STATE of North Dakota, Plaintiff and Appellee, v. Kenneth L. ORR, Defendant and Appellant.
Crim. No. 1073.
Supreme Court of North Dakota.
Oct. 1, 1985.
First Trust suggests that we consider assessing its costs and attorney‘s fees on this appeal against Conway‘s share of the estates as an appropriate method of dealing with her unrestrained and unsubstantiated accusations. We agree.
We have fully examined the record and carefully considered her issues to satisfy ourselves that there was no serious symptom in her legal hypochondria. We have found none. We conclude that her sweeping accusations are unreasonable and that her claims of misconduct by First Trust are entirely unsubstantiated.
This public airing of her private obsession ought to be at her personal expense. As the Nebraska Supreme Court recently observed: “It seems to us that the probate code should not be construed so as to permit one heir or devisee to finance his or her lawsuit against another heir or devisee out of the funds of the estate, ...“; In Re Estate of Kesting, 220 Neb. 524, 371 N.W.2d 107, 109 (1985).
Accordingly, we exercise our powers under
VI. CONCLUSION
We hold that there is no evidence that the Reconstructed Account was erroneous and we hold that the county judge did not err in excluding further evidence concerning that prior period at the later hearing on the final account. We also hold that First Trust satisfactorily performed its fiduciary duties to collect assets and account for them.
We affirm the Order Approving the Reconstructed Account, the Order Approving the Final Account and Directing Distribution, and the county court‘s order approving compensation and expenses to First Trust and its attorney. We direct that First Trust be paid its reasonable compensation, attorney‘s fees and costs on this appeal, as determined and approved by the county court, from the remaining share of the estates distributed to Conway.
ERICKSTAD, C.J., VANDE WALLE and GIERKE, JJ., and PEDERSON, Surrogate Justice, concur.
PEDERSON, Surrogate Justice, sitting in place of LEVINE, J., disqualified.
Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas E. Merrick, Jamestown.
LEVINE, Justice.
Kenneth L. Orr appeals his sentence for driving under the influence in violation of
On July 6, 1984 Orr was charged with driving under the influence of intoxicating liquor (DUI). The State subsequently moved to amend the complaint to allege that this was Orr‘s second DUI offense within five years and that if convicted he should be sentenced as a second DUI offender pursuant to
Orr unsuccessfully resisted the State‘s motion, claiming the municipal court judgment could not be used as proof of his previous DUI conviction because he had not been represented by a lawyer in that proceeding and there was no evidence on the record that he had been advised of, and waived, his right to counsel.
Following a bench trial Orr was found guilty of DUI and sentenced to four days in jail (26 days suspended) to be served consecutively, given a $500.00 fine and ordered to submit to alcohol evaluation. Section
Orr contends that his municipal court DUI conviction, which was based upon a guilty plea, could not be used to enhance his punishment for the subsequent DUI conviction pursuant to
1. First or Second Offense?
At the outset, we note that the trial court failed to articulate its reasons for imposing the particular sentence, in spite of the mandate of
“All sentences imposed shall be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement shall become part of the record of the case.”
Such a statement would have obviated our need to question whether Orr was sentenced as a first offender or as a second. If Orr were sentenced as a first offender, the issue he raises is a non-issue since there would be no enhancement by virtue of a prior conviction. If, on the other hand, his first conviction were the impetus for the trial court‘s sentence of incarceration then the issue raised by Orr is properly before us. The mere fact that four days’ imprisonment was imposed does not by itself provide the answer, because that sentence could have been imposed for either a first or second offense under
In spite of the absence of a concise explanation for the sentence by the trial court,1 we are able to glean from the record a basis to conclude that the trial court did sentence Orr to jail only because he was a second offender. The complaint was amended, with leave of court, and over
“Well, I made the ruling [i.e., prior conviction was valid for purpose of enhancing sentence for subsequent conviction] and I‘m going to stand by it and Mr. Orr I sentence you to pay the fine of $500.00, thirty days in jail, twenty-six suspended....” [Emphasis added.]
Taken as a whole, the record satisfies us that Orr was sentenced to incarceration solely because he was a second offender.
2. Waiver
One accused in a criminal proceeding has the right to the assistance of counsel and the court must inform an accused of that right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Heasley, 180 N.W.2d 242 (N.D.1970);
There was nothing in the municipal court record to indicate that Orr had been advised of, and waived, his right to counsel prior to pleading guilty. Orr does not recall if he was advised of his right to counsel but states that he was not represented by an attorney.
The county court, relying on the presumptions of
The trial court erred in presuming that Orr had validly waived that right when the record did not affirmatively indicate such a waiver.2 State v. Gustafson, 278 N.W.2d 358 (N.D.1979); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Such a presumption is impermissible because waiver has particularly far-reaching effects in the context of guilty pleas. Insofar as a guilty plea is itself a conviction it constitutes a relinquishment of three important constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right of confrontation. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We cannot presume a waiver of these three important constitutional rights from a silent record. State v. Hagemann, 326 N.W.2d 861 (N.D.1982); see also State v. Nordstrom, 331 N.W.2d 901 (Minn.1983). Consequently, the county
3. Enhancement
Having determined that it has not been shown that Orr waived his right to counsel, our next inquiry goes to the effect of Orr‘s uncounseled DUI conviction on the present case. The issue is whether or not Orr may be sentenced to mandatory imprisonment as a second DUI offender pursuant to
Orr argues that Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a plurality per curiam opinion, prohibits use of his first ordinance conviction to enhance his present sentence to include imprisonment. The State counters that Baldasar is not binding precedent because it forbids using a prior uncounseled conviction only when that conviction was punishable by over six months’ imprisonment. We agree that because Orr‘s first DUI conviction was not punishable by over six months’ incarceration, Baldasar does not preclude its use to enhance Orr‘s present sentence. The State also contends that Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), controls and validates Orr‘s enhanced punishment. We disagree. Resolution of the parties’ arguments requires careful analysis of Baldasar and Lewis.
In Baldasar, the petitioner was convicted of a felony and sentenced to a one-to-three-year prison term. At trial, his counsel objected unsuccessfully to evidence establishing an earlier misdemeanor conviction, without counsel or valid waiver of counsel and for which Baldasar received no imprisonment. Under Illinois law, the first conviction enhanced the subsequent offense from a misdemeanor punishable by fine and imprisonment for up to one year to a felony punishable by fine and imprisonment for up to three years. The Supreme Court reversed the conviction in a concurrence by Justice Blackmun and two concurrences written by Justices Stewart and Marshall, joined by Justices Brennan and Stevens.3 There was no majority rationale for the result.
We follow the Supreme Court‘s direction in interpreting the holding of a plurality decision.
“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....‘” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).
We thus review the respective positions of the assenting five Justices in Baldasar contained within the three concurrences in order to discern the narrowest grounds of their divergent positions.
In Justice Blackmun‘s concurrence he maintained his dissenting position in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979),4 repeating his bright-line test. That test requires counsel to be appointed when an indigent defendant is charged with a non-petty offense or is actually sentenced to a prison term. Because Baldasar‘s first conviction was for an offense punishable by more than six months’ imprisonment, and because counsel was not appointed or waived, Baldasar‘s first conviction was invalid and could not be used to support enhancement.
Justice Marshall wrote that even if, under Scott, actual imprisonment determines the constitutional right to counsel, the de-
Justice Stewart stated that imposing an increased prison term solely because of a prior conviction violated the rule of Scott. 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring).
The opinions of Justices Marshall and Stewart would, we believe, preclude the use of Orr‘s first conviction for enhancement purposes. They focused on the increased imprisonment for the subsequent offense and gave no regard to the authorized penalty for the first offense. They share the view that an unreliable prior conviction, regardless of the length of potential imprisonment, cannot be used for enhancement.
However, the fifth and deciding vote is Justice Blackmun‘s. Justice Blackmun‘s bright-line test would not preclude the use of Orr‘s prior conviction for enhancement purposes because the penalty for Orr‘s first conviction was not more than six months’ imprisonment and Orr was not actually imprisoned. Thus, under Justice Blackmun‘s view, Orr‘s first conviction was valid and therefore available for enhancement purposes.
It is our view that, on its narrowest grounds, Baldasar held only that an uncounseled misdemeanor conviction punishable by more than six months’ imprisonment cannot under the sixth amendment be used to increase a prison term under an enhanced penalty provision.
Orr was neither imprisoned nor was his prior offense punishable by more than six months’ imprisonment. Therefore we conclude that Baldasar does not preclude the subsequent use of Orr‘s prior uncounseled ordinance conviction under an enhanced penalty provision.
The State further argues that this case is controlled by Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).
In Lewis, the court held a defendant‘s prior uncounseled felony conviction, even though invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may support a subsequent conviction under the Omnibus Crime Control and Safe Street Act of 1968.
The Court distinguished Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (uncounseled conviction cannot be used for enhancement of punishment under a recidivist statute); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (uncounseled conviction cannot be considered by court in sentencing defendant after later conviction); and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (uncounseled conviction cannot be used to impeach general credibility of defendant), on the ground that in each of those cases the
The State asserts analogously that
We disagree. Section
The federal statute is further distinguishable in that it allows a convicted felon to administratively remove his disability and thus lawfully possess a firearm. Section
4. Article I, Section 12, N.D. Const.
Orr also asserts his sentence violates
Section 12 of the North Dakota Constitution is a guarantee that one accused of a crime is entitled to counsel. State v. Whiteman, 67 N.W.2d 599 (N.D.1954). This right has long been zealously guarded not only by the courts of this State, see, e.g., State v. Heasley, 180 N.W.2d 242 (N.D.1970); State v. Whiteman, supra; State v. O‘Neill, 117 N.W.2d 857 (N.D. 1962), cert. den., 373 U.S. 939, 83 S.Ct. 1544, 10 L.Ed.2d 694 (1963), but also by the Legislature as far back as 1895. See, e.g., North Dakota Revised Code 1895 § 7749 (in all criminal prosecutions accused shall have the right to defend with counsel) R.C.1895 § 8075 (defendant at arraignment must be informed of right to counsel and counsel must be appointed if desired); R.C.1895 § 8407 (indigent criminal defendant entitled to court-appointed attorney in district court); R.C.1895 § 6607 (county court of increased jurisdiction to appoint counsel for indigent defendant in misdemeanor case). Prior to statehood the right to counsel was acknowledged by the territorial laws. See Revised Code of the Territory of Dakota 1877, Code of Criminal Procedure § 11(2); Compiled Laws of the Territory of Dakota 1887 § 7035(2).
We have traditionally recognized that the right to counsel under our Consti-
Underlying our judicial constitutional interpretation that § 12 provides the key to a fair trial is the belief that counsel will, if not guarantee, then at least facilitate the optimum outcome for a defendant in a given case. Uncounseled convictions, thus, are to be rightly regarded with skepticism. They are unreliable.7 Scott, supra; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Tucker, supra; Burgett, supra. We agree that the denial of the right to counsel impeaches “the very integrity of the fact-finding process,” Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), and that the right to counsel is “fundamental and essential to a fair trial.” Gideon v. Wainwright, supra. Long before Linkletter and Gideon our own state courts recognized the substance of this principle when they considered issues of waiver of counsel. See, e.g., State v. Throndson, 49 N.D. 348, 191 N.W. 628 (1922); State v. Thompson, 56 N.D. 716, 219 N.W. 218 (1928).
We are guided by such federal cases as Argersinger, supra; Scott, supra; Tucker, supra; and Burgett, supra, which recognize in unequivocal fashion that an uncounseled conviction is too unreliable to support the sanction of imprisonment. We believe that whether the imprisonment is a result of a first conviction, as in Scott, or because of a conviction for a subsequent offense, as in Orr‘s case, makes no difference. Merely because Orr was validly convicted of a second offense does not confer reliability on his earlier uncounseled conviction. Furthermore, because the defect in Orr‘s prior conviction was the denial of counsel, he would, in effect, “suffer anew” the deprivation of his right to counsel if he were subsequently imprisoned solely because of the previous uncounseled conviction. See Burgett, supra. To allow an accused‘s punishment to be enhanced to include imprisonment solely because of a prior uncounseled conviction violates the dictate of
We hold that absent a valid waiver of the right to counsel the resulting conviction cannot, under
As a practical consequence of our holding, municipal courts (and all others) must obtain a valid waiver of counsel on the record or afford a nonindigent defendant the opportunity to retain counsel, or appoint counsel for an indigent DUI defendant,8 regardless of the penalty to be imposed, if enhancement of punishment for a subsequent conviction is not to be precluded.9 While this may constitute an economic burden, our constitution must prevail. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (there can be no equal justice where the kind of trial a person gets depends on the amount of money he has); Watson v. City of Memphis, Tenn., 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963) (vindication of constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them). We recognize the concentrated legislative effort to deter those who endanger us all by their drinking and driving. We believe that promotion of such a strong public policy merits the necessary allocation of public funds to pass constitutional muster. Of course, not all DUI defendants are indigent and not all DUI violations will recur. For those that are and do, we can only ascribe to the principle that our constitution applies to ever-changing needs and problems facing society and implementation of its edicts may often require varying and innovative adaptations.
5. Burden of Proof
The final issue to be resolved is the allocation of the burden to prove the validity of a prior uncounseled conviction to justify its use to enhance punishment, when the record is silent on waiver.
In Burgett v. Texas, supra, the Supreme Court held that a prior felony conviction was presumed void and could not be used to enhance punishment, where the record did not indicate that the defendant had, or waived, counsel. Because of an accused‘s constitutional right to counsel in a felony case, the record‘s failure to affirmatively show counsel or waiver was fatal. The same reasoning applies to this case where we have held that an accused is constitutionally entitled to counsel in a misdemeanor case if the resulting conviction is sought to be used for enhancement to include imprisonment. Here, the silent record is insufficient to overcome the presumption that the prior uncounseled conviction was void for enhancement purposes.
Therefore, the State, in seeking to imprison Orr as a second offender based on his earlier presumptively void uncounseled conviction, had the burden to overcome this presumption once Orr raised the issue in a pretrial proceeding by resisting the motion to amend.10 To meet its burden the State
could rely on parol or other evidence that Orr waived his right to counsel.11 This the State has failed to do.
Accordingly, we reverse and remand with instruction that Orr be sentenced without regard to the prior municipal court DUI conviction.
MESCHKE and GIERKE, JJ., concur.
VANDE WALLE, Justice, concurring specially.
For reasons stated later herein, I concur in the result reached by the majority opinion. I agree with much of what is stated therein. I write specially to express my doubt concerning the particular posture of this case in which the defendant does not even allege he was not informed of his right to counsel at the time of his plea of guilty in municipal court but only alleges he does not remember whether or not he was so informed. The majority opinion concludes that this is sufficient to cause the State to prove the validity of the prior uncounseled conviction. Footnotes 10 and 11 of the majority opinion analogize this to the burden the State has when it seeks to introduce evidence obtained by a warrantless search and seizure because warrantless searches and seizures are presumptively unconstitutional. But the problem with such an analogy is that the first conviction, uncounseled though it was, is not presumptively unconstitutional. Perhaps these statements reflect my difficulty with the concept that a conviction which is unquestionably valid in and of itself is invalid for the purpose of enhancement.
Secondly, I am not convinced there is a good reason for concluding that Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), is not applicable. The rationale that the law involved in Lewis did not enhance punishment as a result of a prior conviction but rather enforced an essentially civil disability through a criminal sanction raises a serious question in my mind as to the soundness of the distinction. And, if there is such a distinction, it appears to me that our law concerning drunk drivers may very well serve the same purpose, i.e., it does not enhance punishment on account of the prior conviction but rather enforces an “essentially civil disability through a criminal sanction“—keeping the drunk driver off the road.
Finally, I am not convinced Article I, Section 12, of the North Dakota Constitution provides any greater protection than does the Sixth Amendment to the United States Constitution. Although the wording in the North Dakota Constitution is somewhat different, the significance of that difference escapes me and is not explained by the majority opinion. I agree with the majority opinion the history of our statutory law is that defendants in county and district court were entitled to counsel. Whether those provisions were equally applicable to municipal court may be open to question. But, as discussed below, I would reserve for another day the question of whether or not our constitutional provision provides greater protection than does the Sixth Amendment. Statements in the majority opinion, including those at footnote 6,
After having written the above, perhaps I should dissent rather than concur specially. However, I agree with the majority that uncounseled convictions are not always reliable.1 I further agree with the majority that, as a matter of policy, the record in municipal court as well as other courts should reflect that a defendant was advised of his right to counsel (and the appointment of counsel in his behalf if he is indigent and entitled to appointment of counsel under Argersinger) and his voluntary waiver of counsel if, indeed, that happened. I believe a fair reading of
ERICKSTAD, C.J., concurs.