STATE v. WALKER (2026)

Lydell Walker appeals his conviction, following a jury trial, on charges of first-degree kidnapping, first-degree assault, third-degree domestic assault, armed criminal action (two counts), and unlawful possession of a firearm. Walker claims that the circuit court erred in (1) accepting his waiver of the right to counsel when it was not unequivocal, knowing, intelligent, and voluntary; (2) refusing Walker's request for reappointment of counsel immediately before trial; (3) entering a written judgment of conviction for second-degree domestic assault when Walker was convicted of third-degree domestic assault; and (4) orally pronouncing a sentence of three years each on the two counts of armed criminal action but entering a written sentence of five years each on those counts. We affirm on Points I and II and remand on Points III and IV for the circuit court's correction of the judgment and sentencing record.

Background

On April 1, 2021, Walker arrived by car at a store in Kansas City, Missouri, where Victim was in the process of purchasing a cellphone. Walker entered the store, pointed a gun at a store employee, and pulled the trigger, but the gun did not fire. Walker then pointed the gun at Victim, forced her into the car, struck her with the gun, and took money and a cellphone from her. The State arrested and charged Walker, and the court appointed an assistant public defender to represent him.

At Defense Counsel's request, the court ordered a mental examination of Walker, which resulted in a June 2023 report stating that Walker “demonstrated adequate factual understanding of his pending case and the legal system,” exhibited no “abnormalities in his reasoning, comprehension, or judgment,” and was competent to proceed.

Defense Counsel moved to withdraw on September 12, 2023, stating that “Walker wants to fire [Defense Counsel] as his attorney and represent himself pro se.” On September 26, 2023, following an evidentiary hearing, the court granted Defense Counsel's motion to withdraw. During the hearing, Walker answered “Yes, sir” when the court asked if he understood that (1) if Defense Counsel were allowed to withdraw, he would have to either hire and pay an attorney or represent himself; (2) the Public Defender got to choose which attorney to assign to his case; and (3) Walker was putting himself in an “extremely difficult situation” by seeking to represent himself.

The questions from the court and Walker's answers at the September 26, 2023 hearing continued as follows:

Q: Understanding everything that I've told you about the difficulty that you're facing, the problems that you're going to have, you still are asking this court to allow [Defense Counsel] to withdraw and to represent yourself?

A: I can't put my life in that lady's hands.

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Q: But ․ you're still asking the Court to allow ․ [Defense Counsel to] withdraw and for you to represent yourself?

A: Yes, sir.

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A: ․ I still have a right to get my own attorney though, right?

Q: You do, but we're going to set a trial date ․

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Q: I want to be clear about this. Obtaining your own attorney is always an alternative, but that doesn't mean that as we get closer to a trial date [a continuance would be granted]. Do you understand that?

A: Yes, sir.

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A: ․ But I'd like to say something else.

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A: ․ I don't want [Defense Counsel] to represent me, but I do want an attorney who is going to represent me. But I'm just not going to put my life in her hands․ But I just want a representative who's going to represent me, but ․ I wouldn't want [Defense Counsel] to do it.

Q: So you understand, it's out of my hands. I can't appoint any other Public Defender to represent you. If you're getting the Public Defender, you get [Defense Counsel].

A: Well, I don't want [Defense Counsel], so go ahead.

Q: And you understand that I'm telling you this is a really bad idea?

A: I understand.

Q: Okay. I really want you to change your mind ․, but I'm not going to force [Defense Counsel] on you.

After a brief recess, during which Walker was allowed to read the six-page “Waiver of Right to Assistance of Counsel,” Walker confirmed to the court that he “had the time [he] requested, the time that [he] needed, to read through [the waiver].” The court then asked Walker,

Now, in light of what you've seen on that document, and in light of all the questions that we've asked, are you still asking this Court to allow [Defense Counsel] to withdraw, and to either proceed to trial with new counsel that you retain, or to represent yourself?

Walker responded, “Yes, sir,” and signed the waiver. In the waiver, Walker acknowledged the charges against him and the statutory ranges of punishment that were possible for each of the offenses charged, that he had the right to assistance of counsel in his defense, and that he wished to waive that right. Defense Counsel filed a “Memorandum of Withdrawal” on October 6, 2023, stating that Defense Counsel no longer represented Walker and that private counsel had entered an appearance for Walker, although no entry of appearance by private counsel appears in the record.

On October 20, 2023, proceeding pro se, Walker filed “Defendant's Motion to Remove Defense Counselor for Ineffective Assistance of Counsel and to Appoint New Counsel as Soon as Possible,” asking the court “to appoint an attorney who is going to represent me fully and fairly, adequately and competently.” No ruling on this motion appears in the record; at that point, Defense Counsel no longer represented Walker, and Walker continued to represent himself pro se for the duration of the proceedings.

The court offered Walker at least three more opportunities to exercise his right to counsel. At the April 3, 2024 pre-trial conference, the court told Walker, “[I]f you were to ask that [the] Public Defend[er] be reappointed to represent you, I would probably grant that request. That's not your request today, correct?” Walker answered, “No.” On April 8, 2024, immediately before trial began, the court told Walker that it was his “last chance to ask about counsel reappointment,” but that all the court could do would be to appoint the Public Defender, who “may” or “may not” reappoint Defense Counsel to represent Walker. The court mentioned a conversation off the record, involving a discussion as to whether the court could appoint a pro bono attorney or a different attorney, and the court advised Walker that neither was an option. When Walker said he did not want “the same attorney [he] had before,” the court reiterated, “I can't control that.” The court then asked, “So ․ you're going to represent yourself?” Walker responded, “Yes.”

After discussing pre-trial evidentiary issues with the parties, the court urged Walker to raise any issues “of concern,” and Walker inquired if “asking for an attorney” was “over with.” Indicating that it was not too late but reminding Walker that the court had no control over whom the Public Defender chose to represent him, the court asked Walker, “So, are you changing your mind now?” Walker responded, “Well, yeah,” but indicated that he thought the court could ask “the people” for “another attorney.” The court again reminded Walker that the choice was solely up to the Public Defender. When Walker made no further response (after an “extended silence” noted in the transcript), the court stated, “All right, we're going to have a trial. That's what you asked for․ [Y]ou signed [the waiver] on September 26th ․ and I've told you [repeatedly] that you shouldn't [waive counsel], but you've chosen to, so that's what we're going to do. We're going to have a trial.” Walker replied, “Okay, then we're gonna have a trial.”

At his June 13, 2024 sentencing hearing following conviction, Walker stated, “I didn't want nobody from the Public Defender. I asked for a pro bono.” After again stating that it had no authority beyond appointing the Public Defender, the court pronounced sentence. This appeal followed.

Analysis

Walker appeals his conviction, following a jury trial, on charges of first-degree kidnapping, first-degree assault, third-degree domestic assault, armed criminal action (two counts), and unlawful possession of a firearm. Walker claims that the circuit court erred in (1) accepting his waiver of the right to counsel when it was not unequivocal, knowing, intelligent, and voluntary; (2) refusing Walker's request for reappointment of counsel immediately before trial; (3) entering a written judgment of conviction for second-degree domestic assault when Walker was convicted of third-degree domestic assault; and (4) orally pronouncing a sentence of three years each on the two counts of armed criminal action but entering a written sentence of five years each on those counts. We affirm on Points I and II and remand on Points III and IV for the circuit court's correction of the judgment and sentencing record. For ease of discussion and because similar issues are addressed in both Points I and II and Points III and IV, respectively, we address those points together.

I. The circuit court did not err in allowing Walker to waive the right to counsel and represent himself at trial.

The record does not support Walker's claim that he did not validly waive his right to counsel. “Appellate review of the factors constituting a valid waiver of the right to counsel is de novo.” State v. Cothran, 715 S.W.3d 603, 613 (Mo. App. E.D. 2025) (quoting State v. Murray, 469 S.W.3d 921, 926 (Mo. App. E.D. 2015)).

A valid waiver of the right to counsel requires that the waiver be “(1) timely, (2) unequivocal, (3) knowing, and (4) intelligent.” State v. Johnson, 328 S.W.3d 385, 394 (Mo. App. E.D. 2010). A waiver is “knowing and intelligent” if the court informs the defendant of “the nature of the charges against him, potential sentences if convicted of the offenses, potential defenses he can offer, the nature of the trial proceedings, [and that], if the defendant refuses counsel, he will be required to proceed pro se and the dangers of proceeding pro se.” State v. Black, 223 S.W.3d 149, 154 (Mo. banc 2007) (quoting City of St. Peters v. Hodak, 125 S.W.3d 892, 894 (Mo. App. E.D. 2004)).

Missouri imposes two requirements “before a trial court can conclude that a defendant has effectively waived the right to counsel”: (1) a thorough Faretta ¹ evidentiary hearing, and (2) the opportunity to sign the statutory ² waiver of counsel form. State v. Kunonga, 490 S.W.3d 746, 764 (Mo. App. W.D. 2016). Because both requirements were met here, the burden shifts to Walker to establish that his waiver was invalid. Id. at 765.

During Walker's Faretta hearing, the court discussed with Walker the charges against him, the range of potential punishment, Walker's familiarity with the trial process, and the dangers of proceeding without a lawyer. Because the court did not specifically address “potential defenses” to the charges, Walker argues that the court failed to conduct the type of thorough Faretta hearing required. However, Walker relies on cases that involved clearly inadequate Faretta hearings, such as State v. Peck, 671 S.W.3d 400, 408 (Mo. App. W.D. 2023) (where the court failed to advise defendant of the “nature of the charges,” the “potential sentences” if convicted, or “potential defenses”) (quoting State v. Floyd, 635 S.W.3d 593, 598 (Mo. App. W.D. 2021)), and State v. Davis, 934 S.W.2d 331, 335 (Mo. App. E.D. 1996) (where the court “did not inform defendant of the elements of the charged offense, the range of punishment[,] the possible defenses and mitigating circumstances [or] ․ that [defendant] would be at an extreme disadvantage by appearing pro se”).

“[N]o specific litany” is required for an effective Faretta hearing. Kunonga, 490 S.W.3d at 763. And, “[a]lthough possible defenses are listed among the things the trial court should inquire into the defendant's knowledge about, [no case has] held that the singular failure to advise the defendant of possible defenses to the crime with which he is charged merits reversal.” State v. Garth, 352 S.W.3d 644, 653 (Mo. App. E.D. 2011).

Given the court's thorough discussion with Walker at the September 26, 2023 Faretta hearing (spanning twenty-seven pages in the transcript), Walker's assurance to the court that he was competent to proceed and that he understood the perils of proceeding without a lawyer, and Walker's signing of the § 600.051 waiver form, all of which was then buttressed by several additional instances of the court's encouraging Walker to accept the assistance of counsel immediately prior to trial, there is simply no evidence that Walker's waiver was either unknowing or unintelligent.

Nor was Walker's waiver equivocal. “[T]he importance of requiring an explicit and unequivocal waiver” is underscored by the likelihood that a defendant will challenge the trial court's decision either way. State v. Murray, 469 S.W.3d 921, 926 (Mo. App. E.D. 2015). “Because a defendant who is allowed to proceed pro se may argue on appeal that his right to counsel was improperly denied, ambiguous requests are not sufficient to assert the right.” Black, 223 S.W.3d at 153.

A waiver of the right to counsel that results from dissatisfaction with appointed counsel may be equivocal under limited circumstances, such as when counsel is not competent or professional. E.g., State v. Hampton, 661 S.W.3d 409, 416 (Mo. App. E.D. 2023) (holding that the defendant's waiver was equivocal where it was contingent on his appointed counsel's “not being honest, not trying to help [defendant] prove his case, and not doing what [defendant] asked him to do”). “However, a defendant is not entitled to have any particular attorney represent him.” State v. Thomas, 637 S.W.2d 81, 84 (Mo. App. W.D. 1982) (holding that the defendant's waiver was not equivocal where defendant “wanted the court to appoint him another attorney, one not in the public defender's office”). A defendant's choice of “self-representation only because of his generalized unhappiness with his appointed counsel is unavailing to establish a non-voluntary or equivocal decision.” State v. McGee, 781 S.W.2d 161, 162 (Mo. App. E.D. 1989). Nothing in the record indicates that Defense Counsel was either incompetent or unprofessional.

Walker's waiver of the right to counsel was unequivocal. As he made clear, he did not want Defense Counsel or any lawyer from the Public Defender's office to represent him; rather, he wanted only a “pro bono” lawyer, presumably a private lawyer at no cost. As the court repeatedly told Walker, the court could do nothing beyond appointing the Public Defender, who would then decide which assistant public defender would represent Walker. The court continued offering to appoint counsel even after, at Walker's request, Defense Counsel withdrew. Because Walker repeatedly refused that offer, the court had no choice but to accept his waiver, both after the Faretta hearing and again immediately before the trial began, correctly acknowledging that it could not force appointed counsel on a defendant who wished to proceed without one. See Faretta, 422 U.S. at 807. Points I and II are denied.

II. Because the circuit court plainly erred in entering the written sentence and judgment, the case is remanded for correction of the record.

Walker claims material differences in (1) the court's oral pronouncement of sentence and the written sentence entered for the two charges of armed criminal action, and (2) the court's written judgment of conviction for second-degree domestic assault (a class D felony), when Walker was convicted of third-degree domestic assault (a class E felony). The State concedes these points. We agree.

Clerical mistakes in the written recording of the judgment and sentence may be corrected nunc pro tunc. State v. Myers, 720 S.W.3d 11, 21 (Mo. App. W.D. 2025). “Clerical mistakes occur when ․ a written sentence and judgment[ ] (1) fails to accurately denominate defendant's counts and convictions on each count; (2) fails to accurately memorialize the jury's verdicts; and/or (3) fails to accurately memorialize the trial court's decision as it was announced in open court.” State v. Brown, 558 S.W.3d 105, 114 (Mo. App. E.D. 2018). “Where an oral pronouncement [of sentence] materially differs from the written judgment, the oral pronouncement controls.” Myers, 720 S.W.3d at 21.

Walker's conviction for third-degree domestic assault, although accurately recorded in the court's original written judgment, was mistakenly recorded as “second-degree domestic assault” in the court's June 18, 2025 amended judgment. A discrepancy also occurred between the court's oral pronouncement of sentence and the amended judgment. For each of the two counts of armed criminal action (Counts 5 and 7), the court's oral pronouncement of sentence was three years, with Count 5 to run consecutively to Count 4 (third-degree domestic assault) and Count 7 to run consecutively to Count 6 (first-degree assault). But the amended judgment reflects a sentence of five years on each count of armed criminal action. In addition, the amended judgment states that, as to Count 5, the sentence was both “Consecutive” and “Concurrent” to Count 6. The same error was made in recording the sentence to Count 7 (that it was both “Consecutive” and “Concurrent” to Count 6). No further action in the circuit court was taken to correct these clerical errors.

The State also raises an argument that the court's oral pronouncement of 3-year sentences on the armed criminal action counts should be corrected, as the sentence is below the 5-year minimum imposed by § 571.015.1.³ But “[n]unc pro tunc cannot be used to add anything to the judgment that is not in some way already reflected in the record.” McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. banc 2014). Because “[t]he State could have directly appealed or cross-appealed alleging error in [Walker's] sentencing [but] did not,” this “sentencing issue ․ is not before us.” State v. Harris, 728 S.W.3d 13, 17 (Mo. App. W.D. 2025), transfer denied (Nov. 4, 2025). We therefore do not address this argument.

Because we agree that the amended judgment must be corrected to reflect the sentences as orally pronounced on Counts 5 and 7 for armed criminal action and to accurately reflect the conviction for third-degree domestic assault, Walker's Points III and IV are granted.

Conclusion

We reverse and remand on Points III and IV with instructions to the circuit court to enter a nunc pro tunc order to (1) conform the court's written judgment to the court's oral pronouncement of sentence and (2) correct the judgment of conviction on Count 4 to the class E felony of third-degree domestic assault. We affirm the judgment in all other respects.

FOOTNOTES

1.   Faretta v. California, 422 U.S. 806, 807 (1975), recognized that “a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so”; thus, the trial court may not “force a lawyer upon him, even when he insists he wants to conduct his own defense.” The purpose of a Faretta hearing is “to ensure that a defendant's waiver is knowing and intelligent.” State v. Black, 223 S.W.3d 149, 155 (Mo. banc 2007).

2.   Section 600.051 provides that, once a court “determines that defendant has made a knowledgeable and intelligent waiver of the right to assistance of counsel,” the defendant must sign a written waiver that contains the following:1. The nature of the charges against him;2. The “right to a trial by a jury” on the charges;3. The “maximum possible” punishment on the charges;4. That the judge is not bound by a prosecutor's recommendations;5. That a finding of guilt will likely result in a “sentence of confinement”; and6. “That, if indigent, and unable to employ an attorney, the defendant has a right to request the judge to appoint counsel to assist the defendant in his defense against the charge.”§ 600.051.1(1)-(6). All statutory references are to the Missouri Revised Statutes (2023), unless otherwise noted.

3.   The version of § 571.015.1 in effect in April 2021 provided a minimum sentence of five years for armed criminal action while “unlawfully possessing a firearm.”

Karen King Mitchell, Judge

Thomas N. Chapman, Presiding Judge, and Janet Sutton, Judge, concur.