STATE of New Mexico, Plaintiff-Appellee, v. Quirino Larry ACUNA, Defendant-Appellant.
No. 8363.
Supreme Court of New Mexico.
April 24, 1967.
Rehearing Denied June 26, 1967.
428 P.2d 658
OMAN, Judge, Court of Appeals.
Boston E. Witt, Atty. Gen., Gary O. O‘Dowd, Asst. Atty. Gen., Santa Fe, for appellee.
OPINION
OMAN, Judge, Court of Appeals.
On June 11, 1964, the defendant, who had been charged in juvenile court with an offense which would be a felony if committed by an adult, was certified by the juvenile court to the district court for proper criminal proceedings, pursuant to the provisions of
The defendant and his mother were personally prеsent in the juvenile court at the time these certification proceedings were conducted. They were advised by the court that defendant had the right to obtain and be represented by counsel, but defendant was not advised that counsel would be furnished him without expense to him or his family, and the court did not offer or furnish him with counsel. At the time neither thе defendant nor his family was financially able to employ counsel.
The district court appointed competent counsel to represent defendant, and he wаs
On April 6, 1966, defendant filed a motion, pursuant to the provisions of
The first question рresented, and the one we find determinative of this appeal, is that of the right of defendant to be furnished with court-appointed counsel to represent him in the juvenile court proceedings.
Defendant had the right in the criminal prosecution to be defended by counsel.
The defendant, pursuant tо the Sixth Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment, was also entitled to have the assistance of counsel in the criminal proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964).
The right to be furnished counsel extends to every critical stage of the criminal proceedings. State v. Vaughn, supra; State v. Anaya, supra.
The authorities almost universally hold that juvеnile court proceedings are entirely different in nature and character from criminal proceedings. In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943). In State v. Florez, 36 N.M. 80, 8 P.2d 786, this court defined such proceedings as a “speciаl statutory proceeding.”
Unless we can say the certification proceedings in the juvenile court were a critical stage of the criminal proceedings whiсh subsequently followed in the district court, the defendant had no constitutional or statutory right to the assistance of court-assigned counsel in the juvenile court. All that was accomplished by the certification proceedings was to transfer jurisdiction over the defendant from the juvenile court to the district court. There is nothing in the record to еven suggest that anything done in the juvenile court proceedings in any way affected, or had any bearing upon, the subsequent criminal proceedings, the judgment of guilty entered upon the plea, or the sentence imposed. To constitute a critical stage of a criminal proceeding, the particular proceeding or aсt in question must be one at which, or in connection with which, the accused‘s constitutionally protected rights may be lost or adversely affected. See Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).
The defendant hаd no constitutionally protected right or any other right, to exemption from criminal prosecution. He was charged in a criminal complaint, given a preliminary heаring, informed against, and otherwise accorded all the rights to
Defendant particularly relies upon the cases of Hyun v. Landon, 219 F.2d 404 (9th Cir. 1955), affd. 350 U.S. 990, 76 S.Ct. 541, 100 L.Ed. 856, and Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). He cites the Hyun case for the proposition that the: “* * * Federal courts have recognized deportation proceedings as ‘civil in nature, not criminal,’ but have nevertheless held that the right to be there represented by counsel was an essential element of due process. * * *”
With this we agree, but we would point оut that in that case, one of the contentions of Hyun was that the action of the Immigration Service in taking depositions in Honolulu deprived him of the essential ingredients of duе process because “* * *” he was financially unable to transport his counsel to Honolulu or procure Honolulu counsel to represent him at the depositiоns. “* * *” He contended that the government should have transported the witnesses to the West Coast for the depositions, or in the alternative, have provided transportation to Hawaii for him and his attorney.
In disposing of this contention, the court observed that he was given the right to be represented by counsel and that the court had,
“* * * repeatedly held that financial inability of an alien to insure attendance of himself or his attorney, or both, at a place where depositions are being taken is not а denial of due process. * * *”
In the Kent case, the failure to provide counsel was not involved. The juvenile attacked the waiver of jurisdiction by the juvenile court on a numbеr of grounds, none of which was the failure to furnish him counsel. In fact, he was represented by counsel. The order of the juvenile court was held to be invalid because of the deprivation of the juvenile‘s rights under the Juvenile Court Act of the District of Columbia. The case involved the construction of a statute applicable only to the District of Columbia. It is true some of the language of the majority might be considered as suggesting that in some stages of certain juvenile proceedings the juvenile is entitled to be furnished сounsel, if he has none, and if he is indigent, but, as already stated, the decision in no way turned on this question, and the opinion certainly cannot be construed as even suggesting that сounsel must be furnished in the juvenile court in a situation such as is presented by the facts in the instant case.
Finding no error, the order and judgment of the court denying the defendant‘s motion should be affirmed.
It is so ordered.
CHAVEZ, C. J., and MOISE, J., concur.
OPINION ON MOTION FOR REHEARING
OMAN, Judge, Court of Appeals.
Subsequent to the filing of our opinion in the above case, the decision of the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) has been issued.
We extended the time within which a motion and briefs on rehearing might be filed, in order that the Gault decision could be considered by us. A motion and briefs were filed and have been carefully considered.
Nothing decided in the Gault case requires us to alter оur conclusion heretofore reached in this case.
The Gault case involved the question of the applicability of the constitutional
As stated by the court in its opinion:
“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency whiсh may result in commitment to an institution in which the juvenile‘s freedom is curtailed, the child and his parent must be notified of the child‘s right to be represented by counsel retained by them, or if thеy are unable to afford counsel, that counsel will be appointed to represent the child.”
As pointed out in our opinion in the present case, this was a criminal proceeding and defendant was accorded all the rights to which anyone charged with a crime in New Mexico is entitled.
The Motion for Rehearing is denied.
CHAVEZ, C. J., and MOISE, J., concur.