Opinion
No. 88-CA-1439.
January 17, 1989. Rehearing Denied March 15, 1989.
APPEAL FROM JUVENILE COURT, ORLEANS PARISH DIVISION A, STATE OF LOUISIANA, HONORABLE ERNESTINE GRAY, J.
Harry F. Connick, Dist. Atty., Michael J. Bernard, Asst. Dist. Atty., Shelley Vix, Asst. Dist. Atty., New Orleans, for the State.
Mark McTernan, McTernan Parr, New Orleans, for defendant/appellant.
Before SCHOTT, C.J., and WARD and PLOTKIN, JJ.
Walter L. Haley, Sr., was charged with criminal neglect of family pursuant to L.S. A. R.S. 14:74 in Orleans Parish Juvenile Court. Defendant was accused of willfully, intentionally and unlawfully failing to support his minor child, Walishia Haley, born on December 19, 1984. At the trial appellant was found guilty and ordered to pay child support. Haley appeals, arguing that when he was arraigned he did not make a knowing and intelligent waiver of his rights to be represented by counsel and to remain silent.
Haley maintains that the court committed reversible error by not inquiring into his background, age, education, experience, or whether he was aware of the elements of the offense or the defenses. He relies on Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), where the Supreme Court held that a trial court must inform the defendant "of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with his eyes open'. . ." Appellant argues that his case is on all fours with State v. St. Pierre, 515 So.2d 769 (La. 1987), in which the Supreme Court of Louisiana stated:
a defendant charged under R.S. 14:74 should be advised of his right to counsel. . . Any waiver of those rights must be knowingly and voluntary, and duly evidenced in the record.
At Haley's arraignment, April 8, 1988, the following colloquy occurred:
THE COURT:
Mr. Haley, you are here as a result of a Bill of Information being filed by the District Attorney's office alledging [sic] that you have unlawfully failed to support your minor child.
As a result of this Bill of Information being filed you have a right to have an attorney represent you in these proceedings, either one hired directly by you or if you can not afford one, one appointed by the Court.
You have a right to have a trial in this matter where the State has to prove their case beyond a reasonable doubt. You have a right to question any witnesses called against you by the State. You have a right to subpoena, to have, [sic] witnesses testify in your behalf as well. You have a right to make a [sic] not to make any statements that would indicate you violated the law.
If you are found guilty you can be fined $500.00 or sentenced to serve six months in Parish Prison or both. If you enter a plea of guilty the same punishment could be imposed.
If you do wish to proceed in this matter you can enter a not guilty plea and talk about it to the District Attorney and agree to an amount of support to be paid. You can then be ordered to pay support on a weekly, bi-weekly, or monthly basis.
Do you understand why you are here?
MR. HALEY:
Yes, ma'am
THE COURT:
Do you understand your rights?
MR. HALEY:
Yes, ma'am
THE COURT:
Do you wish to proceed with or without an attorney?
MR. HALEY:
Without.
THE COURT:
How do you plead, guilty or not guilty?
MR. HALEY:
Not guilty.
Appellant notes that in recent cases in which the colloquy between the judge and the defendant is as brief as the instant case or even those in which the judge inquires as to the defendant's years of schooling and age have been held to be inadequate inquiries in assessing the defendant's literacy, competency, understanding, and volition. State v. Adams, 526 So.2d 867 (La.App. 3rd Cir. 1988); State v. Skeetoe, 501 So.2d 931 (La.App. 2d Cir. 1987).
The State argues that the cases the defendant relies on are distinguishable from the instant case. In State v. St. Pierre, supra, defendant entered a guilty plea; here defendant pled not guilty. Moreover, Skeetoe, supra, involves a felony offense and in felony cases all rights attach; in misdemeanor cases rights attach at actual imprisonment. The State notes that Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), which extended the right to counsel to all indigent misdemeanor defendants faced with a potential jail sentence, was modified by Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383 (1979), which held that as long as the indigent defendant was not sentenced to imprisonment, the state is not required to appoint counsel for him, even if the offense is one which is punishable by imprisonment. Here no imprisonment was imposed. Therefore, the State argues, defendant had no right to counsel and thus the right to a knowing and intelligent waiver of counsel becomes irrelevant.
We disagree. In Scott v. Illinois, supra, the court dealt with petty offenses for which imprisonment would be unlikely. We find that because imprisonment is frequently imposed in cases of criminal neglect, Scott does not apply. The penalty for criminal neglect is stated in La.R.S. 14:74 D(1):
Whoever commits the offense of criminal neglect of family shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both,. . .
In the instant case, at the close of the hearing when defendant was found to be guilty and was condemned to make payments through the court, the judge warned him of the consequences of not paying:
By the provisions of this order, if you are found guilty of contempt you will pay a fine of five hundred dollars ($500.00), or spend time in the parish prison, or both.
Under Argersinger v. Hamlin, supra 92 S.Ct. at 2012, no one may be imprisoned for any offense "whether classified as petty, misdemeanor, or felony" unless he made a knowing and intelligent waiver of counsel or was represented by counsel at his trial. The defendant charged with criminal neglect has a special need of counsel and his waiver must be made knowingly. This offense, while classified as petty or a misdemeanor because of the lower fine and the penalty of less than six months imprisonment, imposes an unusual burden on the party found guilty for he must make child support payments under the threat of imprisonment for the number of years until the minor reaches majority.
Furthermore, we find that in the instant case the defendant did not make a knowing and intelligent waiver of counsel. Although courts have declined to propose a formula that the trial court must follow to find whether defendant has waived his right to counsel, State v. Carpenter, 390 So.2d 1296 (La. 1980), they have stated that the facts and circumstances of each case, including the background, experience, and conduct of the accused, determine whether there has been an intelligent waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In State v. LaFleur, 391 So.2d 445 (La. 1980), the court concluded that before the judge can accept the defendant's waiver of counsel, the record must evidence that the court determined the defendant's literacy, competency, understanding and volition. While we do not agree with the defendant that he had a right to have the elements of the offense and the defenses explained to him, we find that there was not an intelligent waiver in this case. The court made no effort to determine the defendant's competency; she asked the defendant nothing about his understanding of the procedures. Because the defendant did not knowingly waive his right to counsel, his conviction of R.S. 14:74 must be reversed and remanded.
The reversal of the sentence on the first error pretermits our consideration of the second error.
REVERSED AND REMANDED.
SCHOTT, C.J., concurs.
I concur with the result reached by the majority. The accused may waive his right to counsel and exercise his right to self-representation so long as the record reflects that the waiver of counsel had been made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The constitutional right to counsel is limited to cases that actually lead to imprisonment Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
In State v. St. Pierre, 515 So.2d 769 (La. 1987), the Louisiana Supreme Court held that a defendant charged under R.S. 14:74 must be advised of his right to counsel and a waiver of this right must be knowing and voluntary and duly evidenced in the record. This case involved contempt proceedings brought against a defendant who failed to comply with a support stipulation and who was not represented by counsel at the original proceedings concerning criminal neglect of family. For his contempt the defendant was sentenced to spend three weekends in parish jail. In the case at bar, the defendant has been convicted but he was neither fined nor imprisoned but merely ordered to pay child support pursuant to R.S. 14:74, which order is subject to enforcement through contempt proceedings.
Judicial economy dictates that we consider this matter before the defendant faces such contempt proceedings. The approach of the Supreme Court of Louisiana predicates the validity of the contempt proceedings upon what transpired at the original proceedings pertaining to criminal neglect of family. The defendant chose to exercise his right to self-representation and to waive his right to assistance of counsel.
The record, however, fails to reflect evidence that would support a knowing and intelligent waiver of counsel as required under Faretta, supra. Before a defendant can validly waive his right to counsel, the trial judge must make an on-the-record determination of the particular facts and circumstances surrounding each case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Pertinent to such a determination is the trial judge's assessment of a defendant's literacy, competency, understanding and volition. Faretta, supra; State v. LaFleur, 391 So.2d 445 (La. 1980). The record must also reflect that the defendant's choice of self-representation is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La. 1977). Such a choice can only be made after a defendant has been made aware of the dangers and disadvantages of self-representation "so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta, supra, 95 S.Ct. at 2541; State v. Adams, 526 So.2d 867 at 868 (La.App. 3rd Cir. 1988). In the case at bar, the scant colloquy between the court and the defendant fails to provide the information necessary to support a finding that the defendant made a knowing and intelligent waiver as defined under the case law.