State v. Dvorak, 990135.

• Citation: 604 N.W.2d 445,2000 ND 6
• Decision Date: 19 January 2000
• Docket Number: No. 990135.,990135.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Larry DVORAK, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

604 N.W.2d 445

2000 ND 6

STATE of North Dakota, Plaintiff and Appellee, v. Larry DVORAK, Defendant and Appellant.

No. 990135.

Supreme Court of North Dakota.

January 19, 2000.

Owen K. Mehrer, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee.

David F. Senn, Dickinson, ND, for defendant and appellant.

Robert P. Bennett, Assistant Attorney General, Bismarck, ND, for amicus curiae Attorney General's Office. Submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] Larry Dvorak appealed a criminal conviction for violating a domestic violence protection order. Dvorak argues he did not knowingly and intelligently waive his right to counsel. We conclude this record demonstrates Dvorak voluntarily, knowingly, and intelligently waived his right to counsel. We affirm.

I

[¶ 2] In April 1998, Dvorak was charged under N.D.C.C. § 14-07.1-06 with violating a domestic violence protection order by contacting his children and his ex-wife's parents in contravention of a protection order issued in May 1997. The complaint alleged the offense was Dvorak's second violation of the protection order and therefore was a class C felony.

[¶ 3] On June 2, 1998, Dvorak appeared at his initial appearance with attorney Robert Keogh. The court advised Dvorak of his rights under N.D.R.Crim.P. 5, including an indigent's right to court-appointed counsel. Keogh informed the court he would not be representing Dvorak in the criminal proceeding, and Dvorak said his attorney would be Tom Slorby. Dvorak subsequently applied for court-appointed counsel, and the court appointed William Heth to represent Dvorak.

[¶ 4] Heth represented Dvorak at a preliminary hearing and arraignment in June 1998. Thereafter, a jury trial was scheduled for September 8, 1998. In August 1998, Dvorak, through Heth, moved for a continuance, alleging Dvorak "was in the midst of harvesting season" and "needed additional time to contact his witnesses." The court denied Dvorak's motion. At a pretrial conference on September 1, 1998, Dvorak appeared with Heth and with attorney T.L. Secrest. Heth advised the court that Dvorak wanted to retain Secrest as counsel. The court allowed Secrest to substitute as counsel for Dvorak and granted a continuance. A jury trial was rescheduled for December 21, 1998.

[¶ 5] Dvorak failed to appear for the rescheduled trial, and the court issued a bench warrant for his arrest. Dvorak was arrested on January 7, 1999, and the trial was rescheduled for February 5, 1999. Meanwhile, on December 21, 1998, Secrest moved to withdraw as Dvorak's attorney, claiming Dvorak failed to pay attorney fees and failed to communicate and provide evidence to enable Secrest to effectively represent Dvorak. The State did not resist Secrest's motion, and the court allowed Secrest to withdraw as counsel on January 8, 1999.

[¶ 6] At a January 28, 1999 status conference, the court noted Dvorak was representing himself, and the following colloquy occurred:

THE COURT: Okay. Well, I want it to be clear that you [Dvorak] were aware of [the February 5, 1999 trial date] and make sure that everyone is ready to proceed. Is that the case Mr. Dvorak?

MR. DVORAK: Well, I've been trying to find an attorney. I've been making phone calls like crazy all week here trying to get something going. It's pretty difficult to find an attorney out of town that would come down here. I think I might have one. I've got to call him back today.

THE COURT: All right. Well, you know we're summoning all of the jurors in and of course, we don't want to do that knowing that you're not prepared or something.

MR. DVORAK: Well, I think if I do get an attorney he's going to want an extension on it too, you know, catch up on everything. I got to know today cause—it's such ridiculous charges I can't see where it could even go to court.

THE COURT: Well, if you're going to make a motion I think in fairness to Mr. Mehrer and to the Court and to everyone involved that we need to know this immediately, as soon as possible.

MR. DVORAK: Yeah. Well, I'm going to have to ask for an extension because I mean I can't go into court without an attorney. There's no way. I've talked to about five different attorneys and either the distance and a few other things that has come up and they just kind of put aside or whatever you want to call it.

THE COURT: Well, before I ask I'm going to ask Mr. Mehrer to respond on behalf of the State. I guess the Court's concern is even if the Court sees fit to grant you a continuance or extension because you're having difficulty in getting in an attorney is that going to make a difference or are we going to have the same problem whether it's two weeks from now or a month from now.

The court thereafter granted Dvorak another continuance and scheduled a March 8, 1999 pretrial conference and a March 15, 1999 trial. The court informed Dvorak:

Of course, if you fail to appear you know you have a bond posted and you have to appear or you forfeit your bond. If you get an attorney, of course, immediately have him file a notice of appearance so we know who the attorney is and I want—we've had this matter pending for quite sometime so you have to know now that it's not going to be continued again. I think we've gone probably a few steps too far already. We're stuck with that date and don't expect to come in at the last minute and ask for another extension or continuance.

[¶ 7] At the March 8 pretrial conference, Dvorak appeared without counsel and informed the court he would waive his right to a jury trial. The court asked Dvorak whether he was voluntarily waiving his right to a jury trial, and Dvorak responded, in part, "I guess. I don't have no attorney so." Dvorak represented himself during the March 15, 1999 bench trial, and the court found him guilty of violating the domestic violence protection order.

II

[¶ 8] On appeal, now represented by court-appointed counsel, Dvorak argues he did not knowingly and intelligently waive his right to counsel in the trial court.

[¶ 9] A criminal defendant's fundamental right to counsel is guaranteed by the Sixth Amendment of the United States Constitution and by N.D. Const. art. I, § 12. City of Fargo v. Rockwell, 1999 ND 125, ¶ 7, 597 N.W.2d 406; State v. Wicks, 1998 ND 76, ¶ 16, 576 N.W.2d 518; State v. Poitra, 1998 ND 88, ¶ 7, 578 N.W.2d 121. The denial of a defendant's right to counsel at trial is not subject to harmless error analysis and requires reversal of the defendant's conviction. Rockwell, at ¶ 7; Wicks, at ¶ 17; Poitra, at ¶ 7; State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635.

[¶ 10] In Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held criminal defendants have a corollary right under the Sixth Amendment to conduct their own defense. Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406; Poitra, 1998 ND 88, ¶ 8, 578 N.W.2d 121; Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635; State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451. Criminal defendants who proceed pro se necessarily relinquish many of the benefits associated with the right to counsel, and in order to proceed pro se, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. Rockwell, at ¶ 8. A defendant need not have the skill and experience of a lawyer to competently and intelligently choose self-representation, but the defendant should be aware of the dangers and disadvantages of self-representation so the record establishes the choice is made with eyes open. Faretta, at 835, 95 S.Ct. 2525.

[¶ 11] An unavoidable tension exists between the right to counsel and the right to self-representation, because asserting one right necessitates a waiver of the other. In recent years, we have become increasingly involved with the tension between those mutually exclusive rights. In Harmon, 1997 ND 233, ¶ 23 n. 1,575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested "[t]rial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation." Although we have not required trial courts to engage in a specific colloquy with a defendant who appears pro se, we prefer that trial courts eliminate any ambiguity about a waiver by making a specific on-the-record decision the defendant voluntarily, knowingly, and intelligently waived the right to counsel. Rockwell, 1999 ND 125, ¶ 15,597 N.W.2d 406; Poitra, 1998 ND 88, ¶ 8,578 N.W.2d 121; Harmon, at ¶ 22. Our preference for an on-the-record determination parallels the well-established principle that a waiver of the right to counsel will not be presumed from a silent record and courts will indulge every reasonable presumption against waiver. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State v. Gustafson, 278 N.W.2d 358, 362 (N.D.1979). See State v. Wilson, 488 N.W.2d 618, 620 (N.D.1992)

(stating similar principle for waiver of right to new trial); State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984) (stating similar principle for waiver of right to jury trial).

[¶ 12] We have applied a two-step inquiry to analyze a criminal defendant's waiver of the right to counsel and decision to proceed pro se: (1) whether the defendant's waiver of the right to counsel was voluntary; and (2) whether the defendant's waiver was knowing and intelligent. Rockwell, 1999 ND 125, ¶ 9, 597 N.W.2d 406; Harmon, 1997 ND 233, ¶ 22, 575 N.W.2d 635. See Patterson v. Illinois, 487 U.S. 285, 292 n. 4, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)

(stating waiver of right to counsel must be voluntary and knowing and intelligent).

A

[¶ 13] In Harmon, 1997 ND 233 at ¶¶ 15, 21, 575 N.W.2d 635, we rejected an argument the...