelligent, and unequivocal. Id.; see also State v. Speer, 730 S.W.3d 358, 368 (Mo. App. E.D. 2026) (“A thorough evidentiary hearing must be held when a defendant chooses to represent themselves.”). The hearing is frequently referred to as a Faretta hearing. See Teter, 665 S.W.3d at 312-17 (citing Faretta, 422 U.S. at 806, 95 S.Ct. 2525). A record is necessary for the State to meet its burden to prove that the “waiver of counsel is valid and that the defendant waived the right to counsel with a clear understanding of those rights and the consequences of waiving those rights.” Cox, 659 S.W.3d at 654.

Whether the waiver is valid “depends on the particular facts and circumstances surrounding the case[.]” Teter, 665 S.W.3d at 313. There is “[n]o particular litany of questions” required. Id.; see also State v. Black, 223 S.W.3d 149, 155 (Mo. banc 2007) (“It is not possible to come up with a rigid procedure or ‘script.’ ”). But the accused “must be advised of the nature of the charges, the potential sentences if convicted, potential defenses to the charges, the nature of the trial proceedings, that he will have to proceed pro se if he refuses counsel, and the dangers of proceeding pro se.” State v. Masters, 651 S.W.3d 863, 868 (Mo. App. W.D. 2022) (citing Black, 223 S.W.3d at 154).

Here, the circuit court allowed Defendant to proceed pro se following several discussions about Defendant's decision to waive his constitutional right to counsel. The circuit court instructed Defendant that he was “expected to conform [his] behavior[ ] and [his] questions ․ to what the law requires[,]” to “prepare [his] own motions” and “jury instructions[,]” to participate in voir dire, and decide for himself whether to exercise his right to testify. The circuit court also cautioned Defendant that “there may be certain defenses ․ available to you” and repeatedly and properly cautioned Defendant that he would be at a “substantial disadvantage” proceeding pro se. Nevertheless, the circuit court's inquiry was inadequate. Though it was on the right track, without a record that Defendant understood the charges against him and the possible sentences, Defendant's waiver was not knowing and intelligent.⁶ See Black, 223 S.W.3d at 154 (“In Missouri, a defendant's waiver is not knowing and intelligent unless the court timely informs him as to the nature of the charges against him [and] potential sentences if convicted of the offenses[.]”) (quotation omitted). The circuit court's failure to thoroughly examine Defendant to establish a record that Defendant's waiver of his constitutional right to counsel was knowing and intelligent is the type of error that is facially evident, obvious, and plain, and accordingly constitutes plain error. See State v. Peck, 671 S.W.3d 400, 407-08 (Mo. App. W.D. 2023) (concluding the circuit court committed plain error by “overall” failing to advise the defendant even though the court “somewhat” advised the defendant during a Faretta hearing); Masters, 651 S.W.3d at 868-69 (concluding the circuit court committed plain error by “not conducting a sufficient Faretta hearing” when the court advised the defendant “somewhat” but did not inform the defendant about “the nature of the charges” or the “potential sentences he was facing if convicted[.]”).

Moreover, there is no record that Defendant was presented with the statutorily required written waiver of counsel form. “[T]he defendant must be given the opportunity to sign the written waiver of counsel mandated by Section 600.051.” State v. Smith, 697 S.W.3d 878, 883 (Mo. App. S.D. 2024) (citation omitted). That omission constitutes plain error. See id. at 884 (“Because section 600.051 protects a fundamental constitutional right[,] a violation of the statute constitutes evident, obvious, and clear error ․ [and] constitutes a manifest injustice or miscarriage of justice[.]”) (citations omitted); see also Masters, 651 S.W.3d at 868 (“A violation of Section 600.051 constitutes [(1)] evident, obvious, and clear error because Section 600.051 protects a fundamental constitutional right, ․ [and (2)] constitutes a manifest injustice or miscarriage of justice because a violation of the right to counsel is structural error that is presumed to infect the entirety of a trial.”) (citations omitted).

Conclusion

“The probability that a defendant will appeal either decision of the trial judge underscores the importance of requiring a defendant who wishes to waive his right to counsel to do so explicitly and unequivocally.” State v. Hampton, 959 S.W.2d 444, 447 (Mo. banc 1997) (quoting Hamilton v. Groose, 28 F.3d 859, 863 (8th Cir. 1994)). We vacate the judgment of the circuit court and remand the cause for a new trial consistent with this opinion.

FOOTNOTES

1.   Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

2.   Unless otherwise indicated, all statutory references are to RSMo 2016, including, as applicable, statutory changes effective January 1, 2017, and all rule references are to Missouri Court Rules (2025).

3.   The circuit court suspended the execution of the sentence for the abuse count in order to place Defendant on two years’ supervision by the Missouri Board of Probation & Parole. Defendant's sentences for financial exploitation and resisting arrest were consecutive with one another but concurrent to the sentence for abuse.

4.   Defendant's second, fourth, and fifth points challenge the sufficiency of the evidence for the financial exploitation, resisting arrest, and abuse counts, respectively. Defendant's third and sixth points request plain error review of the financial exploitation verdict director and the admission of propensity evidence, respectively. Because Defendant's first point is dispositive, we do not reach his other points.

5.   We do not address Defendant's argument that his oral waiver was “equivocal” because we conclude Defendant's waiver was not knowing and intelligent.

6.   The circuit court did ensure Defendant had a copy of the indictment.

JOSEPH L. HENSLEY, J.

JENNIFER R. GROWCOCK, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS