Whether the Sixth Amendment requires trial courts to explicitly warn defendants of the dangers of self-representation before finding a knowing and voluntary waiver of counsel, and whether deprivation of counsel at sentencing constitutes a structural error requiring no showing of prejudice

No question identified. : To the Honorable Brett Kavanaugh, as Circuit Justice for the United States Court of Appeals for the Sixth Circuit: In accordance with this Court’s Rules 13.5, 22, 30.2, and 30.3, Gerald Fields respectfully requests that the time to file his petition for a writ of certiorari be extended by 60 days, up to and including March 4, 2024.! The Court of Appeals issued its opinion on August 8, 2023 (“Opinion,” attached as Exhibit A) and denied rehearing en banc on October 5, 2023 (Order attached Exhibit B). Absent an extension of time, the petition would be due on January 8, 2024. Mr. Fields files this Application more than 10 days before that date. This Court would have jurisdiction over the judgment under 28 U.S.C. § 1254(1). Respondent Jay Forshey does not oppose this extension request. Background This case presents two key issues related to the fundamental right to counsel that are strong candidates for certiorari review and that different circuit courts—and even different panels within the circuit courts—handle inconsistently: 1. Whether Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975), imposes a duty on trial courts to make defendants aware of “the dangers and disadvantages” of self-representation before finding a 1 A 60-day extension would extend the date to file the petition for certiorari to March 3, 2024, a Sunday. Under this Court’s Rule 30.1, the extension “period shall extend until the end of the next day that is not a Saturday, Sunday, federal legal holiday, or day on which the Court building is closed”—here March 4, 2024. knowing and voluntary waiver of their right to counsel (as the Third and D.C. Circuits hold), or whether, despite failing to warn defendants of these dangers and disadvantages, trial courts may find they validly waived their right to counsel, if the record otherwise reflects a knowing and voluntary decision to proceed pro se (as the Second and Eleventh Circuits hold); and 2. Whether, in the aftermath of Weaver v. Massachusetts, 582 U.S. 286, 137 S. Ct. 1899, 198 L.Ed.2d 420 (2017) (plurality), deprivation of counsel at the critical stage of sentencing is a structural error that compromises “fundamental fairness,” such that a habeas petitioner need show no prejudice when raising the issue in a petition for a writ of habeas corpus. In June 2019, a jury convicted Applicant Gerald Fields of drug offenses in Ohio state court. Before sentencing, the trial court granted Mr. Fields’ trial counsel’s motion to withdraw. Mr. Fields retained new counsel, but before sentencing, that new counsel also moved to withdraw, citing Mr. Fields’ misunderstanding about the scope of representation. At no time did Mr. Fields indicate that he preferred that he assented to this particular counsel’s withdrawal. Before granting the motion to withdraw, the trial court posed one question to Mr. Fields about the implications: “You know youre still going to be sentenced today?” Mr. Fields indicated that he understood sentencing would proceed, and the court discharged his lawyer. The court then sentenced Mr. Fields, without counsel, to ten years in prison— the longest permissible prison term and significantly longer than Ohio’s highly discretionary sentencing laws required. Mr. Fields filed a timely notice of appeal to the Ohio Court of Appeals for Muskingum County, Fifth Appellate District. The state trial court appointed appellate counsel who raised six issues on direct appeal but failed to raise the structural error of the uncounseled sentencing. The state court of appeals overruled all assignments of error and affirmed the trial court’s judgment, and the Supreme Court of Ohio declined to exercise jurisdiction. Mr. Fields filed a pro se motion to reopen his direct appeal under Ohio R. App. P. 26(B). He argued, among other things, that his appointed appellate attorney had provided ineffective assistance of counsel in failing to assign error to the uncounseled sentence—a structural