State v. LachState v. Lach
The State here appeals an order of the Law Division which dismissed twо municipal summonses for operating a motor vehicle while on the suspended list, on grounds that the trial court failed to providе the defendant with the opportunity to apply for court-appointed counsel based on a showing of indigency.
Defendant, Stanley Lach (Lach) appeared pro se throughout the convoluted procedural history of these cases. Although served with notice of the State‘s appeal, he failed to file a timely answering brief, and an order was entered precluding such filing.
The State urges that the defendant knowingly waived his right to be reprеsented by an attorney and alternatively, should it be found that he did not knowingly waive such right, the complaints should be remanded for trial with appropriate representation.
We affirm the Law Division‘s finding that the record was inadequate to disclose a knowing waiver of counsel. We reverse the order of dismissal, and remand.
PROCEDURAL HISTORY
Lach received two summonses in Newton on February 1, 1984. The first charged driving while оn the suspended list in violation of
On February 3, 1984 he received another summons in Newton for driving while on the suspended list.
After a number of delays, partly arising out of Lach‘s request for time tо secure counsel and partly by reason of State witness unavailability, all three cases were heard on July 17, 1984 in the Municipal Cоurt of Newton. A motion for dismissal for failure to provide a speedy trial was rejected.
Defendant appealed to the Law Division pursuant to
Subsequently, the assignment judge determined to specially assign a Law Division judge to hear and determine the matters in place of a municipal court judge. At this second municipal proceeding, Lach complained about tardy notification of his right to assigned counsel at his first municipal trial. He was advised by the trial judgе that there had been a remand for a full trial on all three charges, and that he had a right to counsel. Lach protested thаt “If I have no court-appointed lawyer or someone I can have assistance to me, even in any condition, it‘s still against my rights.”
In a dialogue with the trial judge, it appeared that Lach did receive a letter from the Municipal Court of Newton advising as to the procedure to follow when making an application for
Thе judge indicated that he was satisfied that Lach had been advised of his right to either privately retained counsel or assigned cоunsel if he could not afford private counsel, and determined to proceed with the trial. Lach was found guilty of the two driving while suspеnded charges, and not guilty on the driving without insurance charge.
At the subsequent appeal of the municipal court convictions under
THE STATE‘S CONTENTIONS
The State does not argue that Lach had no right to counsel for the offenses charged (see
Upon careful review of the transcript, we are satisfied that although Lach was clearly aware that he had a right to counsel in a general sense, his waivеr of that right was not demonstrated within the standards compelled by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Rodriguez as more recently recognized and articulated by us in State v. Guerin, 208 N.J. Super. 527 (App.Div. 1986) and State v. Abbondanzo, 201 N.J. Super. 181 (App.Div. 1985). Here, there was not the “searching and painstaking inquiry”1 necessary tо decide that there was a knowing and competent waiver of counsel. For the inquiry to be complete, there must be an еxplanation by the judge of the “range of allowable punishments,”2 possible defenses and circumstances in mitigation;
If anything, Lach appears to have come closer to asking for appointed counsel rather than to having knowingly waived his right. Taken together with his claim that although he was employed, he could not afford counsel, the matter should not have procеeded without counsel merely because he did not respond to the initial municipal notice reflecting rights to appointed counsel.
Although these conclusions require that the two municipal convictions be reversed in order to assure defendant his full rights, such assurance does not require dismissal of the complaints. Defendant was not acquitted. As was done in Rodriguez, Guerin, and Abbondanzo, we reverse and remand for a new trial on both convictions. We include in this remand the following instructions:
(a) The matters must be tried before the municipal court оr a Superior Court judge designated by the assignment judge to act as a municipal judge.
(b) Pursuant to
(c) In the event that the court should conclude that Lach is not indigent, and an appearance by independent counsel has not been entered, the court shall assign counsel to Lach, and shall make appropriate provision for counsel‘s compensation by Lach in reasonable weekly installments consistent with his income.
(d) In the event Lach affirmatively asserts his intention to proceed without counsel, then, prior to so proceeding the court shall conduct a comprehensive inquiry and painstakingly caution
Reversed and remanded as above qualified.