State v. Borst, 40967

• Decision Date: 01 December 1967
• Docket Number: No. 40967,40967
• Citation: 154 N.W.2d 888,278 Minn. 388
• Parties: STATE of Minnesota, Respondent, v. George A. BORST, Relator.
• Court: Minnesota Supreme Court

Page 888

154 N.W.2d 888

278 Minn. 388

STATE of Minnesota, Respondent, v. George A. BORST, Relator.

No. 40967.

Supreme Court of Minnesota.

Dec. 1, 1967.

Syllabus by the Court

In the trial of a charge defined as a misdemeanor, where the court may impose a sentence involving incarceration in a penal institution or jail, a defendant unable to procure counsel in his own behalf is entitled to have counsel appointed to represent him.

Michael D. Weinberg, Minneapolis, for relator.

Douglas M. Head, Atty. Gen., Gerard M. Snell, Acting Sol. Gen., St. Paul, James A. Wilson, Co. Atty., Park Rapids, for respondent.

Keith Stidd, City Atty., Curtis H. Foster, Asst. City Atty., Minneapolis, James J. O'Connor, Hastings, amicus curiae.

OPINION

KNUTSON, Chief Justice.

Defendant Borst was a candidate for sheriff of Hubbard County in the November 1966 election. During the course of the campaign he issued a circular regarding the qualifications of the incumbent sheriff, who was his opponent. He was charged with unlawfully and knowingly publishing a false statement in regard to a candidate to be voted upon, contrary to Minn.St. 211.08. A violation of this statute is a misdemeanor. He was arraigned in municipal court in Hubbard County on November 9, 1966, and granted a continuance at that time in order to retain counsel. On November 21 he appeared without counsel, alleging that he was financially unable to procure counsel, and requested the court to appoint counsel for him. The court informed him that counsel could not be appointed for him, and when he refused to plead to the charge, the judge entered a plea of not guilty in his behalf and set his trial for November 30. On November 30 Borst appeared pro se. He offered no testimony, introduced no exhibits made no statements, and conducted no cross-examination. The court found him guilty and sentenced him to a fine of $100 or, in default of payment, to imprisonment in the Hubbard County Jail for 30 days. He paid the fine under protest. Thereafter he filed a notice of appeal to the Hubbard County District Court. ¹ He applied to the district court for appointment of counsel, which was denied. He then petitioned this court for an alternative writ of mandamus, seeking to compel the district court to appoint counsel in his behalf. We issued our alternative writ, returnable August 14, and in view of the importance of the question, set the case for oral argument.

The question presented here is whether defendant is entitled to have counsel appointed for him in a misdemeanor case, assuming that he is financially unable to procure counsel in his own behalf.

The trial court found that Borst was not indigent. We have examined the record, and since there is some doubt about the validity of this finding, we will assume for the purpose of deciding the main issue that Borst is unable to procure counsel in his own behalf.

The question is a troublesome one and has cause much difficulty throughout the country. The Supreme Court of the United States on three recent occasions has declined to review cases involving this question. In Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137, the court denied certiorari which sought to review a decision of the Supreme Court of Arkansas, Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364, holding there was no duty imposed on the courts to appoint counsel in misdemeanor cases. In Cortinez v. Flournoy, 385 U.S. 925, 87 S.Ct. 314, 17 L.Ed.2d 222, the court declined to review a decision of the Louisiana court; and in DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443, the court denied certiorari in a case decided by the Circuit Court of Connecticut, Appellate Division, State v. DeJoseph, 3 Conn.Cir. 624, 222 A.2d 752. In two of these cases, two members of the court and in one case three members, were of the opinion that certiorari should be granted and the question settled due to the divergence of decisions in various jurisdictions. In Winters v. Beck, Mr. Justice Stewart said (385 U.S. 908, 87 S.Ct. 208, 17 L.Ed.2d 138):

'This decision of the Supreme Court of Arkansas is in conflict with decisions of the United States Court of Appeals for the Fifth Circuit, which has held that indigent defendants have a constitutional right to counsel in misdemeanor cases * * *. This conflict must be resolved, unless the Constitution of the United States is going to mean one thing in Arkansas and something else in Mississippi.'

In the DeJoseph case the Circuit Court of Connecticut, Appellate Division, held that appointment of counsel need not necessarily be furnished in misdemeanor cases and whether it should be rested in the sound discretion of the trial court. State v. DeJoseph, supra. This holding was squarely opposite to the decision of the Federal District Court for the District of Connecticut, Arbo v. Hegstrom, D.C., 261 F.Supp. 397. Under Connecticut law, defendant could be sentenced up to 1 year in jail for a misdemeanor. In the DeJoseph case a sentence of 6 months was imposed. In the Arbo case, involving nine violations of the same statute, the Federal District Court said (261 F.Supp. 401):

'* * * It would be a gross perversion of solid constitutional doctrine to find a rational distinction between one year in jail (a misdemeanor) and one year and a day in prison (a felony.)'

Other courts that have passed upon this issue have come to inconsistent conclusions. In some cases decisions are based on the fact that no provision is made for appointing counsel in a misdemeanor prosecution as such. In other cases, the courts seem to base decision on the seriousness of the offense; and in still other cases they hold that a misdemeanant is entitled to counsel regardless of the nature of the crime. In the absence of a definitive decision by the ultimate authority on the meaning of our Federal Constitution, state courts will have to resolve the matter in the light of their own experience and as they may apply their own constitutions and statutes. An examination of the cases that have passed on the question may be of some help.

At the outset, we are convinced that the right to counsel cannot logically be based on the name given to a crime. The definition of 'misdemeanor' varies from state to state and under Federal law, as does the sentence that may be imposed. Under our statute, Minn.St. 609.02, subd. 1, a crime is defined thus:

"Crime' means conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment or fine or both.'

Subd. 2 defines felony:

"Felony' means a crime for which a sentence of imprisonment for more than one year may be imposed.'

Subd. 3 defines misdemeanor:

"Misdemeanor' means a crime for which a sentence of not more than 90 days or a fine of not more than $100 may be imposed.'

Subd. 4, defines gross misdemeanor:

"Gross misdemeanor' means any crime which is not a felony or misdemeanor.'

A gross misdemeanor is punishable by imprisonment for not more than a year or the payment of a fine of not more than $1,000, or both. § 609.03(2).

Section 611.07, subd. 1, provides that counsel may be appointed for an indigent defendant charged with a felony or gross misdemeanor. Subd. 2 provides for payment of their fees, if such counsel appeal, in cases involving felonies or gross misdemeanors. Our Public Defender Act, Minn.St. 611.14 to 611.29, adopted in 1965, provides that the public defender may represent an indigent person charged with a felony or gross misdemeanor and similarly may represent such defendant on appeal or in a postconviction proceeding.

There are two statutory provisions originally intended to provide a public defender in Hennepin and Ramsey Counties. Section 611.12 applies to counties 'now or hereafter' having a population of 300,000 or more. It was originally intended to apply to Hennepin County. ² Section 611.13, which by its title applies to Ramsey County, covers counties 'now or hereafter' having a population of more than 240,000 and less than 500,000. At the time these statutory provisions were enacted, § 611.13 could apply only to Ramsey County and § 611.12 could apply only to Hennepin County. However, by virtue of growth of population Ramsey County now comes within the provisions of both sections so we assume that it may follow the provisions of either. For the purposes of this opinion, we simply wish to indicate that under both statutes the public defender may be appointed to represent persons charged with a felony or gross misdemeanor. None of the statutory provisions provide for appointment of a public defender to represent a defendant charged with a misdemeanor.

Any consideration of this question today must start with Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805. There the court said:

'* * * (R)eason and reflection require us to recognize that * * * any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.'

From the language of Gideon it would seem that the right to counsel extends to prosecutions for any crime regardless of whether it is a misdemeanor, gross misdemeanor, or felony. But the court's reluctance to review cases involving misdemeanors casts much doubt on the meaning of Gideon and how far its mandate extends.

The case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, involved the application of due process to a juvenile charged with being a delinquent. In holding that due process would apply to such cases, the court made some significant statements with respect to the right of counsel which may or may not cast some light upon Gideon. Among other things, the court said (387 U.S. 29, 87 S.Ct. 1444, 18 L.Ed.(2d) 547):

'* * * He (the juvenile) would be entitled to clear advice that he could be represented by counsel, and, At least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it.' (...