Opinion
No. 2001 KA 0386
March 28, 2002
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON, LOUISIANA TRIAL COURT NUMBER 14,779 HONORABLE M. DOUGLAS HUGHES, JUDGE.
David L. Guidry, Livingston, LA, Attorney for State-Appellee.
M. Michele Fournet, Baton Rouge, LA, Attorney for Defendant-Appellant Phillip Lentz, Jr.
BEFORE: WHIPPLE, FOGG, AND GUIDRY, JJ.
The defendant, Phillip Lentz, Jr., was charged with one count of attempted aggravated burglary, a violation of LSA-R.S. 14:60 and 14:27, and one count of aggravated burglary, a violation of LSA-R.S. 14:60. After a trial by jury, he was found guilty of attempted aggravated burglary on both counts. The trial court sentenced the defendant to ten years at hard labor on each count, to be served consecutively. The state filed a habitual offender bill of information charging the defendant as a third-felony habitual offender. Subsequently, the defendant filed a motion for new trial. The trial court denied the motion and, after a hearing, adjudicated the defendant as a third-felony habitual offender. The trial court then imposed a sentence of life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.
About 2:00 a.m. on July 27, 1999, the defendant began beating the door of a residence in Walker with a baseball bat. One of the residents armed himself with a gun, and the defendant walked away. The defendant then approached a second residence in Walker and began beating the door. The resident of the second home armed herself and, after hearing the defendant break a window, fired shots. The defendant was injured and ran from the home into a ditch, where he remained until he was arrested.
In his first assignment of error, the defendant asserts the trial court erred in denying his motion for new trial. He contends that his defense counsel was ineligible to practice law at the time of his trial, rendering his convictions invalid. The defendant seeks a per se rule that his counsel, ineligible to practice law for the failure to complete mandatory continuing legal education (CLE) requirements, violated his constitutional guarantee of the assistance of counsel.
At the hearing on the defendant's motion for new trial, his appointed trial attorney, Edward Domm, testified that in July of 2000, he received a letter from the Louisiana State Bar Association advising him that he had not completed the required CLE and that he was given thirty days to correct the problem. Mr. Domm further testified that the letter he received informed him that if he did not submit certification of the required CLE, he would be suspended from the practice of law. Mr. Domm explained that he lacked the required one hour of professionalism. At the hearing, the defendant introduced a Louisiana State Bar Association document certifying that Mr. Domm was "not an active member in good standing" as of August 14, 2000. The defendant's trial began on August 15, 2000. Mr. Domm testified that after the trial he obtained the required one hour of professionalism. The trial court denied the motion for new trial.
La. Sup. Ct. Rule XXX, CLE R. 3 establishes the CLE requirements. La. Sup. Ct. Rule XXX, CLE R. 6 addresses noncompliance. We note that La. Sup. Ct. Rule XXX, CLE R. 6(b) and Reg. 6.1 provide that an attorney on the noncompliance list must furnish documentation of his compliance within sixty days.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right exists, and is needed, in order to protect the fundamental right to a fair trial. Strickland, 466 U.S. at 684, 104 S.Ct. at 2063.
The guarantee of "[a]ssistance of counsel" means, at the least, "representation by a licensed practitioner." Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983). An unlicensed practitioner, unauthorized to practice law within the state, fails to meet the guarantee of counsel afforded a criminal defendant by our constitution. Representation by an individual precluded from practicing law before the court cannot satisfy the defendant's constitutional right to counsel.
When the accused has been deprived of representation by counsel, he is entitled to relief without proving that he was prejudiced by the deprivation. United States v. Novak, 903 F.2d 883 (2d Cir. 1990). In reaching this result, we decline to follow the reasoning utilized by our brethren in the Fourth Circuit in the case of State v. McKinsey, 2000-0406 (La.App. 4 Cir. 1/17/01), 779 So.2d 993, writ denied, 2001-0447 (La. 1/25/02), 806 So.2d 667. The assistance of counsel is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Because we find merit in this assignment of error, we pretermit the other assignment of error raised on appeal.
Accordingly, the defendant's convictions and original sentences are reversed, and we remand this matter to the trial court.
CONVICTIONS AND SENTENCES REVERSED; CASE REMANDED.
WHIPPLE, J., dissents, for reasons assigned.
Citing Solina v. United States, 709 F.2d 160 (2d Cir. 1983), the majority herein adopts for this circuit a per se rule that "[a]n unlicensed practitioner, unauthorized to practice law within the state, fails to meet the guarantee of counsel afforded a criminal defendant by our constitution" and that "[r]epresentation by an individual precluded from practicing law before the court cannot satisfy the defendant's constitutional right to counsel," with no requirement of any showing of prejudice.
However, I find that the sole Louisiana case addressing the issue presented herein is both well-reasoned and legally correct. In State v. McKinsey, 2000-0406, p. 14 (La.App. 4th Cir. 1/17/01), 779 So.2d 993, 1000-1001, defendant complained that his trial attorney was ineffective because he was ineligible (based upon his noncompliance with state CLE requirements) to practice law. The Fourth Circuit noted that defendant failed to cite case law supporting his position and to specify his counsel's prejudicial acts, which were caused by noncompliance with the professional education requirements. The court explained that the defendant must make allegations of ineffectiveness and show prejudice. The court further found that the record of all the proceedings showed that defendant was ably represented by his attorney.
Additionally, in People v. Ngo, 14 Cal.4th 30, 57 Cal.Rptr.2d 456, 924 P.2d 97, (Cal. 1996), the California Supreme Court addressed the question of whether an attorney, who is on inactive status because of failure to meet CLE requirements, constitutes a per se denial of the right to counsel guaranteed by the California Constitution. The court reviewed the professional rules relating to CLE requirements and the relationship of the CLE requirements to competency. The California Supreme Court concluded that the representation of a criminal defendant by an attorney who has been involuntarily enrolled on inactive status for CLE noncompliance does not, in itself, amount to a denial of counsel.
Similarly, in Henson v. State, 915 S.W.2d 186, 194-195 (Tex.Ct.App. 1996), the Texas court concluded that a suspension for technical violations such as nonpayment of bar dues or noncompliance with CLE requirements does not deny a defendant the right to counsel. The court further concluded that the defendant's conviction would not be reversed absent a showing that the attorney rendered ineffective assistance of counsel.
In U.S. v. Maria-Martinez, 143 F.3d 914 (5th Cir. 1998), cert.denied, 525 U.S. 1107, 119 S.Ct. 876, 142 L.Ed.2d 776 (1999), defendant appealed his guilty plea which was entered while he was represented by an attorney who had been barred from practicing for six months in Fifth Circuit courts. The court addressed the res nova issue of the application of a per se ineffectiveness rule and declined to establish such a rule in cases of representation by uncredentialed lawyers.
Considering these cases, I find no basis to forge new ground herein and establish a per se rule of ineffectiveness when a defendant is represented by an attorney who is ineligible to practice law. In the instant case, the defendant made no specific claims of deficient conduct by his attorney or of any prejudice whatsoever from his attorney's acts or omissions. However, under the rule now adopted by the majority, defendant is not required to do so. In my view, there is no sound basis for such a rule. Accordingly, I dissent from the majority's opinion herein and would affirm.