State v. CloughState v. Clough
- Reporters:
- , ,
- Before:
- Griffith
This is a proceeding under RSA ch. 262-B (Supp. 1973) to have the defendant found to be an habitual offender. Under the provisions of
The first question related to a claim of retrospective application of the habitual offenders act and defendant concedes that the issue was determined adversely to him in State v. Vashaw, 113 *9 N.H. 636, 312 A.2d 692 (1973). That holding governs this case and determined that it was not a retrospective application of the habitual offenders act.
The second question reads as follows: “The State of New Hampshire seeks to use two convictions which resulted from guilty pleas entered without advice of counsel; further, the record of these convictions does not show that Defendant intelligently and knowingly waived his right to counsel. Does the use of these two convictions, for this purpose, violate Defendant’s right to due process of law under the 14th Amendment to the Constitution of the United States?”
In arguing that the convictions of the defendant in 1965 and 1969 for violation of
The narrow focus of the Argersinger case upon imprisonment rather than conviction as the test of constitutionally required counsel precludes its application to a collateral attack upon the uncounseled guilty pleas in this case. Following Argersinger, federal courts have refused to require counsel in a state misdemeanor case where there was a potential of imprisonment (Sweeten v. Sneddon, 463 F.2d 713 (10th Cir. 1972)) or to consider as invalid a misdemeanor conviction without counsel that did not result in imprisonment. Cottle v. Wainwright, 477 F.2d 269 (5th Cir. 1973), vacated on other grounds, 414 U.S. 895 (1973). In Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973), the court refused to invalidate a prior uncounseled conviction used to declare defendant an habitual offender, with a consequential ten-year loss of driver’s privileges, although defendant had served a prison sentence as a result of the conviction. See also Morgan v. Juvenile & Dom. Rel. Ct., 491 F.2d 456 (4th Cir. 1974). The defendant in this case was not incarcerated as a result of any of his three convictions, including the one in which he had counsel, and there is no alle *10 gation that he was indigent. There has been some disagreement in the collateral application of convictions obtained in violation of Argersinger (See Matthews v. State of Florida, 463 F.2d 679 (5th Cir. 1972); Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973)), and it is evident that the extent of its collateral use is unclear. Note, Argersinger v. Hamlin and the Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented By Counsel at Trial, 35 Ohio St. L.J. 168 (1974). However certain limitations on the extent of the Argersinger mandate are obvious. The two convictions in the present case appear immune to direct or collateral Argersinger attack since they did not result in imprisonment and there is no suggestion that the defendant was indigent. Under these circumstances their use under RSA ch. 262-B (Supp. 1973) appears proper. Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973); Cottle v. Wainwright, 477 F.2d 269 (5th Cir. 1973). Accordingly, question number two is answered in the negative.
In his brief and argument defendant suggests that the 1969 conviction is in violation of our own State constitution. N.H. Const. pt. 1, art. 15 was amended in 1966 and the following sentence added: “Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the State if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court.”
The language of our constitution does not rest the right to counsel upon the punishment of imprisonment but gives that right to every person accused of a crime “punishable by deprivation of liberty” whether or not such punishment is imposed. N.H. Const. pt. I, art. 15. Since violation of
While we have been diligent to afford individuals the greater rights to counsel afforded by our constitution beyond those afforded by the Federal Constitution (See Opinion of the Justices, 109 N.H. 508, 256 A.2d 500 (1969)) we note that the challenge to the 1969 conviction in this case is in a collateral proceeding. Ordinarily when a conviction has not been appealed or has been appealed and withstood direct attack, its validity may not be questioned collaterally if the court had jurisdiction. 5 F. Wharton, Criminal Law and Procedure § 2238 (P. Anderson ed. 1957); see Hickox v. *11 J. B. Morin Agency, Inc., 110 N.H. 438, 443, 272 A.2d 321, 324 (1970). However, it has been held in a collateral attack on a conviction by habeas corpus, that the jurisdiction of a court can be “lost” through failure to provide a defendant with counsel in violation of the Federal Constitution. Johnson v. Zerbst, 304 U.S. 458 (1938). Later habeas corpus cases have permitted evidentiary hearings to focus on federal constitutional deficiencies without reference to jurisdiction. Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). The evidentiary hearing in habeas corpus proceedings has provided a vehicle in this State for determining federal constitutional violations in the trial court after the time for direct appeal has expired. State v. Daigle, 114 N.H. 679, 327 A.2d 711 (1974); State v. Herbert, 108 N.H. 332, 235 A.2d 524 (1967).
The record in this case consists only of a certified copy of the record of the defendant’s plea of guilty to the 1969 offense and the recital in defendant’s motion to dismiss that he was without counsel. There is no claim of indigence and nothing to indicate whether or not the defendant knowingly and intelligently waived counsel. In accordance with the provisions of
Remanded.
All concurred.